MidFloridaLife

Sued by Cavalry in Florida in small claims

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I am being sued by Cavalry for a Macy's credit card collection in small claims court. I went over the documents 4 times and there is no specified time frame for me to answer, which I find odd.

I just received a summons to appear for a pre-trial conference 07/22/2021 either in person or via Microsoft Team. It is also states that my case "may be eligible to participate in Online Dispute Resolution as a way to resolve this matter" by emailing the court no later than 14 days prior to the scheduled conference. I looked at the credit card agreement, and it has the small claims/arbitration clause. Not sure how to proceed at this point.

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? Hunt & Kahn

3. How much are you being sued for? $959.34

4. Who is the original creditor? Department Stores National Bank (Macy's)

5. How do you know you are being sued? Served

6. How were you served? In person

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

8. What was your correspondence (if any) a couple of letters from them, I never answered.

9. What state and county do you live in? Orange County, FL

10. When is the last time you paid on this account? 2018

11. When did you open the account? 1996

12. What is the SOL on the debt? 5 years

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). Pending

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?  No

16. How long do you have to respond to the suit? (This should be in your paperwork). No deadline listed

Claims:

1. Damages in this action do not exceed $8,000.00.

2. Defendant resides or regularly conducts business in Orange County, Florida. 3. Department Stores National Bank was the original creditor (or successor in interest to the original creditor) of the debt at issue in this matter and opted to relinquish ownership of same. Cavalry SPV I, LLC, by virtue of legal or equitable assignment, is currently the owner of the debt as evidenced by the document(s) attached hereto. All conditions precedent required to bring this action have occurred or have been performed. COUNT I -ACCOUNT STATED X)00000a9801 Plaintiff repeats and realleges each and every material allegation set forth in paragraphs 1 through

3 hereinabove and incorporates the same by reference.

4. Before the institution of this action, Defendant and Plaintiffs predecessor in interest had business transactions between them wherein Plaintiffs predecessor in interest provided goods, services, money, or extended credit to Defendant with the expectation that Defendant would pay for same, and on or about the date of attached invoice(s), statement(s), or account summary, Plaintiffs predecessor in interest and Defendant agreed upon, or consented to, the resulting balance.

5. Plaintiffs predecessor in interest rendered to Defendant one or more invoices, statements, or account summaries a copy of which is attached hereto and incorporated herein.

6. Defendant received the invoice(s), statement(s), or account summary and did not object to same.

7. The attached invoice(s), statement(s), or summary show(s) the outstanding balance was $959.34. 21279798

8. Defendant has failed to pay the amount due.

9. Defendant owes the Plaintiff the sum of $959.34.

WHEREFORE, Plaintiff requests judgment against Defendant for the sum of $959.34 plus costs (if any). COUNT II — QUANTUM MERUIT =000=9801 Plaintiff repeats and realleges each and every material allegation set forth in paragraphs 1 through 3 hereinabove and incorporates the same by reference.

10. Prior to this action, Plaintiffs predecessor in interest extended credit, loaned money, or provided goods or services to Defendant.

11. Defendant benefited from extension of credit, money, goods, or services provided Defendant by Plaintiffs predecessor in interest.

12. Defendant has failed to pay Plaintiff or Plaintiffs predecessor in interest for the extension of credit, money, goods, or services.

13. It would be inequitable for Defendant to retain the benefit of the extension of credit, money, goods, or services received by Defendant without paying Plaintiff or Plaintiffs predecessor in interest for same.

14. The failure of Defendant to pay the Plaintiff or Plaintiffs predecessor in interest for the extension of credit, money, goods, or services has caused the Defendant to be unjustly enriched at the expense of the Plaintiff. 15. As of the date of this lawsuit, Defendant owes the Plaintiff the sum of $959.34.

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

Bill of Sale & Assignment without my name or account number.

A small table with a sale ID and redacted account number and balance.

An excel table with sale amount, account open date, last payment date, my contact info, last 4 SSN, and account number, all correct.

A full credit card statement showing that exact amount

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

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@MidFloridaLife  Do you have the complete credit card agreement?  You can look here:  

https://www.consumerfinance.gov/credit-cards/agreements/

If so, what does it say about small claims and can you claim binding arbitration?  

What they've sent you looks pretty solid, except for the sale and assignment.  

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@admin

Is my best bet just to settle at this point? Here is what the agreement says for arbitration:

Covered claims • You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your account, a previous related account or our relationship (called "Claims"). • If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim. Except as stated below, all Claims are subject to arbitration, no matter what legal theory they're based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us or you or claiming through us or you, or by someone making a claim through us or you, such as a coapplicant, authorized user, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

• We won't initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt

• Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are here considered as one person. How arbitration works • Arbitration shall be conducted by the American Arbitration Association ("AAA") according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed ("AAA Rules"), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA's website (www.adr.org) or by calling 800-778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address. • Arbitration may be requested any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA. • The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law. • The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute. Paying for arbitration fees • We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney's fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable

 

 

 

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@MidFloridaLife I might just settle.  Small claims is notoriously informal and not subject to the same rigorous rules that regular court is.  The judge is likely to be persuaded by the credit card statement that was produced.  Small claims does not have discovery and trying to insist that you don't know if the sale was legally sold or assigned is probably not going to work.  You might bring up this fact any way when trying to settle to give you some leverage.    

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3 hours ago, admin said:

Small claims does not have discovery

In Florida it does.

3 hours ago, admin said:

and trying to insist that you don't know if the sale was legally sold or assigned is probably not going to work.

Florida is one of the few states that requires that a consumer be notified in writing when their debt is sold and to whom.  This could be a valid defense.

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