Preliminary Steps - Inevitable Lawsuit Forthcoming - Cavalry Portfolio Svc - Citibank Account, Oregon

[HueyPilot]

Brief Info:

Received several collection calls from various collection contractors working for either OC or Cavalry.  Called me at work so I blew them off. Wrong thing but history now.  All three bureaus show in collection Calvary Portfolio Service.  Sent Debt Validation Request and received usual convincing but not complete package. DV might have been premature but now I do have their attention. Planning on sending Dispute and Denial of Debt to Cavalry as well as the three bureaus. Will pretty much posture me for pending law suit. No service to date however have received a lot of hang-up calls. 

 

Questions:

Does anyone know who the law firm(s) are that are used in Oregon for Cavalry Portfolio Service on their Citibank purchase/forward flow document lawsuits. I want to look up some caselaw in preparation for possible pending law suit. Same attorneys may be registered in Washington State so that is also a possibility. 

Oregon has mandatory court appointed arbitration (Kangaroo Court) so I plan on loosing at that and winning on dismissal for "Trial de novo" in real court. I don't think Cavalry will spring for attorney retainers and additional charges for 300 plus pages of documents to be answered twice. Cost of flying in witnesses, fees, preparation of trial documents and billing hours will probably sum more than $50,000 to 80,000 dollars. I can file as an indigent with no cash outlay as I am on social security. So does anyone have any Oregon caselaw supporting wins against any JDB's. 

 

 

[Clydesmom]

1 hour ago, HueyPilot said:

Does anyone know who the law firm(s) are that are used in Oregon for Cavalry Portfolio Service on their Citibank purchase/forward flow document lawsuits. I want to look up some caselaw in preparation for possible pending law suit. Same attorneys may be registered in Washington State so that is also a possibility. 

Go to the online docket for the court for your county.  A quick search of all Cavalry Portfolio Service cases as Plaintiff would reveal who the law firm(s) are.

1 hour ago, HueyPilot said:

I don't think Cavalry will spring for attorney retainers and additional charges for 300 plus pages of documents to be answered twice.

They won't have to spring twice at all.  The files are all digital now unlike in the post recession era when they were not and JDBs would not buy the supporting documentation.  

1 hour ago, HueyPilot said:

Cost of flying in witnesses, fees, preparation of trial documents and billing hours will probably sum more than $50,000 to 80,000 dollars.

Flying in witnesses?  LMAO.  No.  Not in the covid era.  They will be given for phone testimony if they are even needed and no matter how much you object it will be granted.  In fact your hearing very likely won't be in person but via ZOOM as well.  The costs?  Not even close.  JDBs like that hire a law firm or several on a lump sum retainer for a fixed number of cases.  That includes those like yours where a defendant actually answers the suit and shows up.  They bank on the 95% of default judgments off setting any small added expense in actually going to trial on less than 5% of those that do answer.  As for trial doc prep:  they do so many of these cases there isn't hours and hours of prep any more.  There is no reason to re-invent the wheel simply for your case.  They have others and will cut and paste your details into a standard case document and file it.  2-3 hours tops.  $50-80,000?  Not a chance.  Even better:  the expense gets passed on to you when you lose so they often are not the least bit concerned with the costs involved but it won't get anywhere near the figure you quoted.  Maybe $10k at most and that is a stretch.

Some points to consider since you have not been around in a long time apparently:  business records laws have been relaxed starting at the Federal level and filtering down.  It takes way less in an affidavit for a JDB to use them as evidence than it did a decade ago.  Records are readily available in the digital era.  The requirement for live witnesses greatly diminished in the past decade and in the covid era completely dissolved.  It is easily accomplished via ZOOM or phone and the court will jump right to it.  Since it is live you have the opportunity to question them and therefore are not prejudiced by either method.  Arbitration remains a viable option but even that is losing its threat.  PRA and at least one other JDB have started following in and we have at least 2 cases where PRA went all the way to the end.  Trial de novo has its merits but in response to frivolous appeals many states now require an appeal bond in the amount of the judgment verdict.  You need to check carefully and find out if OR requires that because if you cannot post that amount within 30 days then you do not get to appeal trial denovo.  

As for case law for OR.  I don't know that we have any OR residents that have actually won but a search of the threads should reveal more data on that.

[HueyPilot]

Thanks for the input.

The records thing was my document prep response costs; Answers, discovery, motions, admin & various letters as part of the legal process whether filed electronically or physically costs time and money for the plaintiffs lawyer, such as man hours, prep and filing fees. Most JDB's retain a local law suit mill attorney to do the local process at a flat rate. (I've read Midland advances $1200 per case to retain their favorite low life attorney for actual law suits that go beyond the no response automatic default judgement) Locally the Eugene, Ore attorney, Gordon, Aylworth & Tami filed over 80,000 lawsuits for Midland and others in 2015 and that's just in Oregon & Washington Courts. Less than 5% actually go to defend themselves in court. Additionally Johnson/Mack and others go nuts around here.

The Trial de novo, or do over is the second step to get past the mandatory court appointed arbitration and into an actual court where a real judge enforces actual trial procedure. You can seldom win in Oregon mandatory arbitration (kangaroo court) so knowing that and generating documents costs additional money paid out for the JDB. 

In all reality it's my internet defense against their cookie cutter lawsuit. It's all about time and money. The scales of law balance those objectives. I've got the time but no money so I'm trying move the fulcrum, or nudge it a little, to over balance things in my favor. 

[nobk4me]

The best thing to try is private contractual arbitration, in either JAMS or AAA.  Whichever is in the contract (cardmember agreement).  If it lists both, go with JAMS.

Note this is not the same as the court-sponsored arbitration you mention.  The point of private arb is the high costs to the creditor.

Best info on arb is here:

 

[HueyPilot]

Oregon is a very greedy state. They try to maximize profits on every government and municipal activity. The courts are overloaded and in response, court costs and fees have been accelerated to new highs. Arbitration is mandated to court appointed lawyers, (ADR) alternate dispute resolution. $300.00 - $600.00 is charged to both Plaintiff & Defendant. The arbitrator gets a portion of that. The court gets a nice percentage of those fees. The attorneys appointed for arbitrators are not necessarily the most successful on their own so rely on court appointments for funding their payroll. You can guess where there loyalties lie. Private arbitration is frowned on and the Courts resist that anywhere possible. No fees or percentage goes to the County Court for private ADR. Fees and Court mandatory arbitration expense alone will amount to around $1500 per defendant. Nice revenue stream for the hundreds of thousands of debt litigations filed in the Courts. 

I have not been on the CIC forum for years but even back in the days when I was active I heard a lot of reference to JAMS/AAA but little about the outcomes and wins if any from that defense process. With JAMS/AAA on the Citibank Agreement the Court will still be reluctant. It will be a fight to get them to move to private arbitration but it's doable. 

JAMS/AAA - ADR

Convince me - Educate me. 

Main concern. If I lose in JAMS/AAA will I get an opportunity for trial de novo in regular court or will the court consider that ruling final with no rights of appeal. 

 

 

 

[Clydesmom]

1 hour ago, HueyPilot said:

With JAMS/AAA on the Citibank Agreement the Court will still be reluctant. It will be a fight to get them to move to private arbitration but it's doable. 

Your fight could be even bigger.  CITI has a carve out for arbitration in debt cases in small claims court.  If they file in small claims court you can't compel arbitration.

1 hour ago, HueyPilot said:

Main concern. If I lose in JAMS/AAA will I get an opportunity for trial de novo in regular court or will the court consider that ruling final with no rights of appeal. 

You give up the right to trial de novo if you go to private arbitration in either forum.  You would have to appeal through the arbitration forum.  If you lose at both then all Cavalry has to do is take the decision to the court and have it confirmed as a judgment.

[HueyPilot]

JAMS is kind of interesting.

The fee for the Plaintiff is $1750 and $250 for the defendant. The equity scale moves to the Defendant on the initial costs. What's the likelihood of Calvary's council moving for dismissal. The debt is only $5K however potential front loaded fees for council retention and JAMS has to be close to half of that. I haven't ticked these guys off yet nor have I been served process. What has been the trend for success on the forum for these cases. Any guess on percentage. 

Is the JAMS ADR administrative process similar to standard legal process with summons & complaints, answers & discovery, motions & rebuttals. I've had the impression it's mostly an automatic loss for the defendant only a short version with verbal discussion, a coin toss and automatic rule for the plaintiff. (Plaintiff pays the most money) 

 

With the limits of small claims amounts toping out at $10,000 are we seeing most of these credit card law suits going that route with the JDB & contract lawyer program.  I didn't think attorneys are allowed in small claims?

[Clydesmom]

47 minutes ago, HueyPilot said:

What has been the trend for success on the forum for these cases.

You really are not understanding the use of arbitration.  Because of the expense of JAMS most JDBs drop it after a successful MTC.  Typically when they get hit with the JAMS expenses they ask the consumer what they want to let it go and the answer is "mutual walk away" and they usually agree.  The goal is not to actually arbitrate the case.

49 minutes ago, HueyPilot said:

've had the impression it's mostly an automatic loss for the defendant only a short version with verbal discussion, a coin toss and automatic rule for the plaintiff.

A bad case in court is a bad case in arbitration.

51 minutes ago, HueyPilot said:

I didn't think attorneys are allowed in small claims?

Depends on the state.  Some do some don't.  DO NOT assume.  You need to start researching how OR handles these cases.  Look at your online docket and see how Cavalry has been filing the cases.

[HueyPilot]

I get it on the JAMS arbitration with the expense challenges. I see how that gets a dismissal. I don't see a walk away for $1750 bucks. I may be wrong but like you say a bad case in court is a bad case in arbitration. I'm good at answers, motions and paperwork. The MTC to Compel private arbitration via JAMS is familiar and easy enough to file. I can do that.  What I'm careful about and majorly concerned is the whom the debt buyers attorney might be. I took a lot of money out of the pockets of three law firms years ago and there is the possibility of a major vendetta. Thus the questions about procedures. You are helping me prepare. I have a great deal of respect for the local debt buyers attorneys. They are good at what they do -  and so am I. 

I truly appreciate your comments.

 

 

[HueyPilot]

Account stated and breech of contract are two major contentions within most every lawsuit summons/complaint requiring an answer. 

If I claim I owe not one penny and never did then send it to the JDB  and additionally dispute at all three bureaus will I have adequately credited on the front side that I don't claim this alleged transferred debt. Obviously if you don't deny the debt then at some point it might be legally construed that I agree with their terms. I have forwarded a DV but have not been sued. I might be kicking a hornets nest and posturing for a fight, however the sooner the lawsuit is initiated the sooner I can get into JAMS or AAA.

DENY, DENY DENY is the mantra. Any good ideas on preliminary strategy's.

 

[BV80]

54 minutes ago, HueyPilot said:

Account stated and breech of contract are two major contentions within most every lawsuit summons/complaint requiring an answer. 

If I claim I owe not one penny and never did then send it to the JDB  and additionally dispute at all three bureaus will I have adequately credited on the front side that I don't claim this alleged transferred debt. Obviously if you don't deny the debt then at some point it might be legally construed that I agree with their terms. I have forwarded a DV but have not been sued. I might be kicking a hornets nest and posturing for a fight, however the sooner the lawsuit is initiated the sooner I can get into JAMS or AAA.

DENY, DENY DENY is the mantra. Any good ideas on preliminary strategy's.

 

As you know, the purpose of a MTC arbitration after being sued is to hopefully get a JDB to go away.  Would the possible lawsuit be filed in small claims court?  If so, does the applicable arbitration provision contain a small claims exclusion?

[HueyPilot]

Interesting comment and indeed a concern. I have to be prepared for that contingency.  Claims for $750 - $10,000 can be filed in either small claims or civil court. Mine is right in the middle. However here in Oregon attorneys are not permitted in small claims and I will have to research to confirm if motions to compel arbitration are possible. The civil court dockets are loaded and court appointed arbitration is mandatory and that is a major revenue source for the municipal system and outsourcing to court appointed lawyers for mandatory arbitration handles a lot more cases. 

 

If anyone has any Oregon experience with small claims court on this issue I would appreciate their input.

[nobk4me]

I'm not in Oregon, but if attorneys are not permitted in small claims court, then a creditor (bank or JDB) can't use small claims court.  These are corporations, which need to be represented by an attorney.  Only an individual, real human person can go pro se, without an attorney.

[HueyPilot]

These are very good points. An Oregon corporation is required to be represented by an attorney in any lawsuit they initiate. See http://www.osbar.org/_docs/upl/advisoryopinions/uplno2013-02.pdf

 

The givith:

A majority owner of corporation, president of association, chairman of nonprofit, trustee of trust, or partner in a partnership, who UPL Advisory Opinion No 2013-2 2 2013 attempts to represent his or her respective entity in state or federal court would likely be engaging in the unlawful practice of law. ORS 9.160; see Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977).

 

The takeith away:

II. Question No. 2 (Small Claims Court Exception) A majority owner of corporation, president of association, chairman of nonprofit, trustee of trust, or partner in a partnership, would likely be permitted to represent his or her respective entity as its legal representative in small claims court. Non-lawyers may represent entities of which they are the legal representative in the small claims department of an Oregon circuit or justice court. See ORS 46.415(5), ORS 55.090(2).

[BV80]

32 minutes ago, HueyPilot said:

II. Question No. 2 (Small Claims Court Exception) A majority owner of corporation, president of association, chairman of nonprofit, trustee of trust, or partner in a partnership, would likely be permitted to represent his or her respective entity as its legal representative in small claims court. Non-lawyers may represent entities of which they are the legal representative in the small claims department of an Oregon circuit or justice court. See ORS 46.415(5), ORS 55.090(2).

JDBs hire attorneys to represent them.  I can’t imagine a majority owner of a JDB or a legal representative showing up in place of an attorney who was hired.  The JDBs want their legal fees paid.

[nobk4me]

23 hours ago, BV80 said:

JDBs hire attorneys to represent them.  I can’t imagine a majority owner of a JDB or a legal representative showing up in place of an attorney who was hired.  The JDBs want their legal fees paid.

Yes, I can see that exception being used for some small corporation, LLC, non-profit, HOA, etc.  The JDBs probably have contracts with their law firms, and are required to use their lawyers.  Plus I can't see a JDB, that wants to win their case, sending a non-lawyer into court.  Especially when they have the bucks to hire attorneys.  It's folks like us, who don't have the bucks, who go pro se.

[HueyPilot]

MTC - Motion to Compel Private Arbitration Card Agreement Attachment Oregon Courts

How important is it to attach the Cardholder Agreement from the actual date the alleged Credit Card was issued. (14 year ago) These are usually a little challenging to obtain. Will the City/Sears 2021 card agreement calling for AAA Private Arbitration work considering the dates the JDB Cavalry purchased alleged accounts was 2021.  No action taken yet but suspect could happen any time. Moreover there exists an online Citibank general card agreement allowing both AAA and JAMS. My understanding is JAMS is preferred. 

 

[BV80]

1 hour ago, HueyPilot said:

MTC - Motion to Compel Private Arbitration Card Agreement Attachment Oregon Courts

How important is it to attach the Cardholder Agreement from the actual date the alleged Credit Card was issued. (14 year ago) These are usually a little challenging to obtain. Will the City/Sears 2021 card agreement calling for AAA Private Arbitration work considering the dates the JDB Cavalry purchased alleged accounts was 2021.  No action taken yet but suspect could happen any time. Moreover there exists an online Citibank general card agreement allowing both AAA and JAMS. My understanding is JAMS is preferred. 

 

Credit card agreements are amended from time.  They state that our use of the account constitutes our acceptance of the terms and conditions.  Therefore, the applicable agreement would be the one that was in effect when the account went into default. That would have been the last one you could have accepted by using the account.

[YoRocky]

On 8/10/2021 at 5:47 PM, HueyPilot said:

DENY, DENY DENY is the mantra. Any good ideas on preliminary strategy's.

 

Actually the better mantra is 'can not admit nor deny'. This is the safest legal answer outside of no answer at all (right to remain silent)

if someone claims you owe them $100, and show you no evidence, you can not admit nor deny due to insufficient evidence.

If they show you the evidence, then you have something you can attack. a statement with an amount and your name on it is not the end all. its just the beginning.

you can ask for an accounting to reveal errors. while any part (or all) of an amount is in dispute, the case can not move forward. it is a material fact that must be discovered and proven. 

if they can not prove one part of their claim the entire cause of action will fail. and that means you win

make them prove it every step of the way. then attack the evidence and the affidavidts. 

remember they have to prove their case. you have to assert your constitutional right to demand the evidence and cross examine it. thats the point of due process and discovery.

 

[BackFromTheDebt]

1 hour ago, YoRocky said:

Actually the better mantra is 'can not admit nor deny'. This is the safest legal answer outside of no answer at all (right to remain silent)

if someone claims you owe them $100, and show you no evidence, you can not admit nor deny due to insufficient evidence.

If they show you the evidence, then you have something you can attack. a statement with an amount and your name on it is not the end all. its just the beginning.

you can ask for an accounting to reveal errors. while any part (or all) of an amount is in dispute, the case can not move forward. it is a material fact that must be discovered and proven. 

if they can not prove one part of their claim the entire cause of action will fail. and that means you win

make them prove it every step of the way. then attack the evidence and the affidavidts. 

remember they have to prove their case. you have to assert your constitutional right to demand the evidence and cross examine it. thats the point of due process and discovery.

 

That is horrible advice and can lead to a very quick defeat by a judgment on the pleadings. 
 

Any allegation not denied is deemed admitted.  
 

I tried the ‘can not admit nor deny’ route once.  It did not go well for me.  

[BV80]

@HueyPilot

Be careful about engaging in discovery if arbitration is your goal.  Engaging in litigation can waive one’s right to arbitrate.  You would need to research your court rulings to determine how much involvement in litigation might waive that right.  

[BV80]

1 hour ago, BackFromTheDebt said:

That is horrible advice and can lead to a very quick defeat by a judgment on the pleadings. 
 

Any allegation not denied is deemed admitted.  
 

I tried the ‘can not admit nor deny’ route once.  It did not go well for me.  

In the event one uses “cannot admit or deny”, it should followed by “and, therefore, denies”.

[BackFromTheDebt]

46 minutes ago, BV80 said:

In the event one uses “cannot admit or deny”, it should followed by “and, therefore, denies”.

THAT is the key.  
 

I once had a foreclosure where I didn’t know that last part.  I would have lost anyway, but I essentially handed them a victory by not putting in “and therefore, denies”.  

[BV80]

5 minutes ago, BackFromTheDebt said:

THAT is the key.  
 

I once had a foreclosure where I didn’t know that last part.  I would have lost anyway, but I essentially handed them a victory by not putting in “and therefore, denies”.  

I’m so sorry you went through that.  

[YoRocky]

2 hours ago, BV80 said:

In the event one uses “cannot admit or deny”, it should followed by “and, therefore, denies”.

good point. in addition, there can be a preamble that covers all general objections and is subject to change based on new information received in the future.

lawyers are great at adding all kind of wiggle room