Cavalry I SPV asked by judge for signed contract

[MikeJones]

In question is a debt of $12,000 from an old Citibank card charged off July 2012, junk collector Cavalry SPV is now pursuing me.  Case is ongoing in my municipality in Ohio.

I have answered all of their requests and interrogatories and attended a pre trial conference May 2.  I believe I caught them offguard as they assigned a new local lawyer that very morning.

At the Pretrial I denied everything and the Cavalry Lawyer kept badgering me for my birthdate and social security, I simply stated you guys should already have this and know who I am.

Long story short, the Judge asked Cavalry as to where is the signed contract?  The Cavalry attorney pulled out 100’s of pages of statements, 4 years worth showing my name.  The Judge smirked and asked, again, where is the signed contract to show the defendant is the owner, the Cavalry Attorney sat silent.  To which the Judge scheduled yet another pre-trial in June.

Being a novice pro se, I immediately the next day filed a request for production, the first request was to “produce any credit application signed by the defendant”.  Today I did indeed receive a response to my request that states, “Objection the request calls for the production of documents in excess of the two year record retention period set forth in CFR 226.25 Plaintiff states that it is not in possession of any document which may be responsive to this request.”

So now my question is, do I wait for the next pretrial and see what the Judge says, or in the meantime file a more definitive motion?  Their evidence is 4 years of credit card statments from 2008-2012. Card charged off July 2012.  I highly doubt they are in possession of any signed contract, whether it be physical or electronic.

What is the best course of action?

[BV80]

@MikeJones

What is the cause of action?   Breach of contract?  Account stated?

[Harry Seaward]

The judge in your case is looking for any reason to go against Cavalry.  You can probably do nothing more and he will rule against them.  The problem for you is that a signed contract is not required to prove you incurred a debt.  I'm sure your judge knows this but, as I said, he doesn't care and just wants to stiff Cavalry.  Since this is a $12,000 debt, I would expect Cavalry to appeal a 'no signed contract' judgment against them, at which point the appellate court will find the trial court erred and will kick the case back to the same judge who will have no choice but to award a judgment to Cavalry.

I'm sure it's too late now so this is a lesson for next time, but you could have made this go away using Arbitration if you had executed that strategy before getting into discovery and too far into litigation.  Who knows, a judge like yours may still go for it at this point.

[BV80]

2 hours ago, Harry Seaward said:

I'm sure it's too late now so this is a lesson for next time, but you could have made this go away using Arbitration if you had executed that strategy before getting into discovery and too far into litigation.  Who knows, a judge like yours may still go for it at this point.

That could depend upon when he opened the account.  Cap1 ceased placing arbitration provisions in agreements somewhere around 2009 or 2010.  In the event the account was opened before that time, he'd have to rely upon survivability.

[BV80]

@MikeJones

I agree with @Harry Seaward.  The judge could be extremely friendly to consumers/debtors.  However, there's OH court precedent that shows signed contracts are not necessary to prove a contract.  The reason is because using an account creates a contract.   You make charges to the account and the credit card bank pays the merchant to whom you made the charges.  That creates a contract between you and the credit card bank.

In the event the judge would rule in your favor, we have no way of knowing if Cap1 would appeal.  If they did, they'd have court precedent in their favor,

[MikeJones]

Yes, it is a breach of contract for a credit card debt.  Of note, address stated in all statements seems to be a random out of state Virginia address.  I’ve never resided in Virginia.  Also, of note, I have a foreign name and the Cavalry attorney stated to the Judge “his name is unique it’s not as if it is Joe Smith”.  The Judge cleared his throat and said pardon? The attorney did not repeat this statement. 

My personal financial situation is catastrophic, near financial ruin, post divorce and personal judgement errors.  I have nothing to offer in arbitration, have no property, no car, and minimal savings in cash. Substantial child support arrearage.  Paycheck already garnished to the max allowable in Ohio. And clearly, filing for bankruptcy does not eliminate child support. It’s a catch 22.

Hence my pro se defense.

[WhoCares1000]

You are correct that BK does not eliminate the child support, however it will eliminate most everything else (unless you have income tax debt and/or school debt). That means that the only issue remaining is the child support and after 10 years, the BK would leave your record.

Another option is that since you are collection proof and will be for many years, let them get a judgement and then just as the child support is going to end, then pull the BK trigger. It will take longer to clean up but if you have a medical emergency or something happen in the meantime, you can just include that in the BK. You might even be able to settle with the stale judgements toward the end of child support if you can show the creditors you are a BK waiting to happen and they will get nothing in the end.

[MikeJones]

33 minutes ago, WhoCares1000 said:

You are correct that BK does not eliminate the child support, however it will eliminate most everything else (unless you have income tax debt and/or school debt). That means that the only issue remaining is the child support and after 10 years, the BK would leave your record.

Another option is that since you are collection proof and will be for many years, let them get a judgement and then just as the child support is going to end, then pull the BK trigger. It will take longer to clean up but if you have a medical emergency or something happen in the meantime, you can just include that in the BK. You might even be able to settle with the stale judgements toward the end of child support if you can show the creditors you are a BK waiting to happen and they will get nothing in the end.

I concur with your BK comments, and fully agree.

I am clean and debt free of student loans and all federal, state and local taxes. I am the textbook definition of financial ruin. Although, now, I live a much simpler life of cash, paying rent and utilities on time and keeping up to date on child support.

Am I wrong in my worst case scenario thinking:  Cavalry gets default judgement, nothing to garnish until child support is finished in 11 years, in the meantime Cavalry pursues property and bank account liens, gets nothing as there is nothing?  At the same time interest keeps piling up for a decade.  

Ultimately, do I continue this pro se charade vs. Cavalry and see where it goes? It seems unless I receive a judgement with prejudice in my favor Cavalry will be going after me forever.

Also, this credit card debt and any mention of Cavalry collection was removed from all three of my credit reports a few months before the intitial Cavalry complaint.  To this day, the original Citibank debt and Cavalry collection is absent from all 3 reports.

 

[WhoCares1000]

You can continue to pursue this and see where it goes. If you get a dismissal w/o prejudice, Calvary would either then have a appeal the decision or file a new case when they get the contract. Also, and dismissal restarts the SOL clock as if the case did not occur, even a long clock as there is in Ohio.

In your case, Calvary has a few options:

1. Just sit on the debt and hope you come into money some day
2. Sell the debt to another JDB with the judgement and they have to decide
3. Keep sending financial depositions every 3 - 6 months hoping that you will miss one and end up in jail so that they can grab the bail money

If they do try #3, make sure to answer all questions honestly and attend all hearings in court to avoid jail. It will be annoying but you have to do it.

Again though, BK will stop all the non-child support creditors. The question is, when to pull the trigger. Don't bother to tell your creditors you plan on doing a BK. They won't believe it anyways.

[MikeJones]

Here we have it, just today Cavalry has filed a motion for summary judgement. “Plaintiff makes said motion since there are no genuine issues of material fact, and as a result, Plaintiff is entitled to judgement as a matter of law. This motion is supported by the attached memorandum and evidence”.  I responded to all of their interrogatories and admissions and denied every paragraph.

The evidence is a few citi card statements with addresses that I never resided in. I live in Ohio, statements went to a random Virginia address.

At the last pre trial, the Judge said, “Summary judgement? Why would there be a summary judgement? Where is the signed contract showing defendant is the owner? Statements with incorrect addresses are not proof of ownership.” The municipal judge specifically said this to the Cavalry attorney (when it was mentioned a motion for summary judgement was coming) .

No evidence of the signed contract, physical/electronic. 

There must be a disconnect, the Cavalry attorney, who was a local attorney assigned last second, heard the judge loud and clear.  Meanwhile, I recieve this motion today directly from Corporate Cavalry/Levy in Columbus, Ohio?  I did not recieve this motion from the local attorney on record.

Thoughts? Do I act? or wait till the next pre-trial June 8th.

[BV80]

15 minutes ago, MikeJones said:

Here we have it, just today Cavalry has filed a motion for summary judgement. “Plaintiff makes said motion since there are no genuine issues of material fact, and as a result, Plaintiff is entitled to judgement as a matter of law. This motion is supported by the attached memorandum and evidence”.  I responded to all of their interrogatories and admissions and denied every paragraph.

The evidence is a few citi card statements with addresses that I never resided in. I live in Ohio, statements went to a random Virginia address.

At the last pre trial, the Judge said, “Summary judgement? Why would there be a summary judgement? Where is the signed contract showing defendant is the owner? Statements with incorrect addresses are not proof of ownership.” The municipal judge specifically said this to the Cavalry attorney (when it was mentioned a motion for summary judgement was coming) .

No evidence of the signed contract, physical/electronic. 

There must be a disconnect, the Cavalry attorney, who was a local attorney assigned last second, heard the judge loud and clear.  Meanwhile, I recieve this motion today directly from Corporate Cavalry/Levy in Columbus, Ohio?  I did not recieve this motion from the local attorney on record.

Thoughts? Do I act? or wait till the next pre-trial June 8th.

 There are issues of material fact. If you can honestly deny having opened the account, then deny opening and using it. There’s also the material fact that you never lived at any address in Virginia.    You can deny having ever received those statements because you never lived in Virginia.  If it were me,  I would provide proof of my address during the relevant time period, but that’s just me. 

[Harry Seaward]

49 minutes ago, MikeJones said:

I live in Ohio, statements went to a random Virginia address.

This is a game changer.  If you never opened or used the account, you need to prepare an affidavit (swear under penalty of perjury and signed by a notary) to this fact.  I would oppose the MSJ using your affidavit as your cornerstone argument.  I know you've got a judge that clearly wants to burn Cavalry, but that doesn't mean they couldn't prevail on an appeal if you don't object to the MSJ.

[MikeJones]

How do I object? Do I combat this in person at the next pre-trial or do I file some sort of counter motion soon?  

Will driver’s license, tax returns, county voting records suffice to prove residency in Ohio?

I am pro se and not financially able to retain counsel. Hence my pleading to this forum.

[Harry Seaward]

You would file a written objection with the court. It would look like the motion they filed but would counter each of their claims. Check your rules.  You may also need to file a separate statement of facts (SOF) in support of your opposition. It would be to this SOF that you would attach all of your supporting documentation. 

[LaneBlane]

Here's a sample affidavit you may be able to revise to meet your state's rules.  You'll also have to check the requirements for notaries in your state.

 

Court Case Header

AFFIDAVIT OF [YOUR NAME]

BEFORE ME, the undersigned authority, duly authorized to administer oaths and take acknowledgments, personally appeared [YOUR NAME], who, after first being duly sworn, deposes and says:

1. My name is [YOUR NAME].
2. I am over the age of eighteen years and not laboring under any difficulties.
3. This affidavit is based upon my personal knowledge.
4. I swear under penalty of perjury that the following is true and correct to the best of my knowledge.
5. I have read the Complaint bearing case number _________________.
6. I have resided in the State of Ohio for [period of time].
7. I have never resided at [address on statements], the address where the statements were mailed.
8. Any other statements you would like to make.

FURTHER, AFFIANT SAYETH NAUGHT.

______________________________
[YOUR NAME], Affiant

SWORN to and SUBSCRIBED before me this ____ day of _______, 2017.

______________________________
Notary Public, State of Ohio

My Commission Expires: ___________________

[ ] Personally known, or
[ ] Identification Produced

______________________________
Type of Identification

[LaneBlane]

What are the Plaintiff's claims?

[WhoCares1000]

If you have evidence that would show you resided in Ohio at the time of the statement, you attach that to your opposition motion as evidence too.

[MikeJones]

I am currently preparing my objection to summary judgment. 

Thank you for your help with the affidavit of residency.

My question is what will suffice for proof of my Ohio residency, I want to be rock solid with this with no ambiguity:

Driver's license (I even have my old one from 2011), county voting record, federal, state, local tax returns?  Unfortunately, I do not have many copies of utility bills going back a few years.  I have several speeding tickets issued by the municipality from a few years ago?

Simply put, there is no way I resided in Virginia, thus I'm certain Cavalry cannot come up with proof to counter my actual Ohio residence. I'm also certain they cannot come up with my signature applying for or signing for this card, whether it be electronic or physical.  I believe they are going all in with existing case law showing that statements prove proof of ownership.  However, as mentioned before the municipal judge has been adamant this is not the case.

Also, Citibank nor Cavalry collection has ever been on my TU, EQ, EX credit reports.  Thus there was no reason to claim identity theft or pursue or anything of the sort.  The Cavalry attorney did ask me why I did not do a police report/fraud alert.  Simply put, this is the first I heard of this debt and to this day it is not on my credit report.

Of note, during the first pre-trial the Cavalry attorney asked me for my birthdate and social security number, I did not comply and said you tell me?  None of their documentation shows my birthdate nor social.  Essentially, they have my name (unique foreign name as the Cavalry attorney stated) and an incorrect address, with 4 years of statements.  It seems the last transaction was July of 2012 on this supposed citibank card.  They have also supplied what seem to be cookie cutter forms; affidavit of their own employee being the custodian of record, a response to my request for production of documents to which they replied in bold lettering "Subject to and without waiving said objection, the attached account statements speak for themselves and evidence the Defendant's obligation."  Also, included is affidavit of non military service, and very cookie cutter and generalized bill of sale and assignment, asset schedule, affidavit of sale of account by original creditor and certificate of conformity.  None of the latter documents mention me by name rather "CBNA sold a pool of charge-off accounts to Cavalry".

Any advice would be much appreciated.

[WhoCares1000]

Drivers license and tax returns will work. Make sure you copy everything and keep the originals to bring to the heard. Other things are city directories, pay stubs, just about anything that shows that you did not reside at the address on the statements on the dates they claim you did. All you need to do at this point is show that there is a material fact in question that would require a judge to decide. That is all you need to quash their motion.

After I got my opposition motion out, I would consider contacting the local library in the community of the address in Virginia and see if they have a city directory and see if they would be willing to copy the pages for each directory from (2010 - 2014) where your name would be. Since your name is unique, one of 2 things would happen. The name either does not show up in the community which means the statements are false or there is someone with the same name and if you show the city directory pages from both your Ohio community and the Virginia community, you can call into question that there are 2 people with the same name and the plaintiff has the wrong person.

BTW, the judge might ask for your SSN or birthdate at the motion hearing if there is one. If the judge requests it, politely answer. The judge has the right to ask that question and it will only help the judge determine if they have the right person or not.

I think they want a police report because it will make it easier on them to convince the client to dismiss rather than try to convince the client that they have the wrong person. In the debt collection industry, they always look for the easy way out.

[Goody_Ouchless]

Have you hit the google button to see if anyone with your name lives in Virginia? We once had a very aggressive process server walk right through the open door of our house looking for someone with the same name. Once we convinced the guy that it wasn't me, my wife asked "so, what did this guy do?" The server responded "trust me, you don't want to be him."

Anyway, I checked and there was somebody with the same name that lived in the area.

 

[Sogeln]

The bill of sale doesn't specify your alleged account?  Then how do they establish standing?  The bill of sale could be for anything.

Do any of their records from the account show valid addresses?  Or are all showing wrong addresses?  

And if they can't establish you as the account holder with anything but a name, how do they show right party of interest?  

[WhoCares1000]

1 hour ago, Sogeln said:

The bill of sale doesn't specify your alleged account?  Then how do they establish standing?  The bill of sale could be for anything.

Do any of their records from the account show valid addresses?  Or are all showing wrong addresses?  

And if they can't establish you as the account holder with anything but a name, how do they show right party of interest?  

99% of these cases do not make it to trial. They usually end up in settlement or default. Those that get to close to trial usually get dismissed. Even there, the plaintiff is hoping to get a summary judgement rather than go to trial.

Because of that, evidence is usually scant because it is not needed. Creditors have gotten better over the years but mistakes will happen. Especially in cases they have one person with no assets and another with the same name with attachable income/assets.

[Brotherskeeper]

On 5/14/2018 at 12:08 PM, MikeJones said:

In question is a debt of $12,000 from an old Citibank card charged off July 2012, junk collector Cavalry SPV is now pursuing me.  Case is ongoing in my municipality in Ohio.

@BV80 Isn't there a possible wrinkle with the statute of limitations for Virginia here? If the account statements indicate a Virginia residence address 4 years prior and during the time of default in July 2012, with no written contract, the Virginia statute of limitations (3 years from the date of “default” for unsigned or verbal contracts. Virginia Code §8.01-246.) expired in July 2015. Wouldn't they if challenged have to demonstrate that MikeJones moved from Virginia sometime before July 2015 in order to toll the running of the limitations period or be able to use Ohio's 6 years? I realize the OP claims he never lived in Virginia, but this issue jumped out to me. 

[BV80]

42 minutes ago, Brotherskeeper said:

@BV80 Isn't there a possible wrinkle with the statute of limitations for Virginia here? If the account statements indicate a Virginia residence address 4 years prior and during the time of default in July 2012, with no written contract, the Virginia statute of limitations (3 years from the date of “default” for unsigned or verbal contracts. Virginia Code §8.01-246.) expired in July 2015. Wouldn't they if challenged have to demonstrate that MikeJones moved from Virginia sometime before July 2015 in order to toll the running of the limitations period or be able to use Ohio's 6 years? I realize the OP claims he never lived in Virginia, but this issue jumped out to me. 

If the OP properly denies ever living in VA (and could include proof), it will be up to the plaintiff to prove otherwise whether or not the VA SOL is raised.  Besides, if the OP denies living in VA, I don't see how he could raise the VA SOL as a defense.

[Goody_Ouchless]

20 minutes ago, WhoCares1000 said:

Especially in cases they have one person with no assets and another with the same name with attachable income/assets.

I hope the suggestion isn't that someone at Cavalry, or wherever, looks into an account they own from a Mr. Elmer Dinkly, sees he is broke, and proceeds to look for a rich Elmer Dinkly to sue instead?

Another thought for OP - what if you search on the address on the statements. Something as simple as that may show someone with your same name living at that address.