Cavalry SPV using Gurstel to sue

[MalekaiArcher]

Hi, I have been spending hours on end reading everyone who has gone through what I am going through currently but need some help and advice. 
Background:

citibank forward card- defaulted (last payment made May 6 2015)
Amount in question: $9208.10

Cavalry bought debt and sent DV with proof through Gurstel Law. 

Complaint filed May 6 2021 exactly 6 years of SOL from my research. 
I have tried settling with Gurstel but only will accept over $7000 which I have denied. 

I reside in Utah the complaint was filed in District Court in my county. I filed my answer the day after being served and filed MTC at the same time. 
my answer defenses were as followed: 
Debt ownership
The plaintiff is not the original owner of the debt and may not be able to prove that it rightfully owns the debt.

Laches, estoppel or unclean hands
 The creditor/plaintiff waited too long to bring the claims, or
 it is unfair for the creditor/plaintiff to bring the claims, or
 the creditor/plaintiff behaved badly with regard to the alleged debt.

Mitigation of damages

Statute of Limitations 

So I was worried that I wouldn’t get approved for MTC because of the credit agreement for Citibank says Small Claim court is not subject to arbitration and in Utah small claims is under 11k. However, the court Gurstel filed in is our District court not or county Justice court (I live in a rural town). Do I have a good chance to being granted MTC? I can’t afford an attorney and had one do a free consult and said they couldn’t find anything that may be sketchy but said I could retain them for 4-5k to help. I don’t have that money nor the money to settle with Gurstel or lose this court case. According to Utah credit card SOL is 6 years and from my reading up the clock starts at the last payment received by OC, which was May 6 2015 making May 6 2021, 6 years exactly. Which is why I added Laches to my answer. I haven’t had much luck reading up on people using this argument, but it feels like they waited till the last minute to do anything and causes prejudice to me as a defendant. 
I tried in good faith to settle this debt with the creditor, the law firm barely communicates with me and I have asked to file for financial hardship and no one gets back with me. In my answer I put that I didn’t have enough information to agree or disagree and asked for discovery of documentation from the plaintiff. But they only served me with summon paperwork and complaint.  
I really hope that the judge moves for Arbitration to stay out of court but I worry that due to the amount in question the Calvary won’t dismiss and will pay for the arbitration fees. 
It really sucks that they technically made the complaint within the SOL, and just as we are getting out of the pandemic. I am a part-time working mom and worry they will garnish my wages and I’d hate to file bankruptcy just as my credit is getting some what better. I offered to settle for $2000 and denied it and want about 75% of a debt that is already so old. I just need reassurance that they might dismiss with my MTC.

thank you in advance!!! 

 

 

 

[BackFromTheDebt]

Usually the SOL is based on the date of first default, meaning a month after your last payment.  So SOL probably won’t work unless they are very lazy.  Which could happen. 
 

I cannot predict what will happen in any individual case.   Filing an MTC is probably your  best bet.  If granted, the JDB will usually, but not always, walk away from the case.  It would probably help your settlement position if they don’t walk away. 

[BV80]

10 minutes ago, BackFromTheDebt said:

Usually the SOL is based on the date of first default, meaning a month after your last payment.  So SOL probably won’t work unless they are very lazy.  Which could happen. 

Just to clarify, in most states, a payment resets the SOL.  A month after the date of first default and the date of last payment can be 2 different dates.  Therefore, in most states, the SOL will begin to run on the date of any payment made after the first default.  

[MalekaiArcher]

So my last payment was May 6, 2015. And according to my Credit report it says date for first delinquency is June 8 2015. Are you saying the court will rule June 8 as the start of SOL? I’m sorry I’m still learning all of this and appreciate your response.
Either way I put SOL as an affirmative  defense because it still puts the burden on the JDB to prove it. The JDB bought the debt in 2017 and are now going to court right as the SOL was expiring. So I also used failed to mitigate damages along with the doctrine of laches. Even though I didn’t admit I am the owner of the debt in question, for it being such an old debt I have no paper trail or my own documents to know if JDB documents are valid. In the DV they sent me a statement, the bill of sale on the debt to them and a credit agreement which is where I found the arbitration clause but the credit agreement it self doesn’t have any indication that it is linked to me, it just looks like they printed a copy offline. But the attorney saw this paperwork and said it all looked like it was don’t proper by JDB.

[BV80]

20 minutes ago, MalekaiArcher said:

So my last payment was May 6, 2015. And according to my Credit report it says date for first delinquency is June 8 2015. Are you saying the court will rule June 8 as the start of SOL? I’m sorry I’m still learning all of this and appreciate your response.
Either way I put SOL as an affirmative  defense because it still puts the burden on the JDB to prove it. The JDB bought the debt in 2017 and are now going to court right as the SOL was expiring. So I also used failed to mitigate damages along with the doctrine of laches. Even though I didn’t admit I am the owner of the debt in question, for it being such an old debt I have no paper trail or my own documents to know if JDB documents are valid. In the DV they sent me a statement, the bill of sale on the debt to them and a credit agreement which is where I found the arbitration clause but the credit agreement it self doesn’t have any indication that it is linked to me, it just looks like they printed a copy offline. But the attorney saw this paperwork and said it all looked like it was don’t proper by JDB.

Yes, June 8 was when the card went into default and no payment was made after that date.

[MalekaiArcher]

6 minutes ago, BV80 said:

Yes, June 8 was when the card went into default and no payment was made after that date.

Thank you! So I filed MTC arbitration and it’s within our district court and according to Citibank’s Arbitration clause. So hopefully I can get the judge to approve the motion to get out of court since they the JDB has kept a decent paper trail. I just can’t believe they won’t even really work with me on settling such an old debt. They act like it’s newer because they are going off the date they purchased the debt in 2017. 

[BV80]

24 minutes ago, MalekaiArcher said:

Thank you! So I filed MTC arbitration and it’s within our district court and according to Citibank’s Arbitration clause. So hopefully I can get the judge to approve the motion to get out of court since they the JDB has kept a decent paper trail. I just can’t believe they won’t even really work with me on settling such an old debt. They act like it’s newer because they are going off the date they purchased the debt in 2017. 

They know the date the SOL began to run, so they’re not really acting like it’s newer because of the date they purchased it.  They know it only matters that the lawsuit was filed before the SOL expired, 

[BackFromTheDebt]

You never know what will happen. 
 

I did have a few creditors wait until a few months before SOL before threatening to sue.  In one case it was because the file sat in the drawer of a lawyer who had left the firm until their new attorney found it just before SOL.  
 

Sometimes right before the SOL the debt owner will wake up and decide to do something before it goes SOL.  
 

That is not your concern. You have no control over that. 
 

What you can control is your case in arbitration.  It is possible that the documentation they will need is gone because too old.  Or maybe not.  
 

MOST of the time JDBs will just go after the low hanging fruit.  If you take it into arbitration you are no longer low hanging fruit.  MOST of the time they will walk away.  That is your concern. How to make yourself too much of a bother for them to deal with. 
 

What is also your concern— did this JDB commit any FDCPA violations?  

[MalekaiArcher]

No violations from what I can tell but now I’m finally getting response from the law firm via email from my proposal and that they understand I can’t accept their offer but are now asking what I can pay monthly and that I should pay them what I can each month at the full balance due. Is this them now realizing I tried to negotiate and know I MTC and want me to just settle so they can get money? They refuse to go lower than $7500 and spent day’s trying to call and email and now the manager on my case has emailed me twice today on this. They filed for disclosure and discovery but still not sure their response to arbitration. Should I just not respond via email until I get court approval for MTC? 

[WhoCares1000]

2 hours ago, MalekaiArcher said:

No violations from what I can tell but now I’m finally getting response from the law firm via email from my proposal and that they understand I can’t accept their offer but are now asking what I can pay monthly and that I should pay them what I can each month at the full balance due. Is this them now realizing I tried to negotiate and know I MTC and want me to just settle so they can get money? They refuse to go lower than $7500 and spent day’s trying to call and email and now the manager on my case has emailed me twice today on this. They filed for disclosure and discovery but still not sure their response to arbitration. Should I just not respond via email until I get court approval for MTC? 

If you cannot come to an agreement, simply email the manager state that their offer is not agreeable and that you will not participate in discovery until you MTC is heard by the court. If they wish to put up a better offer, you will consider it. You have to stay in communications with the attorney for the other side but you don't have to take abuse from the process either.

[MalekaiArcher]

14 minutes ago, WhoCares1000 said:

If you cannot come to an agreement, simply email the manager state that their offer is not agreeable and that you will not participate in discovery until you MTC is heard by the court. If they wish to put up a better offer, you will consider it. You have to stay in communications with the attorney for the other side but you don't have to take abuse from the process either.

Sounds good. I definitely will do that. I did receive documents in the mail from the attorney that was sent to the court. It’s the plaintiffs first set of discovery. And basically putting me in a place of providing documents to the court and admission. This is something I’m not sure I understand. I have 28 days to respond or it will be deemed admission to claims. 

[MalekaiArcher]

45 minutes ago, MalekaiArcher said:

Sounds good. I definitely will do that. I did receive documents in the mail from the attorney that was sent to the court. It’s the plaintiffs first set of discovery. And basically putting me in a place of providing documents to the court and admission. This is something I’m not sure I understand. I have 28 days to respond or it will be deemed admission to claims. 

I have 28 days so July 20th I’ll need to submit an answer. I honestly have no paper trail and don’t even have the same bank account from that far back. But I can’t say lack of information as failure to admit or deny. But I filed my MTC and they have until next Tuesday to respond. Do I just wait I mean Arbitration is something they would need to move forward with due to the nature of this case. If I were to answer can I put Deny on all my answers with the response that I filed my MTC and await judges ruling on the manner? This really threw me. Also in my answer I requested them to provide the burden of proof, why is it coming back to me as the defendant?

[BV80]

1 hour ago, MalekaiArcher said:

I have 28 days so July 20th I’ll need to submit an answer. I honestly have no paper trail and don’t even have the same bank account from that far back. But I can’t say lack of information as failure to admit or deny. But I filed my MTC and they have until next Tuesday to respond. Do I just wait I mean Arbitration is something they would need to move forward with due to the nature of this case. If I were to answer can I put Deny on all my answers with the response that I filed my MTC and await judges ruling on the manner? This really threw me. Also in my answer I requested them to provide the burden of proof, why is it coming back to me as the defendant?

I’m alerting @fisthardcheese.  A MTC alone may not be enough to avoid a default judgment.  You may need to file an answer.  Why can’t you use “lack of information”?
 

[MalekaiArcher]

I filed my Answer to the complaint and MTC the same day. So and in my Answer I requested the court to have plaintiff provide discovery (they bought the debt, they can legally collect the debt, the original contract and that they are within the statute of limitation) also my defenses were Doctrine of Laches, Statue of limitation, not original creditor and mitigation of damages. Tried covering my bases to the best of my knowledge and in my answer I did said not enough information is provided to admit or deny allegations. And in my MTC I had it stamped and turned into court and was told the plaintiff has 14 days to respond or I can file to move for judgement. I also attached the Citibank Arbitration clause the the JDB sent me in the DV letter. And confirmed that I am not being sued in small claims so my motion for arbitration should stand as is. And I can file the move for judgment on 6/29, and don’t have to respond the the plaintiffs set of discovery no later than July 20th. But I’m just wondering if the judge ruled for arbitration am I still required to submit an answer to this Admission claim? I hope @fisthardcheese can provide input I’ve religiously read through all the help he has provided others.

1 hour ago, BV80 said:

I’m alerting @fisthardcheese.  A MTC alone may not be enough to avoid a default judgment.  You may need to file an answer.  Why can’t you use “lack of information”?
 

 

[MalekaiArcher]

1 hour ago, BV80 said:

I’m alerting @fisthardcheese.  A MTC alone may not be enough to avoid a default judgment.  You may need to file an answer.  Why can’t you use “lack of information”?
 

@BV80 also after reading the document they sent I guess I can state lack of information and state that “the information known or reasonably available is insufficient to enable admission or denial” they also want me the production of documents here’s the document. All I have to produce for them is the DV documents they sent me. I don’t know how to even come up with bank statements from 2013. I don’t have the same bank or accounts open and I don’t know why I’m liable to send this documentation.

[nobk4me]

You need to object to all their discovery, like this:  OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

Copy and paste that into the answer for every one of them.  The reason for this is, going too far in litigation by participating in discovery may waive your arb rights.  But you can't just ignore them, especially the admissions, which are deemed admitted if not answered.

[MalekaiArcher]

38 minutes ago, nobk4me said:

You need to object to all their discovery, like this:  OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

Copy and paste that into the answer for every one of them.  The reason for this is, going too far in litigation by participating in discovery may waive your arb rights.  But you can't just ignore them, especially the admissions, which are deemed admitted if not answered.

@nobk4meOH MY GOODNESS THANK YOU FOR THIS! I will type this all into my admission answers. Can I also say this in the production request. According to the laws I don’t have to file anything as far as production to the court but I need to turn in a certificate that I have sent the plaintiff this information. So  for the production request I can just state objection Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum for 1-4? Hope that makes sense. But thank you again you are a life saver I was panicking because I didn’t know they would send me this paperwork. 

[nobk4me]

22 hours ago, MalekaiArcher said:

@nobk4meOH MY GOODNESS THANK YOU FOR THIS! I will type this all into my admission answers. Can I also say this in the production request. According to the laws I don’t have to file anything as far as production to the court but I need to turn in a certificate that I have sent the plaintiff this information. So  for the production request I can just state objection Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum for 1-4? Hope that makes sense. But thank you again you are a life saver I was panicking because I didn’t know they would send me this paperwork. 

Yes, use that objection for everything: interrogatories, admissions, production of documents.

[MalekaiArcher]

On 6/25/2021 at 12:47 PM, nobk4me said:

Yes, use that objection for everything: interrogatories, admissions, production of documents.

Thank you! @nobk4me

I wanted to update. I just received an email from Cavalry’s attorney saying Calvary wanted to offer a $4800 settlement after finding the Arbitration motion. Offer expires 7/7. But I will be sending in my answer to their discovery along with filing “submit for decision” on 7/2. I still cannot feasibly make that payment. Should I just hold strong and see if they will fold? I would be will to settle over going through with arbitration all together. But I have everything in line to go forward with Arbitration once granted. Just not sure if they just showed me some form of weakness in not wanting to go to arbitration. And if they are hoping I’ll fold first. 

[nobk4me]

If you can't afford their settlement offer (nor a judgment), then you really have no choice but to hold strong and keep going.   I think, as it gets more expensive for them in arb, the more willing they will be to offer you a settlement you can afford.

[MalekaiArcher]

1 hour ago, nobk4me said:

If you can't afford their settlement offer (nor a judgment), then you really have no choice but to hold strong and keep going.   I think, as it gets more expensive for them in arb, the more willing they will be to offer you a settlement you can afford.

@nobk4me I’m hoping I can hold strong for either dismissal or lower settlement. I’m still trying to figure out how much they would be charged in arbitration fees and if the cost will outweigh the return if they were to win in arbitration. 

[Bulldoger]

FYI In my case They started with 75% then 50% then we settled at 25% 4 days before hearing on motion. Wasn't Calvary though but another JDB. 

[MalekaiArcher]

@Bulldogerthank you for this! That’s what it is seeming like this JDB is doing. The amount is $9208 and they wanted a little more than 75% and now a little more than 50% with arbitration on the horizon. I’m going to stick to my guns and see if they will go down to 25% or lower ideally. 

[Bulldoger]

When they offered the 75% I countered with lump sum of 25% good till hearing date. I just stuck to that offer regardless of how the attorney argued that they would follow to Arbitration and I would have to pay their fees when I lose and I would lose.  That it's legal to buy debt, they had all the paperwork needed to win etc.  If I had a winning case why not just win in court. I had an argument he couldn't overcome, that it was best for my family's health to handle case in arbitration via zoom or telephone because of Covid-19. 

[MalekaiArcher]

@Bulldoger That is smart and good on you for sticking to your guns. I just hate that it seems like JDB file a complaint with court to scare you into paying them but don’t actually want to go to court or even want to do arbitration and say they have everything to prove you owe them but have little to back those claims.