Miss Abbie

Cavalry is Suing Me, Free Attorney Not Much Help

Recommended Posts

Greetings 

I am being sued in New York small claims court by Cavalry for just over a thousand dollars. In New York, a group called CLARO (college students in training) will give limited advice and legal services to people like myself who cannot afford an attorney. They drafted my Request for Production and told me to return to them when and if I received it. Well, when I did, I returned to them with the files Cavalry sent, but things didn’t go as I had hoped.

Cavalry sent the usual junk, a year’s worth of monthly statements with parts of the account number redacted at the bottom of several of them, a supposed bill of sale from Citibank, also heavily redacted, and a notarized affidavit from “an employee” of Citibank who of course claims to have “personal knowledge” and can vouch for everything under the soon. They did not include various other things, including an accounting of all charges.

After months of reading online I was happy to see Cavalry literally did EVERYTHING I read they would, including bogus affidavit and redacted bill of sale. I was sure CLARO would see this information and draft out some type of form to submit to the court to have both items kept out of evidence before I returned to court next month.

Sadly, the original person who drafted my Letter for Production and told me to keep coming back and “DO NOT SETTLE THIS CASE,” was not available to me and I was assigned a new person, who was overseen by two other people, who simply claimed they could not help and it was outside the scope of what they did. They told me to simply return for my court date (March 6) and I left feeling really deflated.

That was about 3 weeks ago and then as my court date started looming, I realized that maybe I had wasted time and should have taken things more in my own hands. Long story short, is it too late to keep the Bill of Sale and Affidavit off the record? My case is still in the infancy stage, I have only been to court once and it was adjourned.

Please help, while some CLARO reps and contributing lawyers can be awesome and will represent you at various court dates, but NOT in the actual trial, some are uncaring and seem to be there only to lead people to slaughter and convince them to settle. For instance, at my first court date, one lawyer, heavily pregnant and obviously tired and overburdened, was representing me for the day and 11 other people- all by herself. She also clearly wanted me to settle as most other people in the room were doing. She basically told me Cavalry is one of the few debt buyers who will bring in witnesses and that I’d most likely lose.

I’m smart and can write up things myself, but I need guidance when it comes to the formalities of filing motions to do things like request the judge throw out the bill of sale and affidavit, as well as requesting entire unredacted bill of sale, and quoting the proper New York State laws to do all of this and attack their entire case.


I’m on my own and ready to fight and do the work myself, but I need a bit of good advice. Thank you to anyone who is willing to offer that advice… I’m listening. 

Share this post


Link to post
Share on other sites
12 minutes ago, Miss Abbie said:

a year’s worth of monthly statements with parts of the account number redacted at the bottom of several of them, a supposed bill of sale from Citibank, also heavily redacted, and a notarized affidavit from “an employee” of Citibank who of course claims to have “personal knowledge” and can vouch for everything under the soon.

It's interesting you refer to these things as "junk". The court hearing your case almost certainly won't have the same opinion, considering you haven't established it as such. 

14 minutes ago, Miss Abbie said:

is it too late to keep the Bill of Sale and Affidavit off the record?

No, you can request a continuance to allow yourself time to depose the affiant. This would be at your expense, of course - travel and accommodations, court reporter, opposing counsel's time - you're probably looking at a minimum $2,500. Remember, an affidavit is sworn testimony under oath. If there's nothing on the record challenging the affiant's credibility, the court has no choice but to accept it at face value. 

But instead of messing with all of that, you can make Midland dismiss this case by using arbitration. The challenges i see for you at this point is Citi usually has a "small claims court" exception on their agreements, so if you've been sued on small claims, arbitration is probably of the table. The other possible challenge is that by requesting and receiving discovery, you may have waived your right to arbitration. We can cross that bridge when we come to it, though. Right now, arbitration is pretty much your only hope. 

Read the first few posts of this thread. 

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

 

  • Like 1

Share this post


Link to post
Share on other sites

Thank you for your response, Harry Seaward, but I find arbitration as my only answer hard to believe given what I have not only read and seen here, but what I have seen referenced in many reputable articles on the subject of junk debt buyers.

Standing is a huge issue and not one document Cavalry submitted shows without a doubt that is has standing to sue for the supposed debt or that there even is a debt. The affidavit and Bill of Sale look like copies of copies of copies of copies. Much of the info is not even readable. Signatures and names are unreadable. They look like documents any 10-year old could create on their tablet. And the affiant saying they are “an employee” of Citibank means nothing. What kind of employee? She could be the maid who comes in to clean up at night, she could be someone who works for Cavalry, or she may not exist at all.

Affidavits and Bill of Sales, these things need to be authenticated. No judge is just supposed to accept them on face value. There are rules and laws for admitting evidence and I don’t believe these obviously fake documents meet the smell test and I want to challenge them in court.

I am not going to agree to give Cavalry one red cent of what little money I have unless a judge rules against me, which I believe they won’t if I can PROPERLY mount a defense. That's the help I want. I don't want another person telling me to roll over and die and that there is no hope, when so many others have shown otherwise.

Please, is anyone willing to help me defend myself?

Thank you :)

 

(Please excuse me if my post sounds gruff. Life is hard right now. Daughter diagnosed with cancer a few years back and life fell apart. I'm literally trying to keep from going under emotionally :)

 

Your help is appreciated.

Share this post


Link to post
Share on other sites
5 minutes ago, Miss Abbie said:

Thank you for your response, Harry Seaward, but I find arbitration as my only answer hard to believe given what I have not only read and seen here, but what I have seen referenced in many reputable articles on the subject of junk debt buyers.

Standing is a huge issue and not one document Cavalry submitted shows without a doubt that is has standing to sue for the supposed debt or that there even is a debt. The affidavit and Bill of Sale look like copies of copies of copies of copies. Much of the info is not even readable. Signatures and names are unreadable. They look like documents any 10-year old could create on their tablet. And the affiant saying they are “an employee” of Citibank means nothing. What kind of employee? She could be the maid who comes in to clean up at night, she could be someone who works for Cavalry, or she may not exist at all.

Affidavits and Bill of Sales, these things need to be authenticated. No judge is just supposed to accept them on face value. There are rules and laws for admitting evidence and I don’t believe these obviously fake documents meet the smell test and I want to challenge them in court.

I am not going to agree to give Cavalry one red cent of what little money I have unless a judge rules against me, which I believe they won’t if I can PROPERLY mount a defense. That's the help I want. I don't want another person telling me to roll over and die and that there is no hope, when so many others have shown otherwise.

Please, is anyone willing to help me defend myself?

Thank you :)

I think you are in over your head.  Seriously.

From what you said, you needed to work with someone to start mounting your defense, and that person is no longer available, and the new person is worthless.

Which mean, if you can't mount a good defense BY YOURSELF, you will lose.  I am not saying you might lose, but that you WILL lose.  

It sounds like you don't know how to mount a good defense by yourself.

There are two major advantages in your case to arbitrate:

1.  The people suing you don't like arbitration.  They have shown they will not pursue arbitration for a measly $1000.  It would cost them many times that amount to win the $1000, so they would rather walk away.  If that happens, you have won.

2.  In the unlikely event they go through with arbitration, you will buy yourself some time to learn what you need to know to win.  

Of course, the choice is yours.  

Share this post


Link to post
Share on other sites

Thank you both for your comments. I am reading the link Harry posted and familiarizing myself with the possibility of using arbitration.

However, in possibly asking for arbitration, am I admitting to owing this debt?

Share this post


Link to post
Share on other sites
26 minutes ago, Miss Abbie said:

not one document Cavalry submitted shows without a doubt that is has standing to sue

This isn't criminal court. They don't have to show anything "without a doubt". All they have to do is convince the judge that it's more likely than not that you had a debt and that Midland purchased the rights to collect the debt from you. The first part is done by showing account statements with your name and address on them. The second part is accomplished with the bill of sale. The affidavit wraps everything up in a pretty pink bow by telling the court everything it's looking at is "true and correct".

8 minutes ago, Miss Abbie said:

However, in possibly asking for arbitration, am I admitting to owing this debt?

No. At most you'd be admitting you had an account with Citi. This is of little significance because a.) the account statements already show this to be true, b.) it dosen't prove Midland owns it or how much is owed, and most importantly c.) Midland will dismiss once the court orders them to arbitrate and you pay the $200 filing fee. 

Share this post


Link to post
Share on other sites

Also, just to clarify. It's been years since anyone on this board has been able to reliably win a debt collection lawsuit by arguing standing.

It used to happen on a fairly regular basis that courts would reject a JDBs own employee testimony about records created by the original creditors. In the last few years, courts have migrated to using "adoptive business records doctrine". This means Midland's employee can admit Citi's records provided he/she testifies that they received the records, incorporated them into their own and relied upon them as part of conducting their day to day business. There are literally hundreds of case law rulings across dozens of jurisdictions that establish this as standard operating procedure, and there are no jurisdictions that have expressly rejected it. Meaning if it hasn't been considered in a court ruling binding on your local court (very unlikely), it is almost certain to be found acceptable. 

  • Like 1

Share this post


Link to post
Share on other sites
12 minutes ago, Harry Seaward said:

This isn't criminal court. They don't have to show "without a doubt". All they have to do is convince the judge that it's more likely than not that you had a debt and that Midland purchased the rights to collect the debt from you. The first part is done by showing account statements with your name and address on them. The second part is accomplished with the bill of sale. The affidavit wraps everything up in a pretty pink bow by telling the court everything it's looking at is "true and correct".

No. At most you'd be admitting you had an account with Citi. This is of little significance because a.) the account statements already show this to be true, b.) it dosen't prove Midland owns it or how much is owed, and most importantly c.) Midland will dismiss once the court orders them to arbitrate and you pay the $200 filing fee. 

I still can't get over how the advice I'm being given here contradicts everything else I've seen, read or been told, even by other lawyers.

So, the fact that these documents are heavily redacted and unreadable means nothing? How does a year's worth of statements prove there's debt when everything about the account except my name is redacted? How is a Bill of Sale considered fact when again, it looks forged and over 95% of it is redacted. Are you all claiming none of this can be challenged? Even in small claims court there are rules for admitting these docs into evidence. How is an affidavit from "an employee" fact when it lacks evidentiary underpinning? Seriously, you should see how bad these docs look. Even with a magnifying glass I couldn't make out half to what it's saying.

Cavalry, not Midland, is doing what all junk debt buyers do. They lack evidence so they attempt to use an affidavit in place of anything substantial.

There are rules and laws and what I'm being told here appears to say whatever the Plaintiff says is automatically facts in the eyes of the court.

I've seen case after case of people fighting and winning the kind of fishy documents I'm up against.

Also, I've been studying "Defending Junk Debt Buyer Lawsuits" by Peter Holland and he says defendants should challenge shady documents like the ones Cavalry is attempting to use. 

Again, thank you all for your answers, I am still listening and learning and am grateful for your continued responses :)

 

viewcontent.cgi?referer=&httpsredir=1&ar

Share this post


Link to post
Share on other sites
6 minutes ago, Harry Seaward said:

Also, just to clarify. It's been years since anyone on this board has been able to reliably win a debt collection lawsuit by arguing standing.

It used to happen on a fairly regular basis that courts would reject a JDBs own employee testimony about records created by the original creditors. In the last few years, courts have migrated to using "adoptive business records doctrine". This means Midland's employee can admit Citi's records provided he/she testifies that they received the records, incorporated them into their own and relied upon them as part of conducting their day to day business. There are literally hundreds of case law rulings across dozens of jurisdictions that establish this as standard operating procedure, and there are no jurisdictions that have expressly rejected it. Meaning if it hasn't been considered in a court ruling binding on your local court (very unlikely), it is almost certain to be found acceptable. 

Thank you. I saw your post after I submitted mine.

I will continue to listen, learn and research :)

Please don't close this post.

Share this post


Link to post
Share on other sites

What people say here is based on what we see in courts.  

There is another fly in the ointment -- the judge or magistrate or whatever.  Often the person hearing your case doesn't really understand the laws, and just wants to plow through all these cases to clear up his docket.  For example, in my state, if you lose in small claims court you can automatically appeal to circuit court.  My county has the most pro-consumer judges in the state, but the small claims magistrates just want to push things through.  The best attorney in my county will often advise people that they WILL lost in small claims, then they can demand an appeal in circuit court, and they win in circuit court.  

Which means if the judge or magistrate just wants to hurry the case through, or he thinks you owe the debt, or he doesn't like "deadbeats", you can lose even if the law is on your side.  

Sad, but true.

Share this post


Link to post
Share on other sites
14 minutes ago, Miss Abbie said:

So, the fact that these documents are heavily redacted and unreadable means nothing?

It could mean something, but what happens if you show up to court and they have perfectly legible copies to hand to the judge? At best you could request a continuance review the records, but at that point you're just delaying the inevitable.

If you want, post the documents for us to take a look at.

I totally get the urge to want to fight these guys. I battled Cavalryhard core for a year-and-a-half including an appeal and I lost. I chronicled everything I did, including all of my filings, on this message board. Ironically, i have since cost Cavalry 10x the amount of my debt ( plus who knows how much with other JDBs) by helping people like you use arbitration. :-)

Share this post


Link to post
Share on other sites
6 minutes ago, BackFromTheDebt said:

What people say here is based on what we see in courts.  

There is another fly in the ointment -- the judge or magistrate or whatever.  Often the person hearing your case doesn't really understand the laws, and just wants to plow through all these cases to clear up his docket.  For example, in my state, if you lose in small claims court you can automatically appeal to circuit court.  My county has the most pro-consumer judges in the state, but the small claims magistrates just want to push things through.  The best attorney in my county will often advise people that they WILL lost in small claims, then they can demand an appeal in circuit court, and they win in circuit court.  

Which means if the judge or magistrate just wants to hurry the case through, or he thinks you owe the debt, or he doesn't like "deadbeats", you can lose even if the law is on your side.  

Sad, but true.

Thank you again. I am reading the link on arbitration Harry Seaward posted and I have a a few questions now (and probably more later).

1. Have I lost the right to ask for arbitration because it wasn't mentioned as part of the original Answer the CLARO lawyer filed on my behalf? 

2. What EXACTLY do I do either now or on my court date, which is March 6th? 

 

:)

Share this post


Link to post
Share on other sites

1.  Depends on the state.  I don't know NY well enough to answer.  In my state, the answer would be no.  In Florida, the answer would be yes.  It doesn't hurt to try.

2.  If I were in your shoes, I would learn what the procedures are for filing a motion with the court.  Realize that anything you send the judge must also go to the opposing attorney.  Then, I would file a Motion To Compel arbitration (MTC for short).  Do this ASAP!  

And then prepare for court just in case.  Prepare as much as a defense as possible in case your MTC doesn't work.  

 

Harry will correct me if I am wrong, i hope.  

Share this post


Link to post
Share on other sites

Thank you all for bearing with me. I have attached the files you requested in PDF form (let me know if you want the individual images). The light blue marks is stuff I scribbled out for privacy. Please excuse the writing you see on the documents, that was me taking notes and pointing out flaws I was told to look for. Other than that, what you see is everything Cavalry submitted.

By the way, Harry Seaward, I no zero desire to fight. None at all. I am unknowledgeable and afraid of losing. I have to fight only because I cannot afford to lose. I’m sure you’ve heard it all in your years here, but I am truly fighting for what few crumbs me and my daughter have left. As I said, at 17 she was diagnosed with a rare form of leukemia (AML Type 6) and with that went her health, my job… our livelihood. I started a business last year to try and climb out of poverty and made a whopping $10,000. My rent is $968 month, so you do the math. LOL. I simply can’t afford not to fight or worse, have a judgement issued against me. 
 

A-1-converted.pdf

Share this post


Link to post
Share on other sites
50 minutes ago, Miss Abbie said:

I still can't get over how the advice I'm being given here contradicts everything else I've seen, read or been told, even by other lawyers.

First the advice you were given by CLARO is law STUDENTS not actual attorneys.  Second:  if they have little to no experience with these type of cases then the advice is limited.  All the volunteers here do is credit cases.  We have a bit more experience even if we have not gone to law school.

2 hours ago, Miss Abbie said:

They did not include various other things, including an accounting of all charges.

NO court requires an accounting of all charges.  Under credit card laws and the card agreement you only have 6 months to dispute a charge as inaccurate or fraudulent.  Once that expires the charge is valid.  Based on that the last 6 months of statements is sufficient to prove a balance.

3 hours ago, Miss Abbie said:

I need guidance when it comes to the formalities of filing motions to do things like request the judge throw out the bill of sale and affidavit, as well as requesting entire unredacted bill of sale, and quoting the proper New York State laws to do all of this and attack their entire case.

Then you need to hire a lawyer.  What you are needing is full fledged representation.  NY does have consumer friendly laws allowing the challenging of those documents but you need to know how to do it and the case law to support it.  We cannot be your attorney any more than the CLARO students can either.

43 minutes ago, Miss Abbie said:

1. Have I lost the right to ask for arbitration because it wasn't mentioned as part of the original Answer the CLARO lawyer filed on my behalf? 

The only answer is maybe.  The problem with trying it now is not only have you engaged in the litigation process including hearings and discovery but the CITI card agreement has a carve out for small claims court.  Two very big hurdles to over come.

Share this post


Link to post
Share on other sites
6 minutes ago, Clydesmom said:

First the advice you were given by CLARO is law STUDENTS not actual attorneys.  Second:  if they have little to no experience with these type of cases then the advice is limited.  All the volunteers here do is credit cases.  We have a bit more experience even if we have not gone to law school.

NO court requires an accounting of all charges.  Under credit card laws and the card agreement you only have 6 months to dispute a charge as inaccurate or fraudulent.  Once that expires the charge is valid.  Based on that the last 6 months of statements is sufficient to prove a balance.

Then you need to hire a lawyer.  What you are needing is full fledged representation.  NY does have consumer friendly laws allowing the challenging of those documents but you need to know how to do it and the case law to support it.  We cannot be your attorney any more than the CLARO students can either.

The only answer is maybe.  The problem with trying it now is not only have you engaged in the litigation process including hearings and discovery but the CITI card agreement has a carve out for small claims court.  Two very big hurdles to over come.

While the Request for Production may be discovery, I don't know if my first court date could be called a hearing. I didn't speak to the judge, I spoke to my lawyer for the day in a crowded room and then we went to a man who worked off on the side who gave me a court date to come back on March 6. From my standpoint, I could be wrong legally, but nothing has really happened in my case at all.

Edited by Miss Abbie

Share this post


Link to post
Share on other sites
3 minutes ago, Miss Abbie said:

While the Request for Production may be discovery, I don't know if my first court date could be called a hearing. I didn't speak to the judge, I spoke to my lawyer for the day in a crowded room and then we went to a man who worked off on the side who gave me a court date to come back on March 6. From my standpoint, I could be wrong legally, but nothing has really happened in my case at all.

Whether or not anything happened it is participating in the legal process of the suit.  Request for Production IS discovery.  You are basically asking for the evidence they intend to use.  Filing and answer, discovery and attending court dates is participating in the process of the suit.  ALL of which the court can decide means you waived your right to arbitration.  Add to that the exclusion for small claims cases and this is going to be VERY VERY hard to over come and get a MTC arbitration approved by the court.

Share this post


Link to post
Share on other sites
50 minutes ago, Miss Abbie said:

Thank you again. I am reading the link on arbitration Harry Seaward posted and I have a a few questions now (and probably more later).

1. Have I lost the right to ask for arbitration because it wasn't mentioned as part of the original Answer the CLARO lawyer filed on my behalf? 

2. What EXACTLY do I do either now or on my court date, which is March 6th? 

 

:)

New York has a "long and strong public policy favoring arbitration." Stark v. Molod Sptiz DeSantis & Stark, P.C., 9 N.Y.3d 59, 66 (2007).

Under both federal and New York law, however, "[t]here is no per se rule that arbitration must be pleaded in the answer in order to avoid waiver.”  Thyssen, Inc. v Calypso Shipping Corp., S.A., A.M., 310 F3d 102, 105-106 [2d Cir. 2002][stating the Second Circuit rule]; MCC Dev. Corp. v Perla, 81 AD3d 474, 475 [1st Dept 2011], lv denied 17 NY3d 715 [holding under New York law that the acts of interposing answers with affirmative defenses or counterclaims may be "fairly characterized as necessary protective measures, not acts that are clearly inconsistent with defendants' contractual rights to arbitration"].

Share this post


Link to post
Share on other sites
2 minutes ago, BV80 said:

New York has a "long and strong public policy favoring arbitration." Stark v. Molod Sptiz DeSantis & Stark, P.C., 9 N.Y.3d 59, 66 (2007).

Under both federal and New York law, however, "[t]here is no per se rule that arbitration must be pleaded in the answer in order to avoid waiver.”  Thyssen, Inc. v Calypso Shipping Corp., S.A., A.M., 310 F3d 102, 105-106 [2d Cir. 2002][stating the Second Circuit rule]; MCC Dev. Corp. v Perla, 81 AD3d 474, 475 [1st Dept 2011], lv denied 17 NY3d 715 [holding under New York law that the acts of interposing answers with affirmative defenses or counterclaims may be "fairly characterized as necessary protective measures, not acts that are clearly inconsistent with defendants' contractual rights to arbitration"].

Thank you Clydesmom.

BV08, what you posted gives me hope. So long as I have knowledge I can make it through this. I can defend myself.

I am not looking for anyone here to be my lawyer. A man named Rodney Miner's 2014 case is profiled on Tough Nickel's website about beating debt buyers. He had knowledge and won. If I just know what motions to possibly file, advice is all, I can stand up for myself. Even a little bit of knowledge is better than none. I'm just looking for advice and I am open to all of it. :)

https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

Share this post


Link to post
Share on other sites

Re: small claims court, I just found this document that says a commercial business cannot file more than 5 lawsuits per month statewide in order to use small claims court.  I'm sure Cavalry has filed thousands of cases per month across the entire state, so this knocks over the small claims barrier.
https://www.nycourts.gov/courthelp/pdfs/SmallClaimsHandbook.pdf

 

Re: waiver, in addition to the case BV80 just cited, I also found this one:

 

"The crucial question, of course, is what degree of participation by the defendant in the action will create a waiver of a right to stay the action. In the absence of unreasonable delay, so long as the defendant's actions are consistent with an assertion of the right to arbitrate, there is no waiver. However, where the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory. Thus, entering a stipulation to extend the time to answer is a purely defensive action and is not inconsistent with a later attempt to force arbitration. (Matter of Haupt v. Rose, 265 N.Y. 108.)
In contrast, contesting the merits through the judicial process is an affirmative acceptance of the judicial forum and waives any right to a later stay of the action.
(Gold Plastering Co. v. 200 East End Ave. Corp., 282 App. Div. 1073, affd. 307 N.Y. 668; Board of Educ. v. Mancuso Bros., 25 Misc 2d 122 [motion for summary judgment].)"

De Sapio v. Kohlmeyer, 35 NY 2d 402 - NY: Court of Appeals 1974
https://scholar.google.com/scholar_case?case=7023923408743442767

The question the court would be faced with is whether or not you enjoyed advantages offered by the judicial forum or "contest[ed] the merits" up to this point.   I would say no to the second question based on what you've told us thus far.  The first question may be a little more dicey.  Discovery may very well be considered an advantage you wouldn't get in arbitration.

13 minutes ago, Miss Abbie said:

Miner's 2014 case is profiled on Tough Nickel's website

Remember what I said about it having been several years since anyone has been reliably able to challenge standing?  2014 is a long time ago.  Also, the guy that runs Tough Nickel actively posts information he knows is false.  Someone from this board has confronted him about it and he refuses to correct his info.

  • Like 1

Share this post


Link to post
Share on other sites
22 minutes ago, Miss Abbie said:

 

I am not looking for anyone here to be my lawyer. A man named Rodney Miner's 2014 case is profiled on Tough Nickel's website about beating debt buyers. He had knowledge and won. If I just know what motions to possibly file, advice is all, I can stand up for myself. Even a little bit of knowledge is better than none. I'm just looking for advice and I am open to all of it. :)

https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

Oh my goodness!  Please do not follow the advice of Brian Gray.  Much of his information is incorrect.  You notice that he does not provide court rulings to support his claims.  That’s because his claims are his opinions, and he has not bothered to research the courts.  In fact, you won’t be able to find court rulings on some of his claims (such as subrogation in credit card cases) because they’re not valid claims.  He found some information on the internet that he liked but didn’t bother to research it.   He simply claims it as fact because it sounds good   

He cites Rodney Miner’s opposition to summary judgment, but what he fails to point out is that the plaintiff voluntarily dismissed the lawsuit   The judge made no ruling.   Without a ruling, we don’t know which party would have won.  We don’t know if Miner’s opposition would would have succeeded or not   

I described just a few of his misrepresentations in the last post of the following thread.  

https://www.creditinfocenter.com/community/topic/330215-some-opinions-please/

I also show the misrepresentations in his validation letter in the following link.

https://www.creditinfocenter.com/community/topic/329454-deceptive-validation-request/

 

Share this post


Link to post
Share on other sites
23 minutes ago, Harry Seaward said:

Re: small claims court, I just found this document that says a commercial business cannot file more than 5 lawsuits per month statewide in order to use small claims court.  I'm sure Cavalry has filed thousands of cases per month across the entire state, so this knocks over the small claims barrier.
https://www.nycourts.gov/courthelp/pdfs/SmallClaimsHandbook.pdf

 

Re: waiver, in addition to the case BV80 just cited, I also found this one:

 

"The crucial question, of course, is what degree of participation by the defendant in the action will create a waiver of a right to stay the action. In the absence of unreasonable delay, so long as the defendant's actions are consistent with an assertion of the right to arbitrate, there is no waiver. However, where the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory. Thus, entering a stipulation to extend the time to answer is a purely defensive action and is not inconsistent with a later attempt to force arbitration. (Matter of Haupt v. Rose, 265 N.Y. 108.)
In contrast, contesting the merits through the judicial process is an affirmative acceptance of the judicial forum and waives any right to a later stay of the action.
(Gold Plastering Co. v. 200 East End Ave. Corp., 282 App. Div. 1073, affd. 307 N.Y. 668; Board of Educ. v. Mancuso Bros., 25 Misc 2d 122 [motion for summary judgment].)"

De Sapio v. Kohlmeyer, 35 NY 2d 402 - NY: Court of Appeals 1974
https://scholar.google.com/scholar_case?case=7023923408743442767

The question the court would be faced with is whether or not you enjoyed advantages offered by the judicial forum or "contest[ed] the merits" up to this point.   I would say no to the second question based on what you've told us thus far.  The first question may be a little more dicey.  Discovery may very well be considered an advantage you wouldn't get in arbitration.

Remember what I said about it having been several years since anyone has been reliably able to challenge standing?  2014 is a long time ago.  Also, the guy that runs Tough Nickel actively posts information he knows is false.  Someone from this board has confronted him about it and he refuses to correct his info.

Okay, I still reading the link you provided about Arbitration, and here is something that alarms me greatly. I am essentially admitting to owning this account- this debt. I need to see the possible end-game if I go through with Arbitration. Do all the things I was possibly going to bring up in court all of a sudden go out the window and I simply HOPE they won’t go through with the case because of money? How can I fight what I hoped to convince a judge was a lack of reliable evidence, if I admit this account and that the card agreement they attached is valid, which it may not be. It’s dated 3 years prior to the first card statement they sent me. Everything I’ve read says deny, deny, deny. I can’t wrap my brain around accepting this debt and then having no defenses in the event Arbitration is approved and I’m sitting in front of an Arbiter having accepted the debt.

Also, I have zero information I can bring into court showing I ever made one payment on this card, canceled the card or paid off the final bill. How can I defend myself against a debt I agreed was mine? I’m defenseless.


Thank you all for continuing to help me, you have no idea what it means  to me :)

By the way, did you see the documents I attached?
 

Share this post


Link to post
Share on other sites
11 minutes ago, Miss Abbie said:

I am essentially admitting to owning this account- this debt.

You're acknowledging you had an account with Citi.  That's it.  You're not admitting Cavalry owns it or that the amount they claim is correct.  But as I said before, that is irrelevant because Cavalry will dismiss this case once the court orders them to arbitrate and you pay the $200 filing fee.  They have never gone though with arbitration in the dozens of times people here have used it against them.  Not once.

I understand this seems too good to be true, but take comfort in knowing that if you have a legitimate case in court, you can make that same case in arbitration.  You also have access to a free appeal process in arbitration that you would have to pay hundreds of $$$ for if you stay in court, and that appeal process costs Cavalry tens of thousands of $$$.  If they don't dismiss when they get hit with the $3,000-$5,000 initial bill, you can be sure they will think twice when they get a bill for 3 times that amount on appeal.  All to collect a $1,000 debt.  This isn't rocket science.  Cavalry won't be around long if they spend $5,000 to collect a $1,000 debt they paid $100 for.  Simple economics, and a company that wants to stay in business, are on your side.

Share this post


Link to post
Share on other sites

Thank you again Harry Seaward.

Please keep my thread open, as I'm sure I will be back. My next court date is March 6th and on Monday I intend to go down to the courts and submit a motion to move things into Arbitration.

Again, all your advice had been greatly appreciated, so very much :)

Share this post


Link to post
Share on other sites

I already have another question.

The Credit Card Agreement I have was sent to me by the Plaintiff. I have attached it and wonder if anyone can explain what I have highlighted in yellow about Small Claims Court. I am specifically being sued in "Civil Court of New York." 

 

Thank you again :)

Scan20190223073902.jpg

  • Like 1

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.