MikeJones

Cavalry I SPV asked by judge for signed contract

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2 hours ago, bmc100 said:

Without that information, the JDB cannot establish standing.

Yes, the certainly can. They have a witness explain what the "redacted" record is a part of, and why it's redacted.  Would you include your own SSN in a publicly accessible court record? Does that make it unreliable? Of course not because you are able to testify what the record is and why it's been redacted.

This is the electronic age, man. Hopefully it never happens to you that your innocence of a crime hangs in the balance of the admissibility of a credit/debit card transaction, but isn't it comforting to know that you can introduce your bank records showing the date and time, and witness to explain it to the jury,  without having to track down every employee of the store, bank, 3rd party processor, cash register manufacturer, etc,  involved in processing the transaction? The same principal applies, but for the other side when you don't want to repay a debt, except to a much lower standard of proof, since you're not being accused of a crime. 

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Gents, looking for a critique of my affidavit... if things go south on Friday I will ask the Judge permission to file on the spot.

DEFENANT’S AFFIDAVIT OF RESIDENCY

 

 

 

Now comes the Defendant, XXXXX, certifies and says the following:

 

1.         I am a resident of the State of Ohio, XXXX County, and I am a competent person over  18 years of age. This affidavit is voluntarily made on my personal knowledge and, if  sworn as a witness, I can testify competently to the facts in this affidavit.

 

2.         I currently reside at the permanent address of XXXX,  since February 5, 2018.

 

3.         I have resided at the permanent address of XXXXX since April 5, 1986.

 

4.         I have resided at the permanent address XXXXXXX during the time frame of the alleged debt of the years 2008 thru 2012.

 

5.         I have never resided at the address alleged of XXXXXX, Virginia .

 

6.         I have never resided, nor attempted to establish residency in the Commonwealth of Virginia.  

 

7.         Attached are State of Ohio driver’s licenses from 2007 thru present day.

I certify under penalty of perjury that the foregoing statements are true and correct.

 

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Attended the second pre-trial, with a yet another random Cavalry attorney, well, here we have it.  While its fresh in my brain..

1.  Judge opened with the motion for leave to file MSJ.

2.  He also simultaneously saw I filed (and Cavalry has a copy) of my affidavit of residency proving I've been in Ohio.  (I'm thinking certified copies of Ohio driver's licenses was a home run, as he and the attorney spent some silent time reviewing.)

3. Judge denies motion for leave for MSJ as "clearly there is an issue of material fact" (many of you had suggested just that).

4. Cavalry attorney sat silent.

5. Judge asks Cavalry have you had a settlement offer Sir, cavalry says "not yet", turns to me and says what say you....  I said, "clearly this is not my account as proven in the affidavit,  however, I cannot keep missing work and losing time and would offer $500 not to come back here.  If we are inclined to go to trial then clearly there are FCRA issues at hand, mixed assignment, accounts, etc"  (I figure if I was to go forth with trial or FCRA issues I'd need to pay a consumer attorney anyway.  So taking into consideration the worst case, I figured $500 is better than a Judgement of $12,000 against me.)

6. Judge tells Cavalry attorney "Sir, I suggest you take this offer to your client as soon as you can"

7. Judge sets 3rd pre-trial for August 10th.  (I was actually expecting Judge to set trial date). 

Thoughts?? It was fairly quick and painless, and again I spoke as little as possible until called upon. This new Cavalry attorney bumbled the same talking points. 

I was hoping for the case not to go forth, or perhaps a clear dismissal, but I suppose having Cavalry's MSJ denied is a good thing.

 

 

 

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The wheels of justice turn very slowly. The MSJ has been denied to now they are going to have to fight in trial. I thing the 3rd pre-trial hearing is to give Calvary time to review the new evidence you submitted and to decide on your offer. If the attorney office they hired has any functioning brain cells, they will dismiss the case before the next hearing in August.

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22 minutes ago, Goody_Ouchless said:

Crazy. They know it's you, or they would have folded long ago. If they can place you in VA, I suspect your nice judge will quickly turn into Fred Gwynne.

 

Not sweating it, VA is an impossibility. And this is the first time the wrong address was officially brought up in court. Not crazy at all.

Clearly a disconnect with Cavalry and its local attorneys. As this was their second local attorney brought in the morning of court.  I suspect they thought I would not show and boom summary judgment.

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Here is the Judges journal entry per the clerk;

 
This case was called for a pretrial conference. The defendant and counsel for the plaintiff were present in court for the pretrial conference. Based upon issues raised during the pretrial conference, including any liability by the defendant and the identity of the account holder, an additional pretrial conference is scheduled for Friday, August 10, 2018 at 9:30 a.m. to permit counsel for plaintiff to review identification information provided by the defendant.
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3 hours ago, MikeJones said:

You sound like one of those pundits on the night of November 8, 2016... Soo sure of themselves, “sounds like, looks like” yet miserably failed in understanding the reality on the ground.

Some good faith humor for this thread :-)

the judge wont dismiss the case without you filing an MSJ for dismissal. At the same time, the judge cannot tell you how to do things, even though you are steps ahead most posters on here. You need to file an MSJ along with the evidence you already presented.

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On 6/8/2018 at 5:55 PM, Goody_Ouchless said:

Seems if judge wasn't convinced he would have granted leave for them to file MSJ and ruled in your favor.

The judge can't rule in his favor until the trial or until the defendant files his own counter MSJ as was previously suggested.  I also previously suggested that OP ask for a directed verdict if this exact situation arises. It would have been the perfect time after MSJ was denied and the judge asked OP what they have. Either one of those may have ended the case right then.

Without the counter MSJ or without asking for a directed verdict, then the judge has no option but to either set a new pretrial date or a trial date.  I believe the only reason another pre-trial date was set is due to the OP's settlement offer, otherwise the judge likely would have just set a final trial date.

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1 hour ago, fisthardcheese said:

The judge can't rule in his favor until the trial or until the defendant files his own counter MSJ as was previously suggested.

My bad. I thought judge could rule either way on an MSJ - not just judgement for moveant, or denial of motion.

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1 hour ago, Goody_Ouchless said:

My bad. I thought judge could rule either way on an MSJ - not just judgement for moveant, or denial of motion

Goody, OP never filed a response in opposition to the MSJ or his own counter MSJ requesting that relief as we suggested he do. In Ohio, a motion for leave is decided before the actual MSJ is heard. The JDB's motion for leave to file the MSJ was denied because the OP filed an affidavit with copies of his Ohio driver's licenses demonstrating a material fact dispute.

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5 hours ago, bmc100 said:

the judge wont dismiss the case without you filing an MSJ for dismissal. At the same time, the judge cannot tell you how to do things, even though you are steps ahead most posters on here. You need to file an MSJ along with the evidence you already presented.

You beat me to it.  In Texas it is known as a "No-evidence MSJ."   Check your state's and court's rules but here you need to include an affidavit and ask the clerk if it is on you to schedule a hearing.   Find as much case law from your state as possible to explain why the motion is proper in these circumstances and attach a proposed order for the judge to sign granting your motion.  

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40 minutes ago, Brotherskeeper said:

OP filed an affidavit with copies of his Ohio driver's licenses demonstrating a material fact dispute.

Really surprised that Cavalry can't get their act together on this one. Yes, OP has stated something to the effect that the VA addresses fit the location and pattern of temporary military installations, but all they have to do is place OP in VA, at some point during the account's life. Someone could have their bills sent to various P.O. Boxes in Janesville, WI, while residing in Rockford, IL and make the same argument.

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2 hours ago, Goody_Ouchless said:

Really surprised that Cavalry can't get their act together on this one. Yes, OP has stated something to the effect that the VA addresses fit the location and pattern of temporary military installations, but all they have to do is place OP in VA, at some point during the account's life. Someone could have their bills sent to various P.O. Boxes in Janesville, WI, while residing in Rockford, IL and make the same argument.

But in this case, the OP provided notarized copies of an official government identity document which shows that his official residence was in Ohio (which is quite a bit different than Janesville WI and Rockford IL). It is now up to Calvary to find out of the OP either had a job, was in the military, was in school, or for some other reason, would have been in Virginia during the years that the account was open. It is plausible that it could have happened. but now it is up to Calvary to prove that such an event occurred.

However, Calvary's argument has been that the OP's name is so unique that it is not possible that there are 2 different people with the same name and yet, it could be possible that among 300 million plus US residents, there could be 2 people with the same unique name. Why does Calvary not simply get the original application for the account which shows the Social Security Number used to open the account and then force the OP to produce his Social Security Card which will either confirm or deny that the account belongs to the OP? In other words, yes this could be solved in 5 minutes, one way or the other, if Calvary had the evidence needed to solve the issue.

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14 hours ago, Goody_Ouchless said:

Really surprised that Cavalry can't get their act together on this one. Yes, OP has stated something to the effect that the VA addresses fit the location and pattern of temporary military installations, but all they have to do is place OP in VA, at some point during the account's life. Someone could have their bills sent to various P.O. Boxes in Janesville, WI, while residing in Rockford, IL and make the same argument.

I am not as surprised as you are.  Cavalry is not in the detective business.  They are literally in the default judgement business.  I can almost guarantee you that after the last hearing, the file was brought back to the office and filed under "continuance" with the new court date.  Like OP said, it wasn't even the same rent-a-lawyer, so whose ever turn it was that day grabbed the stack of 100 case files and went to court without reading a single one of them. You notice that their automated process went into motion here, regardless that the judge explicitly told them to produce a signed contract at the next hearing, instead they filed their normal MSJ and did not provide a contract as requested. They just went through the motions like it was any other case. They are not going to bother tracking down any information they don't already have in the case file from the OC, they are just going to continue their automated process regardless of what anyone, even the judge, says. And it almost worked here. If OP had not gotten sworn affidavits regarding his residency to prove a genuine issue, then the MSJ may very well have been allowed and granted without them producing the evidence the judge himself requested.

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Ok gents, my 3rd pre-trial is set for August 10th.  I wanted to however take @Harry Seaward advice, and ask the court for Directed Verdict at the pre-trial to end this matter.  Please critique my draft and forgive my amateur legal thought process.

MEMORANDUM OF LAW

            This motion is made pursuant to Rule 50 for the Ohio rules of Civil Procedure.  The purpose of Directed Verdict, as provided for by the Ohio Rules of Civil Procedure, is to expedite disposition cases and avoid unnecessary trial where no genuine issues of material fact are raised.  Therefore, Directed Verdict may be granted in any case in which the record shows there is no general issue of material fact with respect to the particular claim.  A motion for a Directed Verdict shall state the specific grounds thereof.

            On or about February 28, 2018, Plaintiff Cavalry SPV I, LLC filed a complaint against Defendant X, asking for judgement in the amount of $12,862.81.  Defendant filed and served an answer to Plaintiff’s Complaint denying certain facts.  Defendant by affidavit set forth specific facts showing that there is a genuine issue to the ownership and authenticity of the alleged account. 

            On May 2, 2018, during the first pre-trial hearing, the Plaintiff was asked by the Defendant for a signed contract, signed credit application whether it be physical or electronic.  Plaintiff denied having such documentary evidence.

            On May 12, 2018, the Defendant formally submitted in writing and served the Plaintiff a request for interrogatories and answers.  On June 2, 2018 Plaintiff responded in the negative and stated “Plaintiff states that it is not in possession of any document which may responsive to this request.”

            On June 10, 2018, during the second pre-trial hearing, Plaintiff’s attorney was present during the hearing and again failed to produce any signed contract, agreement or application of the alleged account.

            WHEREFOR, the Defendant moves for a Directed Verdict.  It is has become clear to the Defendant that the Plaintiff does not and cannot produce a signed contract proving ownership and authenticity of the alleged account.  Plaintiff has had over 90 days to produce such evidence. When a motion for a Directed Verdict has been properly made, and the court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that the conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

CONCLUSION

            The Defendant asks the Court to grant a Directed Verdict in the Defendants favor as a matter of law.  Defendant also requests that the he be granted any other proper relief to which he may appear entitled.

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There's no legal requirement for a party to produce a signed contract. I know the court apparently asked for that, so that's how I would frame the motion. 

"On xxxx, this court ordered plaintiff to produce xxxx. After being granted 3 separate opportunities to produce xxx, Plaintiff failed to do so. The court should therefore find plaintiff cannot produce the records required by this court, and defendant asks the court to issue a directed verdict against plaintiff as a result."

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