California sued by Calvary. Court vs. arbitration ?

[NetworkEngineer]

Hi -

I've spent several nights combing this forums here and have learned quite a bit. I've gone thru the ASTMedic and HomelessinCA threads and they are very inspiring. Due to a job loss, I am unable to pay any credit card bills at this time. 

So I am being sued but haven't been served yet. Here are the details:

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.) Winn Law Group

3. How much are you being sued for? Approx $3,700

4. Who is the original creditor? (if not the Plaintiff) Citibank, N.A.

5. How do you know you are being sued? (You were served, right?) Not served yet, but the process server has been out a few times already. Already pulled the summons and complaint from the court's website.

6. How were you served? (Mail, In person, Notice on door) Not served yet

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

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? Sent DV to Cavalary and Winn Law.

9. What state and county do you live in? Los Angeles County, California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) August 2018

11. When did you open the account (looking to establish what card agreement may be applicable)? July 2017 - I found the cardmember agreement and there is an arbitration clause.

12. What is the SOL on the debt? To find out: 4 years

Statute of Limitations on Debts

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). Not been served yet.

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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). YES

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? not served yet, but the summons indicates 30 days. I believe the clock doesn't start until I am served.

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.  The only thing attached to the complaint is "Exhibit "A", which is a credit card statement (1) that lists a $2,400 balance.

18.  How did you find out about this site? Google search

The complaint lists 2 causes of action: Account Stated and Money Lent

The Citi card member agreement specifies AAA for arbitration. From reading other posts here, it appears that since Cavalry may not be paying the arbitrator, AAA may refuse to hear the case unless I file a Motion to Compel (and of course, the judge grants it...).

I'm sure I'll have several questions as I proceed thru my case, but the three main ones are:

1. If I elect arbitration, can I still use the "CCP96 / lack of service of affiant" as one of my defenses ?

2. When I file my answer, I am planning using the general denial. Should I file a Demurrer instead (and point to the cardmember agreement's arbitration clause )?

3. Pros and Cons of using Arbitration vs. the Limited Civil process ? This is where I am really stuck. There seems to be advantages (& disadvantages) to both.

A little off topic, but the reason I didn't put the exact amounts above is part of me is wondering if the JDB's lawyer's would ever read these forums and gain an insight into strategy ?

Thanks for any input. This is a little unnerving to say the least. Should I contact Winn and arrange an agreeable meeting time to meet with their process server? My kids were home alone yesterday and the process server banged fairly loud on the door and proceeded to open the mail slot on the front door to peak inside. I've told my kids if this happens again to use the mace I put near the front door.

 

 

[Harry Seaward]

While the court path risk in California is considerably lower than anywhere else in the country, I personally wouldn't take any chances in court when it's essentially guaranteed that Cavalry will dismiss their lawsuit when faced with arbitration. 

[NetworkEngineer]

Thanks Harry for the info. Time to prepare my MTC for Arb.

[NetworkEngineer]

I was finally served a few days ago. I have until December to file an Answer. After much thought, I am going with the arbitration route. I think I have finished my Motion to Compel Arbitration. Can someone more knowledgeable than me have a look and let me know if there's anything I should fix ?

This is for Los Angeles County in California.  A few things I did learn:  In California, the MTC Arbitration may be filed IN LIEU of an Answer/general denial. There is no need to file both. This is covered in Calif Code of Civil Procedure 1281.7

I also found something about "there's no need to request Arb from the opposing party prior to filing an MTC". The legal theory behind this is that since the Plaintiff already filed a complaint in Court, the motion should direct the court to take notice that the filing of the lawsuit alone affirmatively establishes such refusal ( I need to add this to my MTC).

There's a good article about this here:
https://www.pooleshaffery.com/news/2015/january/a-formal-demand-for-arbitration-no-longer-necess/

I cannot tell everyone enough about how helpful and empowering this forum has been.

If this thread should be moved to the Arbitration forum, can a mod do this ?

Motion to Compel Arbitration - REDACTED.pdf

[Dgree]

13 hours ago, NetworkEngineer said:

I was finally served a few days ago. I have until December to file an Answer. After much thought, I am going with the arbitration route. I think I have finished my Motion to Compel Arbitration. Can someone more knowledgeable than me have a look and let me know if there's anything I should fix ?

This is for Los Angeles County in California.  A few things I did learn:  In California, the MTC Arbitration may be filed IN LIEU of an Answer/general denial. There is no need to file both. This is covered in Calif Code of Civil Procedure 1281.7

I also found something about "there's no need to request Arb from the opposing party prior to filing an MTC". The legal theory behind this is that since the Plaintiff already filed a complaint in Court, the motion should direct the court to take notice that the filing of the lawsuit alone affirmatively establishes such refusal ( I need to add this to my MTC).

There's a good article about this here:
https://www.pooleshaffery.com/news/2015/january/a-formal-demand-for-arbitration-no-longer-necess/

I cannot tell everyone enough about how helpful and empowering this forum has been.

If this thread should be moved to the Arbitration forum, can a mod do this ?

Motion to Compel Arbitration - REDACTED.pdf 154.03 kB · 2 downloads

2 comments...

1. On your cover sheet, Under the notice of motion and motion, be sure to include the date, time, Department and judge for the motion hearing. Also be sure to attach the confirmation page from the reservation to the end of it.

2. Your Memorandum of Points and Authorities is a SEPARATE document. It must also have its own cover sheet with the case information listed.  

[RyanEX]

I went the trial route, so don't know the arb process - but there are some recent CA threads where people did, you should be able to find the guidance you need

[NetworkEngineer]

Dgree - Thanks for your input. I'll make a separate doc for the points & authorities.

Do you know where I can find information on the "timing" of the hearing on the motion ? The Court Reservation System will let me pick any date, but I am thinking this motion should be in the hands of all parties at least 30 days before the hearing date. Or is it 45 days ? and do I need to allow an extra five days due to it being mailed ?

As it stands now, my hearing date is during the week between Christmas and New Years.

 

[Dgree]

7 hours ago, NetworkEngineer said:

Dgree - Thanks for your input. I'll make a separate doc for the points & authorities.

Do you know where I can find information on the "timing" of the hearing on the motion ? The Court Reservation System will let me pick any date, but I am thinking this motion should be in the hands of all parties at least 30 days before the hearing date. Or is it 45 days ? and do I need to allow an extra five days due to it being mailed ?

As it stands now, my hearing date is during the week between Christmas and New Years.

 

Motions must be filed and served 16 COURT DAYS before the hearing. Add 5 calendar days if served by personal mail. Proof of service must be filed 5 court days before the hearing. 
 

So I would look to set the hearing out far enough that it is before your court date but with enough time to file and serve a motion. 

[NetworkEngineer]

Thanks for the timing info. Today I got my affidavit for the card member agreement notarized. I attached my affidavit and the card member agreement to the MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS (had that still in the clipboard...)

Another question - many years ago before online filing, it was required that the Proof of Service be attached as the last page of the Motion or whatever was being filed. Is it still done this way with electronic filing ? Reason I ask is that on the LA County E-Filing system one of the options is to file a "Proof of Service" - so it appears it CAN be done separately . I am hoping I can just file the POS with my motion and not pay the additional filing fees for the 2 x POS's I'll need (One for the Motion and one for the Memo).

Thanks again for all your help. I have reserved a hearing date between Christmas and New Years for my motion and I plan to have it mailed out tomorrow. 

 

[fisthardcheese]

On 11/6/2019 at 1:35 PM, Harry Seaward said:

While the court path risk in California is considerably lower than anywhere else in the country, I personally wouldn't take any chances in court when it's essentially guaranteed that Cavalry will dismiss their lawsuit when faced with arbitration. 

I also, personally, find the arbitration method to be easier and less to learn on the fly.   Also in California there is state law protecting the consumer from having to ever pay ANY arbitration fees, so the risks of using arbitration in CA are even lower than anywhere else - making it essentially nill.

[Dgree]

On 11/18/2019 at 11:35 PM, NetworkEngineer said:

Thanks for the timing info. Today I got my affidavit for the card member agreement notarized. I attached my affidavit and the card member agreement to the MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS (had that still in the clipboard...)

Another question - many years ago before online filing, it was required that the Proof of Service be attached as the last page of the Motion or whatever was being filed. Is it still done this way with electronic filing ? Reason I ask is that on the LA County E-Filing system one of the options is to file a "Proof of Service" - so it appears it CAN be done separately . I am hoping I can just file the POS with my motion and not pay the additional filing fees for the 2 x POS's I'll need (One for the Motion and one for the Memo).

Thanks again for all your help. I have reserved a hearing date between Christmas and New Years for my motion and I plan to have it mailed out tomorrow. 

 

You can electronic file the Notice of Motion and The P and A without the signed POS. The POS needs to be filed 5 court days before the hearing. 
 

For example this is what I did:

1. Electronically file Notice of Motion, P and A and proposed order.

2. Serve, via personal mail, the above documents AND include an unsigned copy of the POS. (Must be done 16 court days + 5 calendar days)

3. Electronically file the POS (must be done 5 court days prior to hearing)

[NetworkEngineer]

Thanks for that timeline.  I filed everything yesterday except the POS, which I have. I'll file that tonight. 

So at this point I guess it's just sit and wait for either the JDB's lawyer to call or show up at the MTC for Arb hearing at the end of December.

Reading thru the court's web site, it looks like some of the courts will make a "tentative" ruling on routine motions and on the morning of the hearing, I can ask the clerk what the tentative ruling is. At least if it doesn't go my way, I'll have a few minutes to prepare by reviewing the case law on the cases I cited in my Memo.

[fisthardcheese]

On 11/21/2019 at 12:30 AM, NetworkEngineer said:

Thanks for that timeline.  I filed everything yesterday except the POS, which I have. I'll file that tonight. 

So at this point I guess it's just sit and wait for either the JDB's lawyer to call or show up at the MTC for Arb hearing at the end of December.

Reading thru the court's web site, it looks like some of the courts will make a "tentative" ruling on routine motions and on the morning of the hearing, I can ask the clerk what the tentative ruling is. At least if it doesn't go my way, I'll have a few minutes to prepare by reviewing the case law on the cases I cited in my Memo.

Also watch for the Plaintiff to file an Opposition to your MTC.  If they do, you have the chance to file a response to that in order to counter the arguments they bring up, but it is likely a short window to file that response.

[NetworkEngineer]

Thanks. I'll keep a watch out. Funny thing about the JDB's law firm: It was actually another tenant that was served, but she gave the process server her name and subsequently passed the papers to me. On the Proof of Service, the process server checked the "substituted service" box. They included a certification that they followed up that substituted service with a mailed copy of the summons/complaint which I have yet to receive. Not a big deal since I already had a copy of the complaint prior to even being served, but it's a good reminder that I need to keep checking the court's website for new filings, as I can't count on them mailing anything.

Looking back, I am really glad I sent my response CMRRR - I just got the green card back yesterday.

 

[LoveIsPower]

On 11/16/2019 at 8:35 PM, RyanEX said:

I went the trial route, so don't know the arb process - but there are some recent CA threads where people did, you should be able to find the guidance you need

I also have only done the regular trial route and never done arbitration.  I am pretty curious about it, since so many people are getting great results with it!  I'll be following your thread closely, @NetworkEngineer!

On 11/20/2019 at 3:39 AM, fisthardcheese said:

I also, personally, find the arbitration method to be easier and less to learn on the fly.   Also in California there is state law protecting the consumer from having to ever pay ANY arbitration fees, so the risks of using arbitration in CA are even lower than anywhere else - making it essentially nill.

Learn something new every day! Definitely curious!  The regular trial route in California is working like a charm lately -- but arbitration may be a whoooole lot easier!  Good luck! ?

[beatpixie]

Hi all!

 

I'm in a similar situation with Midland Funding and looking for an actual template to use for MCL for Arbitration but with a counter claim for unfair debt practices. Comenity bank apparently sold my account to Midland approx 2 years ago. I have not once received any communication from Midland that I am aware of and when I had called Wayfair/Comenity when the account was charged off I was told they could not defer that information to me. Flash forward two years later and I receive a summons at my house (the summons mind you did not have the correct address for me on it, but whatever) so I called the attorneys in an attempt to get some discovery materials and requested communications that midland had made to me during this two year time period. I recorded all the phone conversations and in this first one I was told she would put that all together along with the amount of purchases broken down. I received the paperwork just 3 days before I am due to provide a response (no court date is set) and low and behold there is no information from Midland except one page showing where they bought the debt in 2017 and the communication was between Comenity bank and Midland, not myself. 

Next up I began totaling the amount of the judgement and I have been charged 1500+ in late fees and interest and no credit for items that were actually returned. The actual amount of the debt is closer to 2500. 

During my first conversation with the attorneys representing Midland the rep (who said she was not an attorney) said that the total was 3,714.  When I called again today after receiving the packet missing the documents I had requested the total had gone up over 4100. The new rep told me because of legal fees. I questioned this as part of the judgement because the summons states 3,714 not 4100 dollars, she didnt have an answer for me. 

So what I want to do is proceed with a response: MCL with arbitration but with a counter claim under the Federal Consumer Credit Protection Act due to the way this has all been handled. 

Can anyone help with a template of sorts to use or some guidance. I have been round and round in the forums and I think I am now overcomplicating this lol.  I have the Credit Card Agreement stating they will be responsible for all arbitration fees to use as an exhibit as well and should I mention that I have recordings of the phone calls or no?  Maybe best to just keep it simple? 

 

Thanks in advance for any help! This forum has me feeling a little more positive on this process. The rep today said that their parameters with midland will not allow them to offer any settlement under 3400.00 paid over a 4 year term. 

 

[fisthardcheese]

On 11/29/2019 at 5:07 PM, beatpixie said:

Hi all!

 

I'm in a similar situation with Midland Funding and looking for an actual template to use for MCL for Arbitration but with a counter claim for unfair debt practices. Comenity bank apparently sold my account to Midland approx 2 years ago. I have not once received any communication from Midland that I am aware of and when I had called Wayfair/Comenity when the account was charged off I was told they could not defer that information to me. Flash forward two years later and I receive a summons at my house (the summons mind you did not have the correct address for me on it, but whatever) so I called the attorneys in an attempt to get some discovery materials and requested communications that midland had made to me during this two year time period. I recorded all the phone conversations and in this first one I was told she would put that all together along with the amount of purchases broken down. I received the paperwork just 3 days before I am due to provide a response (no court date is set) and low and behold there is no information from Midland except one page showing where they bought the debt in 2017 and the communication was between Comenity bank and Midland, not myself. 

Next up I began totaling the amount of the judgement and I have been charged 1500+ in late fees and interest and no credit for items that were actually returned. The actual amount of the debt is closer to 2500. 

During my first conversation with the attorneys representing Midland the rep (who said she was not an attorney) said that the total was 3,714.  When I called again today after receiving the packet missing the documents I had requested the total had gone up over 4100. The new rep told me because of legal fees. I questioned this as part of the judgement because the summons states 3,714 not 4100 dollars, she didnt have an answer for me. 

So what I want to do is proceed with a response: MCL with arbitration but with a counter claim under the Federal Consumer Credit Protection Act due to the way this has all been handled. 

Can anyone help with a template of sorts to use or some guidance. I have been round and round in the forums and I think I am now overcomplicating this lol.  I have the Credit Card Agreement stating they will be responsible for all arbitration fees to use as an exhibit as well and should I mention that I have recordings of the phone calls or no?  Maybe best to just keep it simple? 

 

Thanks in advance for any help! This forum has me feeling a little more positive on this process. The rep today said that their parameters with midland will not allow them to offer any settlement under 3400.00 paid over a 4 year term. 

 

You should start your own thread as to not get everything confused with the OP in this thread.

Start with this link to learn how arbitration works:

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy/

You  should not file a counter claim if you wish to motion to compel arbitration.  You must choose one or the other for court.

[NetworkEngineer]

A quick update: Nothing has really changed. I have a hearing on my Motion to Compel Arbitration later this week. I'll update everyone on how it goes. 

 

[NetworkEngineer]

A quick update: Today was the hearing for my Motion to Compel Arbitration and Stay Proceedings. My Motion was granted !! If anyone wants it, I'll be glad to post a redacted copy of my paperwork.

(This is for Los Angeles County in California, but everything in it is valid statewide.)

Speaking of which, in my MTC I had included a proposed order. In the days before electronic filing, this would have probably been OK. The judge asked that I file an order for arbitration separately (within 5 days) and he would sign it.  The court also scheduled an OSC for Arbitration 6 months out. 

So I basically extracted my proposed order from my MTC and filed it today. After that is signed by the judge, I have to serve it, along with the OSC notice, on opposing counsel. 

Speaking of opposing counsel - they never showed up ! The way this court works is that a JDB will have several cases that one lawyer will handle. When the cases for Cavalry Portfolio were called (my JDB), I expected my case to be in that "bundle". It wasn't.  It was a very big relief looking over to an empty plaintiff table.

Question for anyone: After I serve the Order mentioned above, should I immediately open my AAA Arbitration case ? This will cost me $200. Or, will the JDB open the AAA case, since it is them suing me. I've read thru the Arbitration section of this site and there's advantages to me filing first (FDCPA violations to start...). Or should I reach out to the JDB directly ?

Some other random observations from my day in court:

1. There were over 60 cases on the court calendar today. Most were to obtain default judgments, so yes, most people don't fight back. Most of these were handled between 9am and 12 noon.

2. The lawyer handling Midland Funding requested dismissal on all of the cases where they could not serve the defendant.

3. One lawyer was complaining about having 700 court appearances per month !

4. There is some type of attorney service that the JDBs use. The JDB attorneys-for-hire log into a web site and can "pick up" cases that are in the queue. This allows them to "pick up" cases being heard in one particular court. Apparently there is scoring or rating system involved so some attorneys will get more (or maybe better paying?) cases than others.

I'll update this if anything else comes up. Thanks everyone for helping me navigate this legal maze.

 

[Harry Seaward]

6 hours ago, NetworkEngineer said:

After I serve the Order mentioned above, should I immediately open my AAA Arbitration case ? This will cost me $200

Yes. This is the one caveat to using arbitration. You can ask the court to order Cavalry to reimburse you the $200 when they go back to court to ask for dismissal, but most people don't look a gift horse in the mouth. 

6 hours ago, NetworkEngineer said:

Or, will the JDB open the AAA case, since it is them suing me.

They won't file. Some agreements have language specifying who initiates, but unless stated otherwise, you're the one that asked for arbitration so you initiate. 

6 hours ago, NetworkEngineer said:

I've read thru the Arbitration section of this site and there's advantages to me filing first (FDCPA violations to start...)

There's no FDCPA violation. They always have the option to dismiss their own claims.  FDCPA violations would come in to play if you had your own claims against them, and they refused to participate in arbitration for those claims. 

6 hours ago, NetworkEngineer said:

Or should I reach out to the JDB directly ?

No. Walt until you have your order signed by the court, then open the AAA case. AAA will send Cavalry the initial invoice, and they should then make their move to dismiss their lawsuit. 

[LoveIsPower]

7 hours ago, NetworkEngineer said:

A quick update: Today was the hearing for my Motion to Compel Arbitration and Stay Proceedings. My Motion was granted !!

First of all -- congratz on this, @NetworkEngineer! Also being in LA County, I'm following your case and cheering you on!

7 hours ago, NetworkEngineer said:

If anyone wants it, I'll be glad to post a redacted copy of my paperwork.

This will be great!  It will help many that will come after you.  We all appreciate it!  Thanks!

On 11/20/2019 at 3:39 AM, fisthardcheese said:

Also in California there is state law protecting the consumer from having to ever pay ANY arbitration fees, so the risks of using arbitration in CA are even lower than anywhere else - making it essentially nill.

I'd love to have @fisthardcheese weigh in on this.  Maybe he can guide you to how to use this law so you don't have to pay any fees.  Or it could be like @Harry Seaward said, where you can recoup your fees after it's all done.

[Harry Seaward]

53 minutes ago, LoveIsPower said:

I'd love to have @fisthardcheese weigh in on this.  Maybe he can guide you to how to use this law so you don't have to pay any fees.  Or it could be like @Harry Seaward said, where you can recoup your fees after it's all done.

Unless there is another law, CCP 1284.3(a) prohibits an arbitrator from ordering a losing consumer to pay the costs and fees incurred by the winning nonconsumer party. That doesn't mean a consumer won't have to pay the filing fee.  Since this case will never see the award stage in arbitration, it would be up to the court to award the filing fee back to the consumer. 

[NetworkEngineer]

Thanks Harry for your advice. Another note regarding Arbitration fees in Calif, also in Calif. Code of Civil Procedure 1284.3: 

If your income is less than 300% of the federal poverty guidelines, you automatically qualify for a fee waiver.

 

[Harry Seaward]

51 minutes ago, NetworkEngineer said:

If your income is less than 300% of the federal poverty guidelines, you automatically qualify for a fee waiver.

There ya go! 

[NetworkEngineer]

My Motion to Compel Arbitration was granted a couple of weeks ago.  I promised a few other members of the forum I would post a redacted copy of my court docs. So see below.

Obviously you will want to fill it in with your own information. In the Case Caption section (Page 1 of most of these docs where it lists VS. your name), you will want to make sure you enter the name exactly as it appears on the complaint you were served with. 

In Los Angeles County, anyone can sign up on the court's website to submit documents electronically. If your court has this option, I would suggest using it as it's a time-saver.  Lawyers are REQUIRED to use it, but folks like us are not required to do so.  You can also reserve court dates using this system. 

For example, after I was served, I filed the Motion to Compel Arbitration instead of filing an answer (you can do this in California, per CCP 1281.7.  While working on typing up your MTC, you will need to get a hearing date from the court.  Using the online system, I picked a date that was about 45 days away. If you don't go the online route, you should be able to telephone the court and ask the clerk if you can calendar your MTC. Be sure the date is far enough in the future that you have enough time to serve the opposing party AND file your proof of service with the court.  Although not required, I always have the person who does my mailings send them Certified Mail, Return Receipt Requested (CMRRR).  This way you have absolute proof they got it.

I'm around to answer questions. I'm not a lawyer by any means, but I can tell you what has worked for me.

Redacted Motion to Compel. Arbitration.pdf Redacted Order to Arbitration.pdf Redacted Memorandum of Points and Authorities in Support of MTC.pdf