MikeJones

Cavalry I SPV asked by judge for signed contract

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1 hour ago, MikeJones said:

@fisthardcheese  Do you concur that I should sit and wait to see what Judge has to say June 8 when Cavalry can’t come up with contract?

...........

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

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.

Lots of questions will be answered at the next court date and you should have a clear picture on how to proceed, IMO.

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13 minutes ago, Goody_Ouchless said:

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.

 

 

It appears that both the OP and the judge have already pointed out at least SOME of the lack of proof in the Plaintiff's case here and the law firm has done nothing but the usual attempt to badger a defendant to pay up out of fear.  It tells me that this law firm operates similar to the ones here in GA that only care about problems with their case if you show up.  It is very likely that if OP shows up to the next hearing prepared, this law firm may just dismiss the case right then.  But they will still wait to see if OP shows up, because they are still just banking on that flat tire or something to allow them to sneak in a default judgement.

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11 minutes ago, fisthardcheese said:

tells me that this law firm operates similar to the ones here in GA

True - we did just see a case in GA where guy was totally sweet until defendant mentioned MTC.

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Impossible. If a generic contract shows up, thats a whole different ballgame. Clearly I'd then supeona this mystical cavalry custodian of records in person.

Also impossible a citi credit card account never gets reported to a single credit bureau.

This reminds of when Cavalrys attorney kept pushing/scaring into a settlement... he said if its not your account why didnt you file a police report and report fraud to the bureaus.  well duh... clearly not me and not attached to my soc sec #.  

Im gonna be bluntly honest. The Cavalry attorney didnt care for anything I said or pointed out, thus here we are a 2nd pre trial conference.    While I was waiting for my 1st pre-trial he was badgering a lady who ultimatley succombed to a small $ settlement because she said she could not miss any more work over this stuff in court. (i over heard the whole thing)

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7 minutes ago, MikeJones said:

Impossible. If a generic contract shows up, thats a whole different ballgame. Clearly I'd then supeona this mystical cavalry custodian of records in person.

Also impossible a citi credit card account never gets reported to a single credit bureau.

This reminds of when Cavalrys attorney kept pushing/scaring into a settlement... he said if its not your account why didnt you file a police report and report fraud to the bureaus.  well duh... clearly not me and not attached to my soc sec #.  

Im gonna be bluntly honest. The Cavalry attorney didnt care for anything I said or pointed out, thus here we are a 2nd pre trial conference.    While I was waiting for my 1st pre-trial he was badgering a lady who ultimatley succombed to a small $ settlement because she said she could not miss any more work over this stuff in court. (i over heard the whole thing)

A generic cardmember agreement is not going to be signed as required by the judge.  Why would you bother with a subpoena? 

I don't know if a Citi credit card account can be reported to only one CRA, but I know for a fact it can be reported to only 2 and not all 3 CRAs.

If I had proof that shows I didn't live at the address on the statements and never even lived in that state, I'd go ahead and provide that proof and get it over with..

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4 minutes ago, BV80 said:

A generic cardmember agreement is not going to be signed as required by the judge.  Why would you bother with a subpoena? 

I don't know if a Citi credit card account can be reported to only one CRA, but I know for a fact it can be reported to only 2 and not all 3 CRAs.

If I had proof that shows I didn't live at the address on the statements and never even lived in that state, I'd go ahead and provide that proof and get it over with..

This is a good idea.  If the judge allows Plaintiff more time - either to file their MSJ or some other continuance to get evidence - basically if anything aside from a dismissal happens, I would ask to enter evidence that I never lived at the address as shown on Plaintiff's submitted evidence, then once handed to the judge, I would ask for a directed verdict.

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@MikeJones Did you sign anything like this below at the first pretrial case management conference? This Ohio Appeals Ct. ruling sheds some interesting light on 28 days for MSJ response not always controlling of timing, and the consequences of failure to timely oppose a motion:

Sanderfer v. Cuyahoga Metro. Hous. Auth., 2017-Ohio-1552.

{¶3} During the pretrial process, the trial court held a case management conference and issued a trial order on January 11, 2016. Counsel for both parties signed the trial order and the order was entered on the docket. Paragraph three of the trial order stated:

Unless otherwise ordered, motions for summary judgment, if any, may only be filed with leave of Court in accordance with Civ.R. 56(B) and not later than 10 days after the discovery deadline * * *. Said motions are to be filed instanter with a motion for leave. Responses to motions for summary judgment are due within 10 days after the filing of the Motion for Leave and Motion for Summary Judgment whether or not the Court has issued a ruling on the Motion for Leave.

{¶4} On April 18, 2016, CMHA moved for leave to file a motion for summary judgment and attached to it a motion for summary judgment with a memorandum in support of the motion. Sanderfer did not oppose the motion.

{¶5} On June 8, 2016, the court issued a judgment entry stating that Sanderfer’s time to oppose CMHA’s motion for summary judgment had elapsed and granting summaryjudgment in favor of CMHA.

{¶6} Sanderfer appealed and raises the following assignments of error for our review:

I. The trial court erred by instituting a rule for summary judgment that requires responding to a summary judgment motion within 10 days which is in conflict with the Ohio civil rules prior to the July 15, 2015 amendment of procedure rule 56 which requires the court [to] allow at least 14 days to respond.

II. The trial court erred by granting the defendant’s motion for summary judgment without a leave of court in violation of civil rule 56.

III. The trial court erred by issuing a default summary judgment.

# # #

But Civ.R.56(C), by its express terms, actually gives a responding party 28 days in which to respond to a motion for summary judgment, “unless otherwise provided for by local rule or by order of the court.” The order of the court in this case, which counsel for both parties signed, was that responsive motions were due ten days after the filing of a motion for summary judgment.

{¶14} The trial order clearly stated that responsive motions were due within ten days after the filing of a summary judgment motion “whether or not the court has issued a ruling on the motion to leave.”

“[A] court may, in its sound discretion, consider a motion for summary judgment that has been filed, without express leave of the court, after the action has been set for trial. Furthermore, where the acceptance of a motion occurs by the grace of the court, the decision to accept is by itself leave of court.” Meyer v. Wabash Alloys, L.L.C., 8th Dist. Cuyahoga No. 80884, 2003-Ohio-4400, ¶ 16, quoting Lachman v. Wietmarschen, 1st Dist. Hamilton No. C-020208, 2002-Ohio-6656.

{¶15} The record does not reflect that the court expressed to the parties that it would rule on a motion to leave before considering an accompanying motion for summary judgment. Thus, we consider what the record does reflect, which is that the January 11, 2016 trial court order required a party opposing a summary judgment motion to file its responsive motion within ten days, regardless of whether the court had ruled on the motion to leave.

{¶16} The second assignment of error is overruled.

{¶17} In the third assignment of error, Sanderfer argues that the trial court granted CMHA a “default” summary judgment without considering the evidence or conducting any reasoning or analysis.

{¶18} In granting summary judgment, the trial court stated:

In accordance with Paragraph 3 of this Court’s Trial Order, issued on January 11, 2016 and signed by both parties at the case management conference, all responses to motions for summary judgment were due within 10 days of filing whether or not the court has issued a ruling on the motion for leave. As more than 30 days have passed since Defendant’s Motion for Summary Judgment was filed, Plaintiff’s response time for said Motion has lapsed. Therefore, Defendant’s Motion for Summary Judgment, filed 4/18/2016, remains unopposed. In construing the evidence most strongly in favor of the Plaintiff, the court finds that as to Plaintiff Sanderfer’s claims against Defendant, there is no genuine issue as to any material fact, reasonable minds could only find in favor of said Defendant, and said Defendant is entitled to judgment as a matter of law. Therefore, Defendant’s Motion for Summary Judgment is granted and Plaintiff’s claims against Defendant are dismissed with prejudice.

 

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I did not sign anything.

Per the clerk of courts, the motion for leave to file MSJ will be dealt with june 8.  

Thank you for the case law reference. 

Regardless, I received the MSJ May 15th.

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12 minutes ago, MikeJones said:

Per the clerk of courts, the motion for leave to file MSJ will be dealt with june 8.  

@MikeJones If you think that, at some point TBD, you're going to have to file a response in opposition to their MSJ, IMO there's no downside to writing it up now, refining it  and hope you don't have to use it. I'll repeat myself and others and encourage you to consult with a NACA attorney. You don't know if this is a one-off case of forum shopping on a mistaken identity or a case of stolen identity with more to come.

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I think it would be worth time to see if the MSJ is filed and has a time limit on it.  I'm not sure if you have online access to the court record like we do in MO but I'm sure a court clerk will be able to confirm it.

If you received their MSJ and have 14 days to respond it might be worth filing a response just in case.  This is crucial if they state disputed facts.  

I helped a friend file a MSJ on a case she settled, but they still want a judgment on her.  Our rules are a firm 30 days and after that any dispute in the filing can't be challenged.  As noted above you might talk to a lawyer who can give you some advice on your court situation.  It sounds in limbo over the contract, but then being confused is not a good place to be.

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Small update.  Per the Clerk, Cavalry paid the fees yesterday:

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. JUDGE PATRICK JOURNAL VOL. 18 PAGE 0521 PA/D NOT.
05/31/18 LEAVE TO PLEAD-CV: $20.00
05/31/18 MOTION FEE: $15.00

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On 5/30/2018 at 3:21 AM, fisthardcheese said:

A true case of "wrong person" is so rare that it really never comes back to bite them anyway, so they could care less.

So rare in fact, I will bet $100 that this is not one of those cases.

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Just now, MikeJones said:

@Harry Seaward in your Arizona case.  Was the account in question allegedly yours?

Of course it was. I haven't yet seen a debt here that isn't legit that the consumer can't clear up with a police report and/or one phone call to opposing counsel. Proving mistaken ID and fraud is as easy as it gets. 

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25 minutes ago, Harry Seaward said:

Proving mistaken ID and fraud is as easy as it gets. 

Hence, Transunion's investigation and conclusion. 

Like you said in your JDB Arizona thread..  it all depends on what judge you get and the mood that day....  whether it be municipal or appellate.

 

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32 minutes ago, MikeJones said:

If it was yours, then what were you arguing?  Simply SOL and lack of standing?

Those and deficiency in evidence.

8 minutes ago, MikeJones said:

it all depends on what judge you get and the mood that day

Yes except in cases of mistaken ID or fraud. No lawyer is going to pursue a case with a police report as evidence against them, and no judge is going to find JDB testimony more compelling than a formal law enforcement investigation. 

8 minutes ago, MikeJones said:

Hence, Transunion's investigation and conclusion. 

Transunion isn't a court of law, and neither are their findings "proof" of anything legal. 

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7 hours ago, MikeJones said:

Small update.  Per the Clerk, Cavalry paid the fees yesterday:

@MikeJones So it's on. It's up to you to know your court's rules as to when your response clock started. Your judge asked for something they can't provide. That doesn't mean he won't grant leave to hear their MSJ. As BV80 has said many times, use of the card forms the contract. 

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8 minutes ago, Brotherskeeper said:

Your judge asked for something they can't provide.

I believe he expanded the scope to include a virtual application. I had a case where they were able to provide a screen shot of my online application - kind of hard to deny time, place, email address, etc. (Fortunately lawyer at Blatt was able to lose that case through ineptitude, even though he had the goods.)

This judge's mood could change if OP was playing games with former residence - parsing meaning of "home," or whatever. As Harry implied - they aren't going this far unless they know they have the right person.

 

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5 minutes ago, MikeJones said:

Cavalry does not have my social security number nor birthdate....

If you're lucky enough to survive summary judgment, you'll be asked at trial under oath if you ever lived at the addresses shown in the statements that also show your name. It's a simple yes or no and there is no 'pleading the Fifth'. If you refuse to answer, judgment for Cavalry. 

Or you have a judge that will find any reason to rule against Calvary. There's no "maybe" in these cases anymore. 

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Harry, in your failed Arizona JDB bid, did you have any arguements in regards to chain of custody? Was your bill of sale as generic as mine? No name? No account #?

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 The bills of sale never state the name or account number therein. It's always a supplemental "schedule a" or something like that which is a single line from a database that lists the accounts that were sold in the transaction.

I know this seems pretty easy when you have a judge that appears to be as consumer-friendly as yours is. I hope you win, but if you do, I also hope you realize how lucky you will be,  and that you in a different county would likely have a very different end result.

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3 hours ago, Harry Seaward said:

 The bills of sale never state the name or account number therein. It's always a supplemental "schedule a" or something like that which is a single line from a database that lists the accounts that were sold in the transaction.

I know this seems pretty easy when you have a judge that appears to be as consumer-friendly as yours is. I hope you win, but if you do, I also hope you realize how lucky you will be,  and that you in a different county would likely have a very different end result.

Agreed. And thank you for your honest candor. I hope I am indeed one of the lucky ones.

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11 hours ago, Harry Seaward said:

 The bills of sale never state the name or account number therein. It's always a supplemental "schedule a" or something like that which is a single line from a database that lists the accounts that were sold in the transaction.

I know this seems pretty easy when you have a judge that appears to be as consumer-friendly as yours is. I hope you win, but if you do, I also hope you realize how lucky you will be,  and that you in a different county would likely have a very different end result.

The JDB never provides this information during discovery based upon electronic "Business Records" without redacting the information. One could challenge the document for it's trustworthiness due to the document being altered or a document made for the sole purpose of litigation, though it may not work. Without that information, the JDB cannot establish standing.

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