Sued by Cavalry SPV I, LLC

[gametheory]

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.)

Schachter Portnoy, LLC

3. How much are you being sued for?

$3,000

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)

In person, on 11/29

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

I was personally served, so I believe so. I am in New York.

Process Service Requirements by State - Summons Complaint

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

Received a letter in the mail in September that Schachter Portnoy was retained by Cavalry. I did not respond.

9. What state and county do you live in?

New York.  Nassau County.

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

Sometime in 2016. I do not have records. Is there a way I can check this? I tried looking through my credit report, but it doesn't say.

11. When did you open the account (looking to establish what card agreement may be applicable)?

August 2006

12. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

 

6 years (New York)

6 years (S Dakota...where Citibank is incorporated)

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

I have been served. I looked it up on the court site by Index number and name and nothing came up.

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

No.

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

No.

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

20 days from 11/29

Plaintiff, by and through its attorney, Schachter Portnoy, LLC, complaining of the Defendant alleges:

1. That at all times hereinafter mentioned, Plaintiff, CAVALRY SPV I, LLC, is a limited liability company with a place of business in the Starte of New York.

2. Plaintiff, by purchase and assignment, acquired from Citibank, NA, original creditor all right, title, and interest in the defaulted account, account number ****************, of Defendant, ******.

AND FOR A FIRST CAUSE OF ACTION

3. Plaintiff, through assignment, is the lawful owner of a consumer credit agreement entered into by defendant.

4. Defendant did breach the aforesaid consumer agreement and Plaintiff seeks the sum of $3,000. Payment has been demanded by Plaintiff but has not been made.

AND FOR A SECOND CAUSE OF ACTION

5. Plaintiff seeks from Defendant the sum of $3,000, upon an account stated between them, did promise to pay Plaintiff said sum upon demand. Payment has been demanded by Plaintiff and has not been made.

WHEREFORE, Plaintiff demands Judgement against Defendat for the sum of $3,000, with costs and disbursements of this action and interest thereon.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

None.

[gametheory]

I copied this from user SIDTHEKIDD. Hope that's OK.

My intended answer:

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT

DEFENDANT, MY NAME, answering Pro Se, without waiving any affirmative defense, as and for an Answer to Plaintiff's Complaint, state the following upon information and belief:

 

1.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint.

2.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint.

AND FOR A FIRST CAUSE OF ACTION

3.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 3 of Plaintiff's Complaint.

4.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint.

AND FOR A SECOND CAUSE OF ACTION

5.  Defendant denies the allegations set forth in Paragraph 5 of Plaintiff's Complaint and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1.  Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

2.  Failure to state a claim upon which relief may be granted.

3.  Defendant denies the amounts claimed by the Plaintiff.  Defendant demands Plaintiff verifies a detailed accounting of all alleged purchases, charges, and credits to the alleged account.

4.  Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

5.  Lack of standing.

6.  Failure of consideration.

7.  Plaintiff is barred under the Fair Debt Collection Practices Act, and other relevant federal and state statutes, from collecting any interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law.  Plaintiff has failed to attach proper documentation to verify such interest is permitted.

8  Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available.

 

PRAYER FOR RELIEF

 

WHEREFORE, the defendant's pray for relief from this honorable court as follows:

A.  That the Plaintiff takes nothing by way of this Complaint,

B.  To dismiss the Complaint with prejudice based upon the admissions, denials, and defenses alleged herein,

C.  To award the Defendants' costs, and

D.  To award the Defendant such other and further relief as this Court deems just and equitable

 

Respectfully submitted

 

_____________________

 

 

Dated: December XX, 2018

[gametheory]

I don't know anything about law. I've never been sued nor have I ever sued anyone.

Does my answer look OK?

Can I e-file my answer?

It says that I need to file a copy of my answer together with proof of service with the clerk within 10 days of the service answer. How do I do this?

Thanks for any help!

 

[Guest usctrojanalum]

Looks good enough to where you will not be defaulted and get a judgment against you. 

You may want to give Nassau Suffolk Law Services Committee a call to see if you qualify for their services. They provide free legal services. 

You have 20 days from November 29 to answer.

And yes, if you think you are comfortable using the e-filing system you can electronically file the answer. I think it's a pretty convenient system.

[gametheory]

5 hours ago, usctrojanalum said:

 

Looks good enough to where you will not be defaulted and get a judgment against you. 

You may want to give Nassau Suffolk Law Services Committee a call to see if you qualify for their services. They provide free legal services. 

You have 20 days from November 29 to answer.

And yes, if you think you are comfortable using the e-filing system you can electronically file the answer. I think it's a pretty convenient system.

Thank you. So I plan on filing an MTC. Do I need my cardmember agreement on hand for proof of arbitration clause? I can't find it anywhere online as it is an old product that is no longer offered.

[BV80]

16 hours ago, gametheory said:

Thank you. So I plan on filing an MTC. Do I need my cardmember agreement on hand for proof of arbitration clause? I can't find it anywhere online as it is an old product that is no longer offered.

Go to the following link on the Consumer Financial Protection Bureau website.  You need a copy for the year the account was last in good standing.   If the account was still in good standing when you last paid in 2016, then you need the 2016 agreement  

A copy of the agreement would probably be in the archives.

https://www.consumerfinance.gov/credit-cards/agreements/

[numbersguy]

Here is part of a post of mine from years ago. Calvary also called me about a $8500 debt. I told them in a letter to stop calling. If you want to contact me send a letter. Not a true C&D but haven't heard from them since and the debt aged out. Anyway, when it comes to Calvary in NY, this is what I posted:

From research that I've done in the last few days on Cavalry (both here in their home court so to speak and upstate NY), they are the poster child for Defaults “Я” Us. At least in the NY Tri-state area suits are filed by their in-house attorney. Or is it just a coincidence that their attorney of record in the cases I looked at had the same address as Cavalry? Their upstate NY attorney uses a very similar complaint and virtually nothing submitted as evidence.

One thing they both have in common, no cases in the last few years have gone anywhere near a courtroom trial. You have one of three things happen - 1) default judgment, 2) stipulated settlement (usually more than 75% of the original complaint amount or 3) voluntary dismissal. Of the defendants that actually enter a decent answer to the complaint, i.e., one's who don't file an answer that says that they are financial strapped and have this medical condition and that is why I can't pay, the percentage of suits that end #3 goes up dramatically.

See if you can access on line various court’s websites or county clerks records to see if you can research Cavalry cases filed in IL This will give you an idea of what you’re up against. I would think the Circuit Court clerk in Morrison or Sterling might be able to point you in the right direction.

The equivalent in NY is that the county clerk is the keeper of the records of suits filed and related motions etc. Depending upon the county, you can see complaints, answers, motion, etc. that were filed on line. In other counties, you can get on line the parties involved but no details about the cases themselves unless you go to the clerk’s office and have them pull the hard copy files.

It appears to me that the only type of person that will lose to Cavalry is one who doesn't push back or a Japanese soldier that has just come out of hiding from the jungles from WW II. Even then I'm not so sure.

.

 

[numbersguy]

As for filing an answer in NY, the 20 (or 30) days doesn't start with being served. The clock for answering the suit doesn’t start until the process servers files an affidavit with the court saying that you were properly served. Once that has been filed the “official start of the clock” is 10 days later. After the 10 days you have 20 days to answer the suit (or “file” an appearance depending on the type of complaint) if you were served in person or 30 days later if you were served via another method.

In theory, you could go almost 60 days before filing and answer. It depends on when the service affidavit is filed and method of service.
 

Another thing about mentioning arbitration in your answer, you haven't elected, etc., so just having that clause doesn't make it a defense. If you're going to mention arbitration, send a letter in accordance with the arb clause in the agreement. Once that is done, you can answer the arb portion as follows depending on how your card agreement reads:

That the Court lacks jurisdiction over the person of the Defendant as Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement.

[Guest usctrojanalum]

17 hours ago, numbersguy said:

As for filing an answer in NY, the 20 (or 30) days doesn't start with being served. The clock for answering the suit doesn’t start until the process servers files an affidavit with the court saying that you were properly served. Once that has been filed the “official start of the clock” is 10 days later. After the 10 days you have 20 days to answer the suit (or “file” an appearance depending on the type of complaint) if you were served in person or 30 days later if you were served via another method.

In theory, you could go almost 60 days before filing and answer. It depends on when the service affidavit is filed and method of service.
 

 

This is only when you are served by a method other than personal delivery. The clock starts running immediately on personal in hand service. You also do not count the day of reckoning, so technically on personal delivery, clock starts running next day.

[gametheory]

On 12/9/2018 at 2:52 PM, numbersguy said:

As for filing an answer in NY, the 20 (or 30) days doesn't start with being served. The clock for answering the suit doesn’t start until the process servers files an affidavit with the court saying that you were properly served. Once that has been filed the “official start of the clock” is 10 days later. After the 10 days you have 20 days to answer the suit (or “file” an appearance depending on the type of complaint) if you were served in person or 30 days later if you were served via another method.

In theory, you could go almost 60 days before filing and answer. It depends on when the service affidavit is filed and method of service.
 

Another thing about mentioning arbitration in your answer, you haven't elected, etc., so just having that clause doesn't make it a defense. If you're going to mention arbitration, send a letter in accordance with the arb clause in the agreement. Once that is done, you can answer the arb portion as follows depending on how your card agreement reads:

 

That the Court lacks jurisdiction over the person of the Defendant as Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement.

What do I write in the letter? Who do I send this letter to? I'm trying to find more information on this. Do I actually need to go to court to file an MTC?

[Guest usctrojanalum]

If you are sued in Supreme Court - motion to compel arb is expensive - $140. If you are being sued in the district court, it's free. I don't know if that changes your thoughts on how to attack this. I don't think you need arb to beat them. A law firm I interned at 2 years ago beat two JDB's without using the arbitration technique, just keep pressing the other side in discovery for documents and witnesses that the JDB could not provide. 

[gametheory]

On 12/12/2018 at 10:39 AM, usctrojanalum said:

If you are sued in Supreme Court - motion to compel arb is expensive - $140. If you are being sued in the district court, it's free. I don't know if that changes your thoughts on how to attack this. I don't think you need arb to beat them. A law firm I interned at 2 years ago beat two JDB's without using the arbitration technique, just keep pressing the other side in discovery for documents and witnesses that the JDB could not provide. 

I was already served. Wouldn't that take discovery off the table now? I am being sued in district court. Do I file the MTC in court in person?

[Guest usctrojanalum]

No - discovery happens after you answer the complaint. Being that you are in District Court, not Supreme - doing a motion to compel arbitration has no filing fees.

The district court does not have e-filing so you need to do it hard copies. It's probably best to do it in person, because filing a motion is not as easy as it sounds. You have to worry about timing, filing out a notice of motion page properly, etc., 

CPLR 2214 is your friend for that.