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Cavalry I SPV asked by judge for signed contract


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On 5/14/2018 at 4:21 PM, MikeJones said:

Of note, address stated in all statements seems to be a random out of state Virginia address.

No statements show your Ohio address? You're being sued for an alleged Cavalry purchased Citibank $12000 debt incurred during 2008-12 by someone else with the same name living in Virginia during 2008-12? I'm curious to understand how this was explained to you and the judge as being a debt connected to you in Ohio. Did Cavalry claim you moved from Virginia to Ohio? How is that not the threshold issue rather than no signed contract being produced? Who would expect your signature to be on a contract from a guy with the same name who lives(ed) in Virginia? Did Cavalry brush this off as you not filing a police report, so it can't be stolen identity? 

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I have googled, and there isn’t anyone with the same name in Virginia. The address isn’t even a physical address? Not a property, not a P.O. Box, and not military related. I mention this as there is a plethora a military installations in the vacinity in question.

Cavalry has not yet claimed I moved.

The reason why the Incorrect Address issue isn’t the threshold issue, is because the judge was very vocal and would not let the “proof of signed contract” issue go. So, as an amateur, I let him run with it as he repeated this multiple times and cavalry’s attorney kept tripping over himself, thus the judges decision for yet another pre-trial (to give cavalry time to bring/show signed contract).

Now, with this recent motion for summary judgement from Cavalry, I will certainly bring the address to the forefront in my objection and affidavit. 

Also, in the complaint and actual physical statement copies from Citibank, they only show the typical **** **** **** 1234 with only the last four numbers showing.   There has not been a single document filed or submitted showing the full account number.

To minimize confusion, I am attaching the document I have been referring to as cookie cutter. Affidavit of Sale,  this was done in Missouri.  My name only appears on the affidavit of claim from the Cavalry custodian of records and on the Citibank statements.

 

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I’ve been racking my brain over this case. After a review of the Citibank statements filed in my municipal court, all of them show a BLANK account number.  The copy of a few of the statements the Cavalry attorney handed me in person, showed the **** **** **** 1234.  Again, the statement exhibits from citibank, filed with the clerk of courts, do not show any account numbers. This certainly will be added to my objection to summary judgment.

In fact, my name and the incorrect address are in all caps, and copied sideways/perpendicular to the statement itself. In lamens terms, I’d refer to this as copy and paste.  

 

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1 hour ago, MikeJones said:

So, as an amateur, I let him run with it as he repeated this multiple times and cavalry’s attorney kept tripping over himself, thus the judges decision for yet another pre-trial (to give cavalry time to bring/show signed contract).

Not an amateur, you acted like a seasoned attorney. 

 

1 hour ago, MikeJones said:

My name only appears on the affidavit of claim from the Cavalry custodian of records and on the Citibank statements.

I would phrase this as an identical name to yours appears on the affidavit of claim, unless it also has your Ohio address or other personal identifying information that is clearly yours. 

You have proof you lived in Ohio, not Virginia, during all times relevant (to the evidence shown so far) to this alleged account. This is a material fact in dispute that they will never meet their burden to prove otherwise. 

The affidavit of sale alleges the pool of charged-off accounts was sold on June 27, 2016. You'd think Cavalry could do better due diligence than this in the time since the sale. 

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There's no full account number on anything?  Just a name that is the same as yours, and a wrong address.  

If Cavalry files for Summary Judgment it may be a panic move, hoping you won't file a response.  It could be the perfect opportunity to object to their documents for factual errors and lack of clarity.  

All these accounts are sold assuming they are accurate.  With an error like the wrong address it would be easy to cast doubt on the accuracy of all of it.  Cavalry would have to provide documents that verify the documents are accurate.  An affidavit won't help because they aren't going to pay for that person to appear at trial just to expose they have no clue to the accuracy of anything before Cavalry bought it.

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39 minutes ago, LaneBlane said:

If Terri Bergman is the Senior VP of Citibank in Sioux Falls, SD, why was his affidavit notarized in Missouri? 

According to Linkedin, she's senior VP of  Citibank in Independence, Missouri.

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Have you done discovery yet?  It would be interesting to see the Bill of Sale and Sale Agreement that the notice mentions.  

I requested those from the collectors I dealt with and they claimed privileged materials.  I guess they didn't want to admit they only paid a few cents on the dollar.  

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36 minutes ago, Sogeln said:

Have you done discovery yet?  It would be interesting to see the Bill of Sale and Sale Agreement that the notice mentions.  

I requested those from the collectors I dealt with and they claimed privileged materials.  I guess they didn't want to admit they only paid a few cents on the dollar.  

Attaching bill of sale and other documents they sent me in response to my request for production:

 

 

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The problem with internet searches is that they are related to today, not 2011. That is why I said you need to contact the local library and try to get a copy of the city directory page that would pertain to your last name from the time period of the debt. Also interesting that the address does not exist. You might want to contact the city engineer in Virginia and find out if said address ever existed. If you can get a letter from the engineer, that would be more proof that the statements are fake.

They are doing a summary judgement to force the judge to accept their evidence at face value. You need to go in there and give this judge (who is obviously on your side) a substantial reason to deny the summary judgement (not based on no signed contact) and bringing up the fact that you are arguing that you never lived at the address on the statements should be enough to give the judge an airtight reason to deny the summary judgement. You really do not have to provide evidence (but you can if you with). All you have to show is that there is a substantial question that needs a judicial officer to answer.

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15 hours ago, Goody_Ouchless said:

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.

It is either that or they simply searched the name on Google and the OPs came up and they decided to go after the OP. The JDBs have gotten smarter over the years but they still act like their rep suggests once in a while.

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Interesting update from the court:

This case is before the court on the plaintiff's motion for leave to file a motion for summary judgment with an attached motion for summary judgment. A pretrial conference has previously been conducted on May 2, 2018 with a second pretrial conference scheduled for June 8, 2018 at 9:30 a.m. The record shows that the plaintiff has not submitted the required filing fee for the motions. The issues raised by the plaintiff's motion for leave to file a motion for summary judgment to be addressed at the pretrial conference on June 8, 2018. “

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@MikeJones Your research indicates that the Virginia address on the Citibank account statements is not currently a USPS physical address. You haven't found a current resident of Virginia who has your identical name. You don't know if there was such a person living in Virginia during 2008-2012. I'm curious about the 4-year's worth of Citibank account statements. Do they show purchases or use of the card? Do they show payments? If so, is there a reaction or characterization you can share with us without revealing too much? 

You said,  "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." Did you ever dispute either the Citibank or the Cavalry reports with the CRAs when you noticed them?

I'm trying to read between the lines here where the errors may have occurred. If this is stolen or mistaken identity, and you've now been sued for $12,000, you can't know if something else will pop up in the future at an equally inopportune time. If we're looking at mistaken or fraudulently created account statements, that's another potentially serious matter. I agree with @debtzapper and @BV80 that a free consult with an experienced consumer attorney would be very wise. Federal and Ohio consumer laws may have been violated. 

(I am not a lawyer.) I've read the short memorandum for their motion for sumary judgment. If I were in your shoes, I would draft my opposition to address each issue of material fact they claim they've met their burden for. It would be very helpful if you could post the redacted motion itself that the memorandum is attached to. The Virginia address on the statements and your proof of Ohio residency attached to your affidavit is a material issue they will have no rebuttal for nor any evidence to produce to refute it. Their records will have no indicia of trustworthiness. 

Ohio rules of Evidence

"RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available
as a witness:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

 

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To reiterate, every single credit card statement Cavalry filed and entered into evidence with the court shows a blank account number, wrong address, and no purchases, only payments, returned funds, insufficient funds.  However, some of the copies that the Cavalry attorney handed me in person have the **** **** **** XXXX  last 4 showing on the statements, with purchases at stores and restaurants over the course of the account.  He did not hand me every single statement of the 4 years in question.  The Cavalry attorney stated, we know its you, your name is very unique (he means foreign) but if you are inferring it is not you, than please give me your social security and birth date so we can double check. To which I replied no, because I figured they will just enter that info on a excel spreadsheet or create an in house document like they have done in regards to the custodian of record affidavit.  Clearly, I will give any such personal information to the Judge if asked.

The redacted motion itself you ask for is short and reads: "Now comes the Plaintiff, Cavalry SPV I, LLC, by and through legal counsel, and moves the Court to grant it Leave to file a Motion for Summary Judgment according to Rule 56 of the Ohio Rules of Civil Procedure in this matter.  Plaintiff believes this case can be resolved via a Motion for Summary Judgment due to the fact that no disputed facts exist and that accordingly Plaintiff is entitled to a judgment as a matter of law."

Should I keep my response to their motion short and sweet or...

Am I correct to immediately file a Opposition to the Plaintiff's motion for summary judgment? Attaching an affidavit stating I never resided in VA?  Questioning Cavalry's chain of custody of documents? The bill of sale and assignment, affidavit of sale of original account are very general, my name is no where to be found and they use terms like "sold a pool of charged-off accounts".

The custodian of record affidavit lists my name with the **** **** **** XXXX last four account number. And they have also entered an actual excel spreadsheet with my name and amount of the debt. The account # and social # is blanked out?  Perhaps a motion to strike their affidavit?

Do I wait for a trial date and then hit the custodian of record with a subpoena?  Do I strike while the iron is hot and file an immediate counterclaim listing FDCPA violations?

I will attempt to contact the above reference attorney for a free consult.  I simply cannot afford to retain anyone at this juncture.

 

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22 minutes ago, MikeJones said:

To reiterate, every single credit card statement Cavalry filed and entered into evidence with the court shows a blank account number, wrong address, and no purchases, only payments, returned funds, insufficient funds. 

How were these "filed" with the court? Attached to an affidavit submitted with the complaint? I don't know Ohio court rules. Are discovery requests and responses also filed with the court? 

1 hour ago, MikeJones said:

However, some of the copies that the Cavalry attorney handed me in person have the **** **** **** XXXX  last 4 showing on the statements, with purchases at stores and restaurants over the course of the account.  He did not hand me every single statement of the 4 years in question. 

So the copies the attorney handed you were not filed with the court either with the complaint or with the motion for summary judgment? 

When you say **** **** **** XXXX, do you mean except for the last 4 digits, the account numbers are redacted out but appear under the redaction? 

Are the locations of purchases "at stores and restaurants" in Virginia? 

All statements filed or handed to you have a Virginia address? Well, Citibank Senior VP Terri Bergman swears that those transferred account statements were kept in the ordinary course of (her company's) business, she's unaware of any errors in the information provided about your account, and this is true to the best of her knowledge. So, we must believe her that the person whose name appears on her company's account statements lived in Virginia. Otherwise, the best of her knowledge isn't to be relied upon.

Under your court rules, when is your deadline to file a response in opposition to their motion for summary judgement? 

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Yes, everything Cavalry has sent me via certified mail has been filed with the court, every document. In this case, discovery and responses. Attachments such as the affidavit  of the custodian of records and credit card statements are labeled as exhibit A, exhibit B, etc.  So, in amateur, pro se lamen terms, I refer to that as “filed with the court”.

The copies the attorney handed me were not filed with the court, nor were they included within the motion for summary judgment.

Yes, In regards to the **** **** **** xxxx I mean except for the last four digits. The copies the Cavalry attorney handed me show only the last four digits. The copies of statements the court has on file, don’t show any numbers, not even the last 4.  They are blanked out. 

There are no purchases on the credit card statements filed with the court. However, the statements that were handed to me do show purchases, but not location of purchases, only 1-800 #s of Walgreens for example. And certainly, not remotely resembling a $12k debt.

In regards to your question of the senior VP of Citibank and believing her.... Director of the DNI James Clapper swore before Congress that the NSA was not listening in on everyday, average Americans.  We now know different. “Unaware of any errors”.  “so we must believe her” etc.

 (Just some sarcastic humor for our forum)

The judge has stated that Cavalry’s motion for summary judgement will be dealt with during the next pre-trial in June 8th. I plan to have my opposition motion in the Court’s and Cavalry’s hands in the next couple of days. 

 

 

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@MikeJones

Here's a ruling from the OH Supreme Court.

On a motion for summary judgment, the moving party carries an initial burden of setting forth specific facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996).   The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. Id.

What does their "evidence" show?  It shows an address at which you've never resided.   Were you residing at your current address during the dates listed on the credit card statements?

 

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10 hours ago, MikeJones said:

Yes, everything Cavalry has sent me via certified mail has been filed with the court, every document. In this case, discovery and responses. Attachments such as the affidavit  of the custodian of records and credit card statements are labeled as exhibit A, exhibit B, etc.  So, in amateur, pro se lamen terms, I refer to that as “filed with the court”.

If I understand you correctly,

1.)  A Cavalry custodian of records prepared the affidavit that the Citibank account statements are attached to and referred to as Exhibit B submitted with the MSJ. 

2.) You have no affidavit from a Citibank custodian of records that any Citibank account statements are referred to and attached to as sworn (true) copies. 

3.) Senior VP Terri Bergman's affidavit does not refer to any attached true copies of account statements, only a transfer of certain electronic records of individual but unnamed accounts.

4.) The MSJ Exhibit B account statements show a Virginia address and show no card use or purchases.

5.)  Only the account statements handed to you by the attorney in court show purchases. Those statements were not part of the evidence submitted as an exhibit in support of the MSJ.  The were filed as discovery responses in the court's case file.

6.) The Citibank account number on some statements has been physically redacted so that no numbers are visible. Other statements redact all but the last 4 digits. If unredacted, the full account number would show. You have no idea if the totally redacted account number matches the account number that shows only the last 4 digits. 

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11 hours ago, MikeJones said:

The judge has stated that Cavalry’s motion for summary judgement will be dealt with during the next pre-trial in June 8th. I plan to have my opposition motion in the Court’s and Cavalry’s hands in the next couple of days. 

 

If I were in your shoes, I would not be in such haste to put an important document (stakes are $12,000) in the hands of the judge until I understood exactly what my burden to prove was and how to accomplish it, all according to the Ohio summary judgment standards and court rules. You did not answer when your deadline to submit your MSJ opposition response was.

Can you explain what "opposition motion" you plan to submit? (A motion is a request to the judge to take some sort of action.) Did you mean your response in opposition to their motion? 

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