Need Some Help

[midnightmadness]

I need some help from someone that can help maybe shed some insight into what avenues I can take. First, I found out that I am being sued by Calvary Portfolio (I have not received the summons yet). I found out because I received all kinds of letters from attorneys asking me to call them and then went to the court website to find..VOILA there I am. I don't have that kind of money right now and I'm a single parent and sole supporter of family.

Secondly, the account I believe it might be tied to is no longer on my credit as I tried to find it after I found out about this. However, I was going through some financial struggle and stopped paying on all my accounts at the same time therefore, I'm sure the date of default is at least October 2014. The original creditor in question was a Citibank card that I stopped paying on in August/September 2014. I opened up the card in California and defaulted on the card in California. I moved to Missouri a year ago and was under the belief that Missouri had a borrowing statute and let it be. Now I'm being sued a month or two after the statute of limitations would have expired in California. So I'm a little overwhelmed with the information right now

From what I can find, the SOL is 5 years in Missouri. So I'm not sure what to do here - should I file for bankruptcy (I really don't want to - but I have other accounts that are in default from that year too)? Should I fight them and try to use the borrowing statute and hopefully win? I think they are going to small claims because the balance is 2000 and still not fully familiar with Missouri law. I don't think I could use arbitration because Citibank has a horrible clause on small claims court from what I have been reading.

Any insight right now will help as I kind of feel lost and helpless right now. To boot the court date is coming up next month which doesn't leave much time and the fact that I haven't been served yet.

[Harry Seaward]

We're you sued in Small Claims Division? When did you open the account? 

Your only real shot here is going to be using arbitration, but Citi has a small claims exemption, meaning if you are sued in small claims court, you can't use arbitration. The small claims exemption hasn't always been in the Citi agreements, so if you opened the account several years ago, there still may be hope, but then you need to find an agreement from the time you opened the account to be sure. 

[midnightmadness]

Account I believe that they are suing on is from 2013. Defaulted in 2014.

[Harry Seaward]

Are you being sued in small claims division? 

[midnightmadness]

I believe so yes, when I looked up the court case it appears to be the magistrate court.

[Harry Seaward]

I believe Missouri has a court dedicated to small claims called "small claims division". If you weren't sued there, there may be hope. You need to find out for sure. 

[midnightmadness]

How do I find out? Does the case number tell this?

[Harry Seaward]

Call the court clerk and ask if it's not obvious from the paperwork you have. 

[midnightmadness]

I don't have the paperwork, still waiting for them to actually serve me lol It's been almost three weeks since they filed and still nuttin.

[Harry Seaward]

I would lay low. There's a remote possibility they won't serve you but most jurisdictions give them 2 to 4 months to serve a defendant after the lawsuit has been filed.

[midnightmadness]

I will update you if I get one.

[midnightmadness]

Okay so I got the summons. I am really doubting the information that was included in the paperwork. Additionally, it says I don't have to respond - I can if I want but they want me to appear in court first? Is that normal?

Here is what was included in it:

Affidavit of Claim

Affidavit I'm not in the military

Bill of Sale paperwork (but I'm doubting this. It doesn't even have my account information on it at all - it's just a generic paper saying that accounts were sold to Calvary and the paperwork with it looks like someone could have typed it up in excel)

Affidavit of Sale of account by Original Creditor (again none of my account information on it as well)

Then they included the card holder agreement.

The last page of it is a statement. The thing that gets me here, it says I made a payment in November of the year I defaulted and I know for a fact that I did not. In fact, if you look at the statement they included, it shows that the payment was returned and they charged me an NSF fee of $36.00.

And btw, the contract that they sent - says I can file arbitration even in small claims and if it is in relation to debt collection. I can choose either JAMS or AAA. lol However, I have to file the fees to do so.

Oh and one of the things that gets me in the summons - As a direct and proximate result of Defendants Breach (Citibank) has sustain damages in the amount of  (balance on the account). As an assignee of the account, Plaintiff has also been damaged in the same amount.  - Don't these guys pay pennies on the dollar for this debt?? lol

Okay I'm really wanting to go after these guys for falsifying documents. I just moved to Missouri a year ago but was in California for 14 years. They bought this debt supposedly when I was in California, but said the bill of sale was bought per Missouri law and signed back in 2016. There is no way - I was not in Missouri at the time, I was in California!!

 

[BV80]

16 minutes ago, midnightmadness said:

As an assignee of the account, Plaintiff has also been damaged in the same amount.  - Don't these guys pay pennies on the dollar for this debt?? lol

It doesn’t matter. Assignees that have purchased accounts have the same rights as original creditors.  They get to recoup the full amount. 

 

[Harry Seaward]

5 hours ago, midnightmadness said:

The thing that gets me here, it says I made a payment in November of the year I defaulted and I know for a fact that I did not. In fact, if you look at the statement they included, it shows that the payment was returned and they charged me an NSF fee of $36.00.

So you did make a payment, but it was returned? Strictly a hypothesis here, but I'm pretty sure this would still be considered a 'payment' for purposes of determining the start of the SOL clock. That the charge was reversed doesn't change the fact that a payment was still made. It would be like saying "I made a payment of $50 but the same day I made exactly $50 in purchases so the payment doesn't count because it was cancelled out by the purchases."

[midnightmadness]

14 minutes ago, Harry Seaward said:

 

So you did make a payment, but it was returned? Strictly a hypothesis here, but I'm pretty sure this would still be considered a 'payment' for purposes of determining the start of the SOL clock. That the charge was reversed doesn't change the fact that a payment was still made. It would be like saying "I made a payment of $50 but the same day I made exactly $50 in purchases so the payment doesn't count because it was cancelled out by the purchases."

No what I'm saying is I did NOT make a payment. My last payment from them was not in November of that year, it was earlier. The last statement from the credit card company was very weird. It shows a payment for $36.00 which I never made. Then shows the payment back as $36.00 but says it was an NSF fee. Wouldn't it be the $36.00 and then the NSF as well? It is contradictory.

 

Secondly, I don't make payments in which I cannot keep. Something is very wrong with the last statement and information that was provided on it.

[outtadebt]

A quick check of Missouri statutes appears you are on the right track with the borrowing statute. 

Here is the Missouri Civil code reference - 2009 Missouri Revised Statutes,  Title XXXV CIVIL PROCEDURE AND LIMITATIONS,  Chapter 516 Statutes of Limitation,  516.190. Limitations on actions originating in other states.

It appears you can raise the SOL defense as time barred due to California SOL if your dates are correct and MO would have to support based on the plain language of the code.  I would suggest contacting a consumer attorney on this one. You can have one or more violations that would get them very interested.  You would also need to start getting bank records to prove a payment was not made.  Make sure they did not wait to credit a payment that was made which will throw off the SOL date.  Now a days, not smart to fabricate a payment for purposes of initiating a lawsuit.  

[Harry Seaward]

43 minutes ago, midnightmadness said:

Secondly, I don't make payments in which I cannot keep. Something is very wrong with the last statement and information that was provided on it.

You need to get a statement directly from the OC. If it looks the same as the one you got from Cavalry, then you know Cavalry isn't monkeying with it. At that point the burden is on you to prove you didn't make the payment as it's unlikely the court will just take your word. 

Is this mystery payment significant anyway? In other words, say they didn't have the mystery payment, but we're reporting the correct last payment. Would the debt be out of SOL? 

[midnightmadness]

Yes, the debt would be out of SOL if this mystery payment did not exist. This was the only statement that they included in the paperwork that they gave to the court which is why I call something fishy. Not to mention many of my other things that I mention in my other post above.  I'm calling the original creditor tomorrow morning as nothing is matching up. The paperwork saying they signed the agreement over two years ago per Missouri law when I wasn't even in Missouri at the time. I've only been here for just a year.

[outtadebt]

I would not waste time with the OC.  They have sold the account.  It is dead to them.  They will just pass you back to Cavalry who will pass you back to the Law Firm.  You will be right back where you started and just wasted several valuable days.  Use your bank statements to prove no payment was made.  You can verify those records yourself, and you will get verification from your bank far faster than a Credit card company.  That should be the case even if you closed the bank account when you moved.     If you are absolutely confident on the dates and this is truly out of SOL, my first and only call would be to a Consumer Attorney.   If you have been sued out of SOL, they will probably gladly take the case, file a timely answer for you start the process of going after Cavalry and the Law Firm.   You can sit back and enjoy the show.

When is your answer due to the court.  The clock is ticking....

[Harry Seaward]

29 minutes ago, outtadebt said:

Use your bank statements to prove no payment was made.

You can't prove a negative. Cavalry will raise the possibility that a different bank account was used. While an affidavit or sworn testimony should carry more weight, it's possible the court will still have doubts. 

@midnightmadness your desire for revenge could cost you this lawsuit. Your best possible chances of moving on with your life in the shortest amount of time is going to be using arbitration. They will dismiss the case as soon as the MTC is granted. If you need a hobby for the next 12-18 months and a judgment against you for your efforts, by all means, forge ahead with trying to 'make them pay'. 

[outtadebt]

Harry, take a step back.  I agree, you can and should use both an affidavit and sworn testimony to verify the banking records (your records) are accurate.   To do other wise is perjury.  I do not agree that Cavalry would win any argument saying "Well your Honor, we think the defendant is lying and made up the records.  He has a secret account that was used to make this payment"  Come on.  Kind of like saying as the defendant "I have no recollection of the account so therefore it must not be mine" when the JBD produces the garbage bill of sale and affidavit still used in almost every case to win without any additional shred of proof.  And yes, everyone will say you can't fight that.  But I disagree as there are still several cases in my state where the JDB's have lost on defendant appeal using old tactics that everyone here says can not be defended anymore.

This is not about revenge of any kind and the OP should not look at it that way.  Why would anyone want to arbitrate a case where the SOL defense is clearly in play?  If SOL is a true affirmative defense, this case should be over at the first hearing.  Done, Kaput and finished with a proper judge.  If you arbitrate, then you get the 18 month hobby and an arbitrator who can ignore the SOL defense, award and judgment and send you to court for affirmation of the same.   You lose what can be easily won.   Bad strategy.

In this case, I would use arbitration as a second affirmative defense only if the judge really goes off the reservation and denies a SOL defense ( I am assuming the OP can prove the payment information is correct).  But if you do not raise the SOL defense at the answer to the summons, it is gone. 

It is so rare we see a JDB or OC screw up SOL dates.  Right now, Cavalry thinks they got the OP just in the nick of time.  If the OP can prove otherwise, it would be foolish not to do so.  All arbitrating does is cost the OP a couple hundred bucks (not recoverable) filing fees and lots of headache to run his own case. 

 

[Harry Seaward]

5 minutes ago, outtadebt said:

I do not agree that Cavalry would win any argument saying "Well your Honor, we think the defendant is lying and made up the records. 

Have you been living under a rock? It happens every day in courtrooms across the country.

6 minutes ago, outtadebt said:

He has a secret account that was used to make this payment" 

I'm a pretty average guy and I have 5 different bank accounts I could use to pay bills. I only use one, but there's nothing stopping me from switching it up every month. Not to mention, people turn to friends and family members to make payments for them all the time, especially when accounts get delinquent and there is a threat of the account getting turned over to collections. 

 

24 minutes ago, outtadebt said:

If you arbitrate, then you get the 18 month hobby and an arbitrator who can ignore the SOL defense, award and judgment and send you to court for affirmation of the same.   You lose what can be easily won.

Ok, so you have been living under a rock. Cavalry will never follow into arbitration. The case is over as soon as the court grants the MTC.

[outtadebt]

Throwing insults for bad decisions does not make you smarter or a better strategist.   I think you need to find the same rock and get shelter from the storm you are putting the OP into.

Think about what you are saying.  If the OP (who it appears has never been in court defending himself) actually prepares his answer, properly prepares the motion,  argues it correctly (assuming SC exclusion does not apply) and gets it approved he still has to file with JAMS or AAA and pay the fee.  So then he needs to actually file the paper work and show the court he followed through on the order.   All that does not just happen without time and effort. Been there, done that. 

Do you honestly think Cavalry will just dismiss once the MTC is granted.  In the past this was 100% correct.  But as with other strategies, I see the JBD's in my area getting a little savier and waiting till you actually file.  Kind of like the bankruptcy bluff.   Tactics evolve.  Otherwise they flip the tables, go back to court and force litigation for the OP not following the court order.  In any case, the OP must file an answer.  You are telling someone to blatantly exclude a potentially very solid affirmative defense in their answer.   A dismissal without prejudice is far different than one with prejudice and both the Law Firm and JDB knowing they might have trouble.

If I was inexperienced in court and had an opportunity to get legal counsel (probably for free) with little to no effort on my part, I would be running for that help.  I think the OP needs that in this case, not your arbitration option.

I am sorry, how big is your rock shelter.

Quote:   55 minutes ago, outtadebt said:

I do not agree that Cavalry would win any argument saying "Well your Honor, we think the defendant is lying and made up the records. 

Have you been living under a rock? It happens every day in courtrooms across the country.

Except when you can back it up with facts.  And I guess you have been in court in all the jurisdictions in the country. 

Not arguing this with you anymore, we are not going to agree.  The OP needs to decide what to do.

[Harry Seaward]

17 minutes ago, outtadebt said:

  I think you need to find the same rock and get shelter from the storm you are putting the OP into.

No no.  You're the one that's been living under a rock. Not the OP. I don't fault him for not knowing any better. You should, though. 

 

17 minutes ago, outtadebt said:

All that does not just happen without time and effort. Been there, done that. 

And your unguaranteed method is effortless? 

17 minutes ago, outtadebt said:

Do you honestly think Cavalry will just dismiss once the MTC is granted.

Yep. I'll pay his filing fee if Cavalry follows him into arbitration.

17 minutes ago, outtadebt said:

A dismissal without prejudice is far different than one with prejudice and both the Law Firm and JDB knowing they might have trouble.

No JDB is going to refile knowing they will get slapped with arbitration again.

17 minutes ago, outtadebt said:

Except when you can back it up with facts.  And I guess you have been in court in all the jurisdictions in the country. 

All one has to do is look around this board. People lose in court from California to Maine.  Conversely, arbitration has been 100% effective against JDBs. The only exceptions have been courts that deny the MTC for whatever reason, and of those cases that have been appealed, they have been reversed in the consumer's favor. 

17 minutes ago, outtadebt said:

Not arguing this with you anymore, we are not going to agree. 

Wise man.  There are facts and fantasies. There's no debate to be had when the discussion involves facts, which I happen to have on my side. 

[outtadebt]

Could not resist just so you do not drive the OP into a ditch.  Based on estimated default date, Citibank has a small claims carve out.  Arbitration is not an option.  But go ahead and keep pushing that Mr. Facts.  Great strategy.  Can't wait to see how that one works.  Cavalry will have his lunch and a default judgment served for a snack. 

People lose when they push a bad position, as you are now doing.  SOL defense wins 100% when presented.  No way around it.  Plaintiff snoozes, he loses.

Oh and on this board and others, if you decide to read you will see several posters noting that the JDB did in fact not dismiss until after the defendant actually filed for the arbitration.   They bailed after receiving the notice of acceptance from the Arbitration entity and now realized they have to pay up.   But hey, why let a few facts stand in the way of a good story you want to push. 

Peace out.