Unifund Barclays - Time to fight need help

[AlmostBK]

California case

1. Who is the named plaintiff in the suit?

Unifund CCR, LLC

 2. What is the name of the law firm handling the suit?

 Law Offices of Kenosian & Miele, llp

3. How much are you being sued for?

$8,000+-

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

Barclays Bank Delaware – Juniper Card

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

Yes, served at home by sheriff. 

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

Sheriff personal served me. . 

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 from me, a lot of demands from CA's .

9. What state and county do you live in?

California, Los Angeles

10. When is the last time you paid on this account? 

Last payment was 11/2016  Original suit was filed 01/2020   Time between last payment and filing is 38 months. Three years and two months.

11. What is the SOL on the debt?

Delaware is 3 years / California is 4 years - Would like to use Delaware 3 years 

https://scholar.google.com/scholar_case?case=10121350625093322993&q=RESURGENCE+FINANCIAL+LLC+v.+CHAMBERS&hl=en&as_sdt=4,5

12. What is the status of your case?

Status is pending  Proof of Service has not been filed, I filed a GD and FW on time, FW was denied, I have filed for a FW Hearing.

I was just planning to delay and file BK but after reading and looking around it looks like I should fight this.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. How long do you have to respond to the suit?

I have filed a GD and FW. Waiting on hearing for FW.PLD-050 GD.pdf

Complaint – 1. Breach of contract   2. Common Counts “Demand does not exceed $10,000” enrichment. 

  16. What evidence did they send with the summons?

Complaint with Exhibit “A”  copy of CC Statement  dated Dec 2016 with last payment as of November 2016

17.  Just checked Credit Report and the only Barclays account was closed 05/2015.  It is list as “Credit line closed-grantor request-reported by subscriber” Also shows “Payment Status” as “Paid satisfactorily”  

[AlmostBK]

SOL 

When will SOL start any California Case Law.

I read that SOL will start the day of default. So If the CC Statement has a due date of  January 25th the account would be in default on January 26th. 

OR would is be 30 after default?? 

If it starts the day of default then I am in luck if I can use Delaware's 3 years SOL. 

Any case law in California clarifying the SOL starting date ????      

[BackFromTheDebt]

I may be wrong, but I think California has a borrowing statute, which would use the 3 year Delaware SOL. 

[nobk4me]

I think @RyanEX is the CA expert here.

[alwayswinning36]

Is there an arbitration agreement to this alleged debt? If so, couldn't that be used in Court? A lot of credit card agreements contain an arbitration agreement, while some do not. It might be worth checking into in your case if that could be used in California.

[RyanEX]

On 8/29/2020 at 1:41 PM, BackFromTheDebt said:

I may be wrong, but I think California has a borrowing statute, which would use the 3 year Delaware SOL. 

I think you're correct, this is what I have found in the past and believe it says CA will go by the SOL of a different state if shorter than CA SOL

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=361.

[AlmostBK]

Just received my Discovery from them, I will post info on it latter.

 

Just a few simple question my RFA were answered "Plaintiff is unable to admit or deny"  on lot of my questions. Some of them asking to confirm their own documents. Can thay do this? Can I file a motion to compel? 

Also  the alleged contract is 11 pages long all on one page. Impossible to read. I will request a legible copy. Don't know the best way to do this. any advice ??

 

Last the RFA were signed by their attorney but it is missing "Penalty of Perjury" statement. As I read the CCP rules RFA need to be signed under oath.

Are Attorneys an exception? Did the RFA from Unifund's attorneys need to be signed under oath????   

If their attorney did not sign under oath can I throw their reply to RFA out ???? 

 

[alwayswinning36]

18 hours ago, AlmostBK said:

Just received my Discovery from them, I will post info on it latter.

 

Just a few simple question my RFA were answered "Plaintiff is unable to admit or deny"  on lot of my questions. Some of them asking to confirm their own documents. Can thay do this? Can I file a motion to compel? 

Also  the alleged contract is 11 pages long all on one page. Impossible to read. I will request a legible copy. Don't know the best way to do this. any advice ??

 

Last the RFA were signed by their attorney but it is missing "Penalty of Perjury" statement. As I read the CCP rules RFA need to be signed under oath.

Are Attorneys an exception? Did the RFA from Unifund's attorneys need to be signed under oath????   

If their attorney did not sign under oath can I throw their reply to RFA out ???? 

 

So do you know if the contract in question would contain the Delaware choice of law cause? I reviewed the link you posted previously about it, citing that someone else used it successfully, but that was that particular case and that particular creditor whose agreement contained the clause. A quick google search shows four years is the SOL on debt in California, if there is no other states SOL that could be used. If the rule applies in California and you engaged in defending or litigating the lawsuit against you then you may have waived your right to any applicable arbitration agreement. You would definitely need to get the agreement from the original creditor, though. Likely they will try to use the one that was in effect at the time the account was charged off.

Resurgence had a valid assignment from the original creditor. We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation; (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code;^[1] and (3) section 8117 did not toll the statutory period. Given these conclusions, the court will not address whether application of section 8117 would violate the commerce clause or whether the trial court improperly admitted evidence.

When I researched 2nd quarter 2017 Barclays Bank Delaware credit card agreement with the CFPB (they keep records of the agreements by issuer), I found this:

Governing Law.
THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW.

If you need that agreement, you can find it at the link https://www.consumerfinance.gov/credit-cards/agreements/

I only estimated with your last payment being November 2016 that it may have been charged off in the second quarter of 2017. You can count on the collection agency using the agreement in force at time of charge off though. I do notice that same agreement also contains an arbitration agreement but with a  "Justice of the Peace Court" exemption. It is worded exactly like that. There is a good chance though you have no waived any right at even trying to use that in court, or forcing arbitration on the collector.

 

I hope all this info helps you, somehow.