Miss Abbie

Cavalry is Suing Me, Free Attorney Not Much Help

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1 minute ago, Miss Abbie said:

I have attached it and wonder if anyone can explain what I have highlighted in yellow about Small Claims Court.

I answered this question a few posts up.  You quoted it, in fact.  :)  It's the same post with the caselaw about waiver.

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1 hour 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.

I actually completely missed what you wrote here Harry Seaward.

Some of the language is confusing though. I understand the part about Cavalry not being able to weasel out of Arbitration because we are in Small Claims Court, given it has likely filed more than 5 lawsuits this year, but how would I argue that if they offer it as a rebuttal? What proof do I have that Cavalry has indeed filed more than 5 lawsuits this year in SCC?

The portion you posted about BV80's comment completely went over my head. If possible, could you explain it more plainly when you have the time?

 

:)

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7 minutes ago, Miss Abbie said:

how would I argue that if they offer it as a rebuttal?

New York has courts called "Small Claims Court".  Your case isn't in that court.  Is it?

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2 minutes ago, Harry Seaward said:

New York has courts called "Small Claims Court".  Your case isn't in that court.  Is it?

I am specifically being sued in "Civil Court of New York, Bronx County." 

:)

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12 minutes ago, Miss Abbie said:

The portion you posted about BV80's comment completely went over my head. If possible, could you explain it more plainly when you have the time?

What I posted is part of a case that was heard in a New York court, and was appealed to the New York Court of Appeals.  Rulings from this appellate court are controlling or "binding" on all lower courts of New York, which your court is.  The ruling talks about what is required to show you waived your right to arbitration.  One way (the second part I made bold) is if you "contest the merits of the case" in court.  Basically, this means you plead your case to the court either at a trial or you would have to file a Motion for Summary Judgment, or, IMO, even respond to such a motion filed by Cavalry.  Since it doesn't appear any of those things have happened, I don't think that part applies to your situation (i.e. you haven't waived your right to arbitration by contesting the merits of the case).

The other way you can waive your right to arbitration (the first part I made bold) is if you participate in the court proceedings, and receive benefits that you wouldn't receive in arbitration.  Discovery is generally not permitted in arbitration, so the fact that you have requested, and received, discovery could be viewed by the court as a waiver of your right to arbitration.  First, it would be up to Cavalry to make this argument in opposition to your request to use arbitration (they may not for whatever reason), and second, the court would have to agree with them, and not you.  Keep in mind that contractually agreed upon arbitration is generally favored over court, and most judges want less work whenever possible.  In making my argument against waiver, I would say that you never did anything indicating "affirmative acceptance" of the judicial forum (court) and defined in the De Sapio case I cited, you also didn't realize arbitration was an option until you received the card member agreement, and also cite and comment on the Stark case BV80 posted about New York having a "long and strong public policy favoring arbitration".

But none of that even comes into play unless Cavalry argues you waived your right.

 

14 minutes ago, Miss Abbie said:

I am specifically being sued in "Civil Court of New York, Bronx County." 

So this would be your response if Cavalry tries to claim the "small claims" exemption applies.  You weren't sued in the New York Small Claims Court because you were sued in Civil Court.

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Okay, that makes perfect sense Harry Seaward.

One final silly question for the evening.. and thank you again for staying online with me all day. Again, your help and advice is so very much appreciated.

Anyway, on to my question. I am on the American Arbitration Association website filling out the Arbitration request form. Do I go to court Monday and put in a request to Compel Arbitration first, or do I apply for arbitration online via AAA first, or does it simply not matter which comes first?

 

Thank you :)

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You can complete the AAA application to attach to your motion to compel as a showing of good faith, but because the AAA fee is non-refundable, i wouldn't pay it until you know the court has granted the MTC.

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Thank you :)

I will start attempting to write up a Motion to Compel Arbitration and take it down to CLARO just to get their opinions if I did it right. Who knows, a Motion to Compel Arbitration might even be one of things they also cover. Either way, I will continue to update this thread as my case moves along.

Another question, if you don't mind.

I see in the arbitration thread there was some push-back about costs the plaintiff would incur going to arbitration. An initial fee of $900 and then $5,000 as a retainer was quoted, but later on someone disputed those numbers. I'm essentially depending on the fact that Cavalry is suing me for just over a $1,000 to back down. Are those number quoted accurate for the state of New York? Also, I see JAMS is used as the source, but because the filing fee with AAA is less, I'm gonna go with them instead.

Again, thank you. I felt really deflated when I initially entered this forum today, but now I have a bit more hope because I can do something now. 

 

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If I were you, I'd call their bluff and demand a trial. I highly doubt a witness from Citibank is showing up at trial on behalf of Cavalry. I volunteered at Westchester CLARO two years ago, I'm surprised your experience wasn't great but I guess your mileage can vary on that. 

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16 minutes ago, Miss Abbie said:

I see in the arbitration thread there was some push-back about costs the plaintiff would incur going to arbitration. An initial fee of $900 and then $5,000 as a retainer was quoted, but later on someone disputed those numbers. I'm essentially depending on the fact that Cavalry is suing me for just over a $1,000 to back down. Are those number quoted accurate for the state of New York? Also, I see JAMS is used as the source, but because the filing fee with AAA is less, I'm gonna go with them instead.

This is the AAA fee doc:
https://www.adr.org/sites/default/files/Consumer_Fee_Schedule_0.pdf

Yours falls under in-person/telephonic hearing.  Cavalry will have to pay $1,700 ($300 filing fee + $1,400 case management fee) at the onset, and then once an arbitrator is selected, they will have to pay a $2,500 arbitrator compensation retainer. If there is more than one day of hearing, they will have to pay $2,500 for each additional day.  Then if there are any telephonic pre-hearing procedures (rulings on motions, etc), those additional fees will be assessed to Cavalry as well.  Then there is a potential appeal that costs even more.  Bottom line is Cavalry's arbitration costs are much higher, and much more unpredictable than court, whereas your costs are unambiguously capped by AAA rules at $200.

 

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4 minutes ago, usctrojanalum said:

I highly doubt a witness from Citibank is showing up at trial on behalf of Cavalry.

A live witness from Citibank is not necessary.  They have an affidavit from a Citi employee.

And why would you "call their bluff" when you have a guaranteed win with arbitration?

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35 minutes ago, usctrojanalum said:

If I were you, I'd call their bluff and demand a trial. I highly doubt a witness from Citibank is showing up at trial on behalf of Cavalry. I volunteered at Westchester CLARO two years ago, I'm surprised your experience wasn't great but I guess your mileage can vary on that. 

Some CLARO people have been great, others awful and uncaring. Plus, you deal with the CLARO people who help draft documents for you, like my Request for Production and then you deal with a whole other lawyer on your court date and they are truly just going through the motions and whatever you ask of them outside of postposing the case, they will say is outside the scope of what they do.

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1 hour ago, usctrojanalum said:

An affidavit is not admissible at trial because it can't be cross examined. 

There is no requirement for an affidavit to be cross examined to be admitted as a business record. 

Even without the Citi affidavit, Cavalry's witness can introduce Citi's business records as their own.

"While we agree that the mere filing of papers received from other entities is insufficient to qualify the documents as business records, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures,
or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business"

State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD 3d 1293 - NY: Appellate Div., 3rd Dept. 2012

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48 minutes ago, usctrojanalum said:

An affidavit is not admissible at trial because it can't be cross examined. 

Wouldn’t the OP first have to get past an MSJ (assuming one would be filed)?

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35 minutes ago, Harry Seaward said:

There is no requirement for an affidavit to be cross examined to be admitted as a business record. 

Even without the Citi affidavit, Cavalry's witness can introduce Citi's business records as their own.

"While we agree that the mere filing of papers received from other entities is insufficient to qualify the documents as business records, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures,
or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business"

State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD 3d 1293 - NY: Appellate Div., 3rd Dept. 2012

I wanted to jump back into this conversation and add this article: "Defective Debt Buyer Affidavits and the Lack of Data Integrity: Other People’s Records (“OPR”) are Not “Business Records” of Midland Funding." It explains my overall belief when I started posting here today that I could win in court, given I knew the proper thing to ask the court or what Motions to raise pertaining to the Affidavit Calvary is trying to use with me.

http://www.hollandlawfirm.com/defective-debt-buyer-affidavits-and-the-lack-of-data-integrity-other-peoples-records-opr-are-not-business-records-of-midland-funding/

Edited by Miss Abbie

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9 hours ago, Miss Abbie said:

It explains my overall belief when I started posting here today that I could win in court, given I knew the proper thing to ask the court or what Motions to raise pertaining to the Affidavit Calvary is trying to use with me.

The case from that article hinges entirely on a single conclusion, which is that Capital One's activity of selling debts is not a part of it's normal course of business.  Once that supposition is made, it renders the Stalls affidavit, and the others that rely on it, worthless.  The problem with this conclusion is that Capital One sells debt portfolios all the time; several times a month.  It is in fact a part of their normal course of business.

If you notice, the court decision the author linked to doesn't cite a single piece of caselaw in it's analysis of the business records.  It's just one judge's unsubstantiated opinion.  Also, that ruling doesn't appear to create any sort of precedent, meaning it can't be used as a reference when ruling on other similar cases.  Even if it did create precedent, it's scope would be limited to Idaho courts, and would have no bearing on a New York court, or any other outside of Idaho.  And that's another thing.  Idaho appears to be very conservative in its admission of 3rd party business records.  In Arizona, where I live, the standard is considerably lower.  For the time being, there is no US Supreme Court ruling on admission JDB business records and affidavits, so there is no "global" standard that every court in the land must follow.

Finally, the title of the article is misleading.  It says that Other People's Records are not Business Records of Midland Funding.  While it may have been true in the one case discussed by the article (I have my doubts this opinion would stand scrutiny at a higher court), it's not a global fact any time one business possesses another businesses records.  For example, if you make a credit/debit card purchase at WalMart, your purchase transaction is a WalMart business record.  Walmart transmits that record to your bank for payment processing.  Your bank incorporates that purchase transaction record into its own records and relies on its accuracy to process the charges.  That incorporation and reliance transforms WalMart's business record into a business record of your bank, even though no one at your bank has any personal knowledge of how the original transaction came into existence.  And all of that happens with no affidavit or bill of sale.  It's a single line of computer code transmitted along with tens of thousands of others.  It's true there can be errors in transmission, but a.) it's so rare that it's virtually non-existent, and b.) you would have your paper receipt to show the actual transaction amount in order to dispute with your bank. If you didn't have your receipt, you would be at the mercy of WalMart to provide to you a copy of your original transaction.  For whatever reason, people have decided to reject this flow of logic when it comes to debt buyer transactions.

I think the biggest problem for debt buyers is they have been caught with their pants down in the past and people that don't want to pay their debts try to take advantage of this by portraying it as a rampant problem and therefore every transaction is worthy of microscopic scrutiny.  The reality is that there was a very very small (relatively) number of proven discrepancies which created the microscopic examination process.  That process results in a lot of rejection of records that are in fact accurate - they just don't measure up to whatever standard each particular court is using.  There are criminal courts ("beyond a reasonable doubt") that have condemned people to death with less foundation laid than we see in the 3 affidavits of the Idaho Stimpson case.  It's the quintessential mountains out of molehills.

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Thank you for clarification Harry Seaward and for continuing to answer my questions. :)

I am attempting to write up my own Motion to Compel based off the template from the Arbitration thread you posted. I know not to copy and paste so I am wondering if I should include this portion I have quoted below. Also, we are advised: "Adding case law from your own state is a good idea." Are you aware of or know where I myself might look for a case law in the state of New York that I may include in my MTC?

Quote

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

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22 hours 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"].

BV80, do you believe I can use this in my MTC now, or should I hold off until the Cavalry's lawyer possibly brings it up?

 

Thank you :)

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1 hour ago, Miss Abbie said:

should I hold off until the Cavalry's lawyer possibly brings it up?

The ATT and Stark cases are fine to include in your MTC but I wouldn't muddy the waters with any of the waiver or small claims stuff until the MTC meets some resistance. 

You can search caselaw at http://scholar.google.com. Select caselaw and then choose only New York courts. 

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4 minutes ago, Harry Seaward said:

The ATT and Stark cases are fine to include in your MTC but I wouldn't muddy the waters with any of the waiver or small claims stuff until the MTC meets some resistance. 

You can search caselaw at http://scholar.google.com. Select caselaw and then choose only New York courts. 

^^^^

THIS

 

I once lost a case when I shot myself in the foot by bringing up an issue that wound up killing me.  Had I kept my stupid mouth shut, it is possible the judge would've dismissed the case without prejudice.  In the long run it didn't make much difference, but the idea is sound.

You don't need to bring up the issue until THEY bring it up.  

At that point, you need to be prepared for a counter attack.  That is when you show the small claims waiver doesn't apply.  

If YOU bring up the small claims waiver first, the judge may just decide it applies, before the other side has a chance to think of it.

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On 2/23/2019 at 5:53 PM, Clydesmom said:

First the advice you were given by CLARO is law STUDENTS not actual attorneys.  

This is not true. CLARO is run by attorney's, law students assist with intake and drafting.

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4 hours ago, Miss Abbie said:

BV80, do you believe I can use this in my MTC now, or should I hold off until the Cavalry's lawyer possibly brings it up?

 

Thank you :)

You can wait to cite it if it’s needed.  I cited it mainly because you said that you didn’t include arbitration in your answer, so you thought it might be too late. 

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3 hours ago, usctrojanalum said:

This is not true. CLARO is run by attorney's, law students assist with intake and drafting.

I went by what the OP said in their first post:

"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."

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