JohnDeereMan

Being sued by Patenaude & Felix on behalf of TD BANK USA (Target CC) in CA

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1. Who is the named plaintiff in the suit?

  • TD Bank USA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

  • Law offices of Patenaude & Felix

3. How much are you being sued for?

  •  Less than $1,000

4. Who is the original creditor? (if not the Plaintiff)

  • TD BANK USA, N.A for a target credit card

5. How do you know you are being sued? (You were served, right?)

  • Served at home, summons given to relative

6. How were you served? (Mail, In person, Notice on door)

  • Served at home, summons given to relative

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

  • Yes

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

  • None

9. What state and county do you live in?

  • Riverside County in California

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

  •   July 2018

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

  • Early 2018

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

  • Within statue of limitations

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

  • Active, court website still displays waiting on serve. Hearing set for winter 2020 saying: HEARING RE: ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE ISSUED AGAINST PLAINTIFF FOR FAILURE TO FILE DEFAULT JUDGEMENT PURSUANT TO CRC 3.74 (CORONA) 
  • Now this is the part that I don't get, has a default judgment already been made against me? I don't think so, I did a name search and this is the only court case that pops up. To my understanding, a default judgement can only be made if I had not responded to the summons. But I was just served yesterday and am so confused why this is in the summons at all. The case was filed in the first week of October 2019.

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').

  • 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?

  • 29 calendar days. No questionnaire received. Cause of action reads: 1a) account created between plaintiff and defendant where defendant was indebted to plaintiff. 1b) within the last four years 1c) last 4 digits of account number, defendant has been unjustly enriched by virtue of defendant. 2) For amount (below $1,000) 3) For such other and further relief as the court deems just and fair 

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

  • None

18.  How did you find out about this site?

  • Google search

This doesn't seem like a regular collections lawsuit to me only because of the weird hearing to show why the plaintiff hasn't filed a default judgment. Is the court trying to clear their case load or something and saw that this case fell between the cracks? Also, I understand that it seems like there aren't strategies to win against OC lawsuits, aside from proving identity theft and SOL expiration. Since its a small amount, settlement in a lump sum is an option BUT that weird hearing thing is making me think they might've made a mistake in their lawsuit...and maybe it is in my favor?

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Also if I were to settle, can I trust the law firm to dismiss the lawsuit in time? (of course I'll ask for the agreement in writing) I mean would it be best to still file a response (and if so, do I do a general denial - even if I'm "settling" with the law firm?

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The court computers set up specific events so that they can flag cases for dismissal if the plaintiff does not pursue the case. In this case, the are telling the plaintiff that they have to file their motion for summary judgement by such and such a date. They plaintiff may try for a summary judgement even if you do answer but all you have to show is that there are material facts in question that require a trial for the judge to decide.

Look for threads that deal with California because there are specific protections for debtors in that state that are not available in the other 49 states. They will show you how to file your answer and prepare to do discovery.

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@WhoCares1000

Thanks for clearing that up. Sounds like this is normal and the Court is just trying to be proactive. My game plan is this:

  1. Call the plaintiff law firm to see if they'll a reduced amount in the form of a lump sum settlement with a guarantee of dismissal (in writing) if I comply. It may be worth it to settle when considering the time it would take me to fight it - either from using my precious free time or having to take time off from work
  2. If they don't want to settle I'll go through a BOP request as I've seen in other threads and file a general denial. I qualify for fee waivers and assistance from pro-bono lawyers who donate their time to a local law help agency. My hope would be that they don't have the entire account information from Target because there wasn't a verification attached to the summons or in the court system.
  3. Follow through in the same fashion as MouseRabbit's thread below me. BUT this is an original creditor suit and not a JDB so this may all be moot and incur more fees for me and end in a judgement against me. 

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Two things

1) Check your account agreement for an arbitration clause. If you have an arb clause it can be used to make this go away. Generic agreements for the year the account was opened can be searched for online.

2) While OCs technically have an advantage over a JDB in this type of suit (more likely to be able to produce a live witness from the OC at trial), I have yet to see one apply that advantage in the threads on this board. Every OC thread I've read, they followed the same playbook as a JDB. Of course there can always be a first time, but they are held to the same standard regarding evidence (a live & qualified witness to authenticate documents) and still bear the full burden of proving their case that a JDB does. CA members have beaten OCs using the same strategy.

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I found this screen shot from when I opened the account that has the credit agreement in it. I don't see any thing about Arbitration in it. Although I can be mistaken, after all this is new territory for me.

Also, in response to your number 2 point I think the majority of OC threads on here the consensus is to settle and settle, barring some gross misconduct made by the plaintiffs. To settle as soon as possible to avoid more court fees and damages. 

Credit Card _ Target.pdf

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29 minutes ago, JohnDeereMan said:

Also, in response to your number 2 point I think the majority of OC threads on here the consensus is to settle and settle, barring some gross misconduct made by the plaintiffs. To settle as soon as possible to avoid more court fees and damages.

California threads?

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6 minutes ago, JohnDeereMan said:

Well, there is this thread:  

 It might be the only one but its fairly recent.

That was started a few days ago.

It's up to you, though, whatever you are comfortable with & we're all here to help. As someone who has been on the board for a while, I can tell you there are quite a few OC threads from California (the state in which the suit occurs matters a great deal) that were fought and won. Some via arbitration, others via the trial process.

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Also I may have been mistaken on the verification. In the summons, three is a section called Declaration RE: Venue (is this verification?) It reads:

The undersigned declare:

  1. That I am the attorney at law, duly license to practice before all Courts in the state of california 
  2. I am an associate with the Law Offices of Patenaude & Felix, APC, counsel of record for Plaintiff herein.
  3. I make this Declaration based on my personal knowledge, except for those items which are stated to be based on my information and belief. If called to testify I could, and would, competently testify to the matters contained herein, based upon my personal knowledge, except for that which is state to be based on my information and belief, and with respect to those items, I believe them to be true.
  4. Based on the information in this office's file, this the the proper Judicial District because at least on Defendant resides in this Judicial District.
  5. This Action is not subject to California Civil Code section 1812.10 or California Civil Code Section 2984.4.
  6. This Action is subject to California Code of Civil Procedure section 392 et seq. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 06,2019, San Diego California.

(Edit) Never mind about this section, just googled and saw that venue merely is a term over location of the trial 

Edited by JohnDeereMan
Just googled

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Thank you. I'm just trying to wrap my head around the matter, rules and procedures. It is kinda fun in a sense of researching and learning new things. If I hadn't chosen my current path, I might've ventured into law school.

I just hope to have some well researched ways for solving this by next week at least. 

  • Haha 1

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On 11/15/2019 at 4:55 PM, RyanEX said:

That was started a few days ago.

It's up to you, though, whatever you are comfortable with & we're all here to help. As someone who has been on the board for a while, I can tell you there are quite a few OC threads from California (the state in which the suit occurs matters a great deal) that were fought and won. Some via arbitration, others via the trial process.

I agree 100% with what @RyanEX said.  Plenty of OC wins in California.  Plenty.  But, it's important to go the route you're comfortable with.

Just remember that California is a whole lot more consumer friendly than other states.  As long as you do the work and don't miss deadlines. 😀

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