MikeJones

Cavalry I SPV asked by judge for signed contract

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2 hours ago, MikeJones said:

And what happens if Cavalry shows up and does not produce a contract as evidence???

That will be up to the judge.

1 hour ago, MikeJones said:

fisthardcheese.... are you saying prep, but do not file a response or anything until we see what happens June 8th at the pre-trial?

It's your case, so you must decide.  I'm just saying if it were me, I see no reason to rush into a response for something the court clearly has not accepted as filed yet.

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@MikeJones Did Cavalry's Complaint state a reason that the contract was not attached? 

RULE 10. Form of Pleadings

(D) Attachments to pleadings.
(1) Account or written instrument. When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.

RULE 56. Summary Judgment

(E) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

 

This 2015 Ohio Supreme Court case discusses Civ.R. 10(D)(1) and standing in a mortgage foreclosure case. I don't know if this applies to your case or not, but it covers standing and party in interest.

Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484.]

 

IV. Conclusion

{¶ 17} Accordingly, we hold that although the plaintiff in a foreclosure action must have standing at the time suit is commenced, proof of standing may be submitted subsequent to the filing of the complaint.

{¶ 19} After filing the complaint, Wells Fargo submitted proof of standing regarding the fact that it was the real party in interest through an affidavit and other documents attached to its motion for summary judgment. Its affiant, a Default Litigation Specialist for Wells Fargo, averred that in 2000, Norwest Mortgage, Inc., changed its name to Wells Fargo Home Mortgage, Inc., and in 2004, Wells Fargo Home Mortgage, Inc., merged into Wells Fargo, the plaintiff here. Documents attached to the motion for summary judgment confirmed the name change and merger and the timing of each event. These materials verified that Wells Fargo had standing to file the foreclosure action against the Horns at the time that it filed the complaint in 2010.

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On 5/23/2018 at 12:09 PM, fisthardcheese said:

That will be up to the judge.

It's your case, so you must decide.  I'm just saying if it were me, I see no reason to rush into a response for something the court clearly has not accepted as filed yet.

Thoughts?

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In Missouri all motions are recorded on the public website of the court.  I don't know if OH has that.  If you are concerned about the deadline of the MSJ you should be able to go to the court clerks office and see the status of that motion.  

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15 minutes ago, Sogeln said:

In Missouri all motions are recorded on the public website of the court.  I don't know if OH has that.  If you are concerned about the deadline of the MSJ you should be able to go to the court clerks office and see the status of that motion.  

its 28 days. 

I'm asking for thoughts and opinions in regards to Cavalrys responses to my requests above.

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My first case was against Cavalry.  Those responses look the same as what I got back.  My case was 2013.  I asked for the contract between Cav and the OC, plus the bill of sale, and they objected to both due to privilege.  Other documents were deemed burdensome.  Gee whiz you're suing me for $20K how much work is that worth?  It's their way of saying they don't have it, or can't get it.

Both my cases had objections to requests due to overly broad and burdensome.  I interpreted that as bluffing and buying time.  Both eventually dismissed their cases because I challenged them the whole way to prove they had standing and a valid claim.  I think they hoped I would miss a court date or mess up so they could get a default or summary judgement.  

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16 minutes ago, Sogeln said:

My first case was against Cavalry.  Those responses look the same as what I got back.  My case was 2013.  I asked for the contract between Cav and the OC, plus the bill of sale, and they objected to both due to privilege.  Other documents were deemed burdensome.  Gee whiz you're suing me for $20K how much work is that worth?  It's their way of saying they don't have it, or can't get it.

Both my cases had objections to requests due to overly broad and burdensome.  I interpreted that as bluffing and buying time.  Both eventually dismissed their cases because I challenged them the whole way to prove they had standing and a valid claim.  I think they hoped I would miss a court date or mess up so they could get a default or summary judgement.  

Tell me more my friend... have you had a chance to read thru my thread?  I could really use an extra set of eyes.

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I have read through the thread.  It's a different set of circumstances.  My judge was way cool with me.  Everything was done through filings.  The hearings were just meeting to set up the next hearing date.  The day set for trial they dismissed the case.  They did ask me to sign a waiver, however, and it asked me to not discuss the case with anyone else (hahaha, you bet) and not sue them (OK).  That was Cavalry.  Different lawyers than you have.  

This was 5 years ago and it seems things have changed a bit.  Maybe the courts are being more lenient for collectors as far as proving standing.  

I'll say this that both lawyers I dealt with knew they couldn't win in court if I did everything right, which I did.  Well I made one error on each case, but not fatal.  They tried tricks and being intimidating.  I was nervous as hell, I had $34,000 total on the line.  I just played it cool and let them not win the case.  

On my second case the lawyer called a few times asking me to just settle for a fraction.  They record calls and he was hoping I'd admit to it.  I just keep saying he needs to prove the debt is mine and prove they have a legal right to make a claim.  They dismissed it too.  

It is a game.  I'm not sure this is good advice but it's ok to call them.  You can ask them if they are going to get that contract to the judge on time.  It's not bad to be a little cocky, IMO.  In my experience they're waiting for a pro se to screw up.  If they have a slam dunk case all the relevant docs would be out there already.  

I still think you can file a MSJ stating material facts that you never lived where they say you did, with an attached affidavit and other exhibits.  Those motions are to resolve disputes of fact.  Once they're on the record the Plaintiff has to respond with evidence that you're wrong.

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Thats my ultimate question. Wait to see what happens at the next pre-trial or strike while the iron is hot with a response MSJ.  My judge is dead set on this signed contract, and cavalry has responded that they are not in posession. I think I can squeeze by with the lack of standing arguement, as their bill of sale is generic and doesnt name me.

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7 minutes ago, MikeJones said:

I think I can squeeze by with the lack of standing arguement, as their bill of sale is generic and doesnt name me.

If you never lived in Virginia, never lived or stayed there temporarily during the time period of those statements, and there are no other statements or written communications from the OC showing you at an Ohio address, an affidavit filed with your MSJ opposition memorandum with some true (aka sworn) copies of competent evidence of residence attached, creates a genuine issue of material fact in dispute. 

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22 minutes ago, MikeJones said:

Discovery is still ongoing. I have not done a request for admissions.

@MikeJones In your request for production #2 they say "See Card Agreement." Did they provide a card agreement to see? 

They also state that discovery is ongoing. Many courts will, if argued for properly, consider a MSJ to be premature if discovery isn't completed. 

You might consider sending a defendant's second request for production of documents and admissions to ask them to admit or deny there is no OC monthly account statement from the account that is the subject of this lawsuit from 2008-2012 that is addressed to you at an Ohio address; if they deny that admission, then request they produce the document(s). In order to have them admit to a statement without an objection as to it being ambiguous, vague or overly broad, you have to be very specific and accurate in your description of the account statements and time period. Give them no wiggle room. Although, any cc statement or any communication from the OC with an Ohio address would be impossible for them to cough up. If they admit they do not have any account statement from the OC addressed to you at an Ohio address, you are relieved of the argument and the burden of proof of that fact. If you have any other admission you need to shore up your argument, include it in this second request. 

I hope you will consider a consult with a consumer attorney. This may be stolen or mistaken identity. At some point, Cavalry should realize this fact. If they persist past a certain point, they can't use a bona fide error defense against any FDCPA violations if they knew they had the wrong person. They may be forum shopping solely because of your name. 

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On 5/25/2018 at 5:16 PM, Sogeln said:

I have read through the thread.  It's a different set of circumstances.  My judge was way cool with me.  Everything was done through filings.  The hearings were just meeting to set up the next hearing date.  The day set for trial they dismissed the case.  They did ask me to sign a waiver, however, and it asked me to not discuss the case with anyone else (hahaha, you bet) and not sue them (OK).  That was Cavalry.  Different lawyers than you have.  

This was 5 years ago and it seems things have changed a bit.  Maybe the courts are being more lenient for collectors as far as proving standing.  

I'll say this that both lawyers I dealt with knew they couldn't win in court if I did everything right, which I did.  Well I made one error on each case, but not fatal.  They tried tricks and being intimidating.  I was nervous as hell, I had $34,000 total on the line.  I just played it cool and let them not win the case.  

On my second case the lawyer called a few times asking me to just settle for a fraction.  They record calls and he was hoping I'd admit to it.  I just keep saying he needs to prove the debt is mine and prove they have a legal right to make a claim.  They dismissed it too.  

It is a game.  I'm not sure this is good advice but it's ok to call them.  You can ask them if they are going to get that contract to the judge on time.  It's not bad to be a little cocky, IMO.  In my experience they're waiting for a pro se to screw up.  If they have a slam dunk case all the relevant docs would be out there already.  

I still think you can file a MSJ stating material facts that you never lived where they say you did, with an attached affidavit and other exhibits.  Those motions are to resolve disputes of fact.  Once they're on the record the Plaintiff has to respond with evidence that you're wrong.

You are absolutely correct. It is a game. A game of who makes the most errors. If one follows the rules, challenges everything properly....chances are they will dismiss. I had a $26k debt dismissed with prejudice against Chase Bank, an OC. Their attorneys made so many mistakes that they lost the case on their own and I had to show up once in court for mediation and the mediation panel tried to get my to admit it was my debt. All I said was, they are the Plaintiff, they need to prove their claims. I do not have to respond to anything. They said you are correct, Plaintiff, do you have any proof with you that he owes this debt? No, we have no documentation. Panel recommended award - $0. A couple months later - a call stating they would dismiss. I said yes, as long as it was with preejudice. A call back later that day - deal.

If a plaintiff does not attach an affidavit to a complaint, a Defendant can create their own affidavit deny the claims and cause of action. You force the Plaintiff to the defensive since then they have to prove with evidence their causes of action. If that does not work, challenging standing will usually work. In Michigan, the Plaintiff has to provide the entire contract of the sale/assignment. The JDB attorney tries to argue it is not needed, but it is. If you ask for the Sales Agreement that is listed in the Bill of Sale or redacted, they will object only to state later on that they do not have it.

 

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@bmc100 what I am debating is answering with a opposition response to their MSJ..  or just waiting till the June 8th pre-trial to hear what the judge has to say....  the Judge has already stated that he will address the leave to file/MSJ request on June 8th..... But is there anything I should submit beforehand.. also, the only affidavit filed by the plaintiff is one of their own employee/custodian of records.  the bill of sale is soo general and does not list my name nor account number. 

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Can I ask why you haven't just contacted Calvary's lawyer and explained that it's not you? The last thing they have time for is chasing a debt that's clearly not yours. If I was a judge, all of this "litigation" would make me wonder if there's more to the story...

 

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2 hours ago, bmc100 said:

Their attorneys made so many mistakes that they lost the case on their own

Stories like yours may have been somewhat common 10 years ago, but those days are long gone.  Attorneys know what they need to win down to specific counties.  The frequency of rookie mistakes are so low now that it may as well be never.

Even in OP's case, he could make all of the "correct" objections and still have a (different) judge allow the evidence in.  Reversals on evidence admission is another one of those "almost never" occurrences that it's a waste of time even talking about it unless the judge commits the near shocking equivalent of screaming racial epithets while admitting the JDBs evidence.

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@Goody_Ouchless I did one better. We were face to face and I stated just that. it’s not me, wrong person. Cavalry’s attorney kept pushing for a “settlement” because the debt is from 2008-2012 “perhaps I don’t recall” he said. I said no thanks, $0 kind Sir. He would not deviate the conversation from “settlement”.

In my municipality, judge is dead set on signed contracts physical or electronic. Again, the judge decided on this second pre-trial in order to give cavalry time to produce it. That is the sole reason for this 2nd pre-trial.

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You're definitely in the "wrong party of interest" category.  You are lucky your judge is putting pressure on the plaintiffs.  If I was in your shoes I'd wait till court and see what happens with the contract.  If things go against you in court for some reason you could motion for summary judgment on the basis of wrong party of interest, and perhaps get a continuance to submit an affidavit to that fact.  Or you might even have all this printed out with you to submit in court just in case.  

 

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9 hours ago, Goody_Ouchless said:

Can I ask why you haven't just contacted Calvary's lawyer and explained that it's not you? The last thing they have time for is chasing a debt that's clearly not yours. If I was a judge, all of this "litigation" would make me wonder if there's more to the story...

 

This tactic never works.  They not only hear it all the time, but many collection attorneys frankly don't care.  While the JDB company may not want to mess with something that is a "wrong person" issue, these law firms, once they have the file, go to the end no matter what. It's nothing for them because they have to go to court anyway.  A true case of "wrong person" is so rare that it really never comes back to bite them anyway, so they could care less.

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5 hours ago, fisthardcheese said:

This tactic never works.

I must have encountered the last of the decent debt collection lawyers - which is possible since all things change, as we have seen. The ones I dealt with would have taken one look at the evidence the OP claims to have (proof of residence in another state, address on statements doesn't even exist, etc.) and filed for immediate dismissal. 

Again, I am assuming it's the "truth" and not a "tactic." I must admit the wrong state, X-Files address, OP's essentially "judgement-proof" financial situation and a judge demanding wet ink on original application did make me check if this thread was started on April 1st.

 

 

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