Cavalry SPV versus Nickel is all I have...

[Nickel]

Hello, everyone.

I was served out of the blue in April from a company I have never heard of.
I am being sued by Cavalry SPV I LLC for more than 10,000.

I go back an forth between panic, and the strong urge to fight back.

After I was served, I filed a motion to dismiss and then the next day I filed an Answer and an Appearance.
I live in Illinois. 
I make $13,000 a year, have no assets except a car (with very negative equity), and I'm on SNAP and Medicaid.
(The upside is that court filing is waived for me...)

I ran across this website a few days ago, and read everything I could find but there is SO much information and now I have a
headache. I could use any thoughts you all could spare and a fresh bunch of eyes wouldn't hurt.

I saw these around everywhere, so I figure I'm supposed to answer these, right?

1. Who is the named plaintiff in the suit?

Cavalry SPV I LLC.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Blitt and Gaines

3. How much are you being sued for?

A little more then 10,842.12 plus costs

4. Who is the original creditor? (if not the Plaintiff)

Citibank

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

Man at the door handed the papers to me.

7. Was the service legal as required by your state?

I think so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None that I can recall.

9. What state and county do you live in?

Clinton County, Illnois

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

I lost my Job in April 2016, stopped paying all accounts in July 2016... except my car because I need a car to find a job.

11. What is the SOL on the debt?

10 years on written contracts in IL, 5 on revolving accounts like credit cards.

12. What is the status of your case? Suit served? Motions filed?

Suit Served. I have a "hearing on all motions on July 24th". I have filed a Motion to dismiss with prejudice, then a day
later I filed an answer and an appearance. I recieved the "plaintifs response to defendant's motion to dismiss" this morning
and I am working on a motion to strike the affidavit which I hope to file this week. I think, after that I will start working
on Discovery and then what??? 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Didn't know the collection agency, so No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't
bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork).

I responded within the required 30 days with the motion, the answer and the appearance. I dont know if their is a time limit for the motion to strike the affidavit.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they
attached as exhibits.

Affidavit from their employee saying she reviewed their records and knows how they do buisiness and the last statement from OC.

I am attaching all records if I can...

I'll take any thoughts or ideas you have! What would you do next???

Thank you!

[Nickel]

Also I am including the motion I filed...

And their affidavit "Exhibit A"

[Harry Seaward]

Citibank has a pretty decent arbitration clause in their agreement. Before going that route, though, I would contact Cavalry's lawyer and let them know of your financial hardship status ($13k/year and gov't assistance). Other JDBs have dismissed lawsuits under similar circumstances and Calvary may do the same for you.

If not, then I'd be planning to use arbitration to send them in their way. 

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[Nickel]

Thanks Seaward for your answer.

Quote: If not, then I'd be planning to use arbitration to send them in their way. 

It looks as if, according to (http://thechicagolitigationblog.com/blog/2016/5/31/rule-2-619a2-motion-to-dismiss-may-constitute-arbitration-waiver) this website, if you forget to mention arbitration specifically in your motion to dismiss and specifically in your answer then you unintentionally waive your right to arbitrate.

:(

 

I spoke to a person about this case and He says there's no way they'll let it go, since I answered and have a pulse they will try to grind me into the dirt and take me for everything I've got... which is just about nothing at this point. I am legally un-collectable.

I am preparing to email them about my hardship status, which I will wait until the end of the week for. 

I'm not feeling very positive at the moment. 

I have a car payment that my Mom is cosigner on, which is the only reason I haven't stopped fighting, yet. I know that if I stop paying that, she loses the car, her credit is screwed, and she can't afford to pay it. I put her on it to rehab her credit after her divorce. I had a safe, secure job. (Ha!)  I am aware that my debt dies with me, but that isn't an option I want either.

I am considering bankruptcy (Chapter 7)... I thought this would be so much easier to fight since they had so little. A statement and a thin affidavit, but I have been told by a few people, who know the law, that I should just give up and pay it. (I can't)

Very discouraged... Still reading and searching for a loophole or way out.

Their junior lawyer threw all kinds of legal citing at me basically undermining my "Show me the contract" statement, and basically said "it's an oral contract, pay up".

I sought legal assistance but the lawyer said he thought I was doing a great job, but he mostly fights in Federal court and probably couldn't help me better than I could help myself.

So Discouraged. : |

[Harry Seaward]

Trust me, they will let it go when they get the $5,000 bill from AAA and the agreement says they can never get that back from you. Much of the time they drop it right after the MTC has been granted. 

As far as waiver, it's not usually as easy as failing to assert arbitration in an answer. You usually have to participate in significant litigation,  e.g. discovery, MSJ, etc. 

Do NOT file a motion to dismiss. It can cause issues later on. Just go with a straight up MTC arbitration. 

[Nickel]

Unfortunately I already have. I read that I had to file that first, so I filed a motion to dismiss with predjudice and then I filed my answer and appearance. 

[Harry Seaward]

Ok just roll with it then. Was it worded as a motion to compel? On what grounds did you move to dismiss? 

[Nickel]

ALRIGHTY.... and here's the update.

So after I bungled it up by Motioning to Dismiss without Prejudice before everything, I went and found a lawyer. I figured I was in over my head when I got their response to my motion in the mail and they were hammering the "Accounts Stated" argument. I also have zero idea how to properly cite the cases I wanted to cite. (After I turned my case over to a lawyer and went hands-off, I found a guide by Loyola university on how to cite case law, and a guide for Pro Se case citing.) 

Since I'm broker than a joker, I went with a lawyer from legal aid. I gotta admit, I wasn't optimistic at this point. I have always believed that legal aid is where incompetent lawyers go to practice when they cant practice anywhere else. I went in there with zero positivity and after laying everything out, I had just a few questions. 1. If I lose, can I discharge the judgement in bankruptcy (Yes, in many cases.) 2. What is the time limit, if any, to strike the affidavit (I don't remember the answer to this, but it wasn't an issue). 3. By Motioning to Dismiss without Prejudice before I filed the Answer and the Appearance (Which I perceived was the rules of my court), did I inadvertently waive my right to arbitrate? (Depends, but yes, it does appear that I did.)

So I was served in April, hearing in May. At the Hearing, the lawyer from the other side was annoyed and said they needed more time to answer my Motion, because I answered each item and had nearly twenty affirmative defenses. She was not happy with me! She was polite but her hands were shaking the whole time and she seemed very annoyed. Judge continued to 60 days later.

A week later I got a letter in the mail answering my first affirmative defense and ignoring everything else. I was SO disappointed! This is the point where I went to legal aid. Legal aid is kinda on the edge of the shady part of town. I was super intimidated but determined to get help. I have hired lawyers before, when I wasn't broke, and I'm accustomed to the experience (when it comes to family law in particular.) Legal Aid was no different, maybe a little friendlier.

The Lawyer took my case and we went to the second hearing just a few days later. Judge continued to Autumn. I was not at that hearing. My lawyer withdrew my motion and requested a trial date. Cavalry retained a local yokel lawyer whose specialty is collections. I spoke to a doctor about drugs for anxiety. Ha!

This whole time Cavalry kept throwing it to different lawyers.

The day of the trial, Cavalry's local yokel filed a Motion to Dismiss without Prejudice in our online system. (Idiots! We could have avoided all this from the get go...) 

My lawyer objected (improper filing - My Lawyer didn't get a copy in time) and moved to go to trial, now. The Judge asked if there were any witnesses (or prospects of a witness, ever) and Cavalry's lawyer said he had no idea. 

My lawyer moved to dismiss with prejudice. Granted.

***In less than 10 minutes, this thing that ate up my year was over... forever. ***

The crazy thing is that while this was very personal to me, it was just business to Cavalry and that if you are very careful, and don't mangle it (follow the advice in this forum, carefully), you can absolutely do all this yourself. (I'm glad I got a lawyer though, mine were awesome.)