topic Re: Being sued by Cavalry - served papers today – need advice please in Rebuilding Your Credit

Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 17:35:38 GMT

Ok so it's been a while since I've actually posted, because I've basically been in the garden with the current rebuilding cards I have, but the day has come that I am officially being sued in civil court over one of my charge-off/collection accounts. It's a $4300+ account formerly with Capital One and now owned by Cavalry Portfolio blah blah blah. I've known this might be coming for some time, but I've been trying to wait them out with no contact because the statute of limitations in my state would have been up this coming October. A couple of things:

1.) My stepfather was the one served today, while I wasn't home, yet the packet is marked that I was served in person. He said the sheriff basically shrugged his shoulders and said "OK, I guess that's good enough" when he told him he was my stepdad... but is that good enough?

2.) As of this moment, my only source of income is SSDI disability, so paying them to settle the debt hasn't really been an option. I've been trying to wait out Cavalry until after the statute of limitations when I could have dictated terms.

3.) I have a copy of a debt verification letter that I got from this forum, because I know that would normally be the first thing I'm supposed to do at this point. The thing is, though, is the packet includes what looks like a bunch of Cap1 computer screenshots showing details about the account. Is that enough on their part to prove the debt? They have to produce something with my signature on it? Should I go ahead and send them a debt verification letter?

Any advice would be greatly appreciated. It says I've got 20 days to respond, but I really want to make sure I have my proverbial ducks in a row. Thanks in advance!

Re: Being sued by Cavalry - served papers today – need advice please

RobertEG — Fri, 13 Jan 2017 18:24:20 GMT

1. What is required to establish service varies by state law/rules of civil procedure. Adults residing at the address are often acceptable.

Bottom line is that you have notice, so I would be sure to submit the required response to the court.

Consult an attorney should you consider challenging the service in your response as being inadequate.

It may be a bit tough to challenge the adequacy of service if you acknowledge personal receipt on the day papers were served.

2. Whether or not your income is capable of garnishment can become an issue if/when they additionally pursue a separate motion to attach assets ("writ of satisfaction").

At this point, the primary issue for trial is whether the debt is legit, and not whether your income can ultimately be garnished as a means to satisfy any judgment that may be rendered.

That is an issue to be reserved for if/when they seek an order of garnishment.

Consult an attorney if you wish to include ability to pay in your response to the civil complaint.

However, the main purpose of a response at this point is to notice the court as to whether you are going to contest the civil complaint.

3. Response by a debt collector to a debt validation request relates to whether the debt collector is or will be placed under a cease collection bar.

It is a debt collection practices matter, of which the adequacy of their response does not necessarily require legal prooofs of legitimacy of the debt.

Civil trial is all about proofs, not debt collection practices issues, and has standards set by the rules of evidence, not simply statements of verification obtained by a debt collector.

Again, you should consult an attorney regarding the standards of proof at trial, which are not the same as the standard for verification of a debt validation request under the FDCPA.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 18:46:32 GMT

It has been my understanding that asking them to verify the debt freezes all collection efforts and court stuff, while they produce something with my signature on it signifying I agreed to pay Cap1 back in the day. Is that not correct?

Re: Being sued by Cavalry - served papers today – need advice please

RobertEG — Fri, 13 Jan 2017 19:09:08 GMT

Was your DV request timely (i.e., was it sent either prior to any dunning notice, or within 30 days after they sent a dunning notice) ?

Under FDCPA 809(b), a timely DV request requires the debt collector to "cease collection on the debt" until they first provide verification.

Legal proofs are not generally considered necessary to support a statement of verification, and whether or not a cease collection bar extends to the initiation of civil action is a matter of case law interpretation that varies by jurisdiction. FDCPA 809(b) does not specifically reference the bringing of civil action as a barred debt collection activity.

It would depend upon relevant case law in your jurisdiction.

If you wish to assert that their civil action is improper in view of a pending and unfilled, timely request for debt validation, that is something to be included in your response to the court.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 19:48:17 GMT

As to the question about the Dunning notice, I received an initial letter from the law office filing against me all the way back in December 2015. It was a regular letter, nothing I signed for or there is proof I ever received. After that, I haven't heard anything in the proceeding 14 months, and I have been following advice from this forum not to contact the creditor to avoid resetting the statute of limitations clock.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 20:23:46 GMT

Is it a valid debt? Did you have credit with Capital One at that time?

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 20:45:36 GMT

I did. The debt is valid in principle. To be clear, I'm not trying to be shady; i'm trying to buy time. I would like to negotiate something, but if I'm going to pay at all it's going to be a lot less than what they want and it – in the long run – isn't going to remove the knock on my credit anyway, so there's no real incentive.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Fri, 13 Jan 2017 20:47:14 GMT

The credit card with them at that time was issued before I left work on SSDI disability.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 03:04:51 GMT

My biggest concern at this point is trying to figure out how to move forward and respond, but I'm trying to avoid involving an attorney. Doing so would just cost me a bunch of money, and if I had $1000 to hand to an attorney then I would just offer to pay that on the debt itself.

What I need is to be able to maybe offer a settlement, but I don't know at this point what I'm even supposed to do to answer the summons. All I know is I have 20 days. Do I include a settlement offer in my response letter to the magistrate court? What in the world would the letter even consist of if not either offering a settlement or asking for verification?

Re: Being sued by Cavalry - served papers today – need advice please

fltireguy — Sat, 14 Jan 2017 03:15:58 GMT

You could probably call the CA and see if you could work out a settlement... in sure that they would still be open to a resolution at this point

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 03:54:14 GMT

That's what I was thinking. At this point, I'm just trying not to get a judgment on my record. Anybody have any experience settling things like this? We all know they purchase these debts for pennies on the dollar, and they can't legally garnish SSDI payments. Pretty much, it's a choice for them between getting something or getting nothing at all.

Re: Being sued by Cavalry - served papers today – need advice please

Coolermaster007 — Sat, 14 Jan 2017 06:03:19 GMT

Option 1 Take the judgement like a man for countless years on your report that = your credit & dog s**t will be the exact same thing.

Option 2 Give then a call make payment plans ask to keep this off the courts & make sure you dont break the payment agreement because it can reset your SOL

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 06:51:52 GMT

Yeah, that's what I figured my options were. So, should I go straight to them and not the court? I mean, I have to answer the summons, right?

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 11:16:42 GMT

A lot of people will probably snarl at this.

The OP admitted the debt is theirs but there is still procedure one must go threw to legally suit someone for it so:

The sheriff or anyone trying to serve someone simply can't leave the paper work with a family member unless the family member is over 18 and they ACCEPT the documentation on your behalf. Sounds like the sheriff just left it with your grand father without giving him a choice. This alone nulls the serve, the sheriff will try to fight you on this by swearing he served you personally. Oh there will be some lying and you'll have to prove the sheriff is full of it.

If the report says you was served in person then prove you weren't at the residence at the time of the serving. Sworn testimony maybe from your step dad saying the sheriff left it with him without the option to accept on your behalf or receipt's of your location around the time of serving. You'll have to motion this and take up with a judge of course, explaining this to the credit collector will get you nowhere. Also the person accepting the serve must stay there, if your step father has another address on his ID at the time of serve then he legally can't accept any documentation your behalf.

This is where people really snarl! This is all legal people!

After you get that serving voided, change your ID to a friends address which will make this your new residence. You only need to sleep there one night out of 30 days for this to be legal. By the time they figure out you're new residency it will be past your states statue of limitations for the debt and then just switch your ID back to your old residency. Don't do a mail switch to the new residency! Now from the old residency If mail looks like a bill collection then have the post office return the letter to the creditor. That's legal, even though you receieved the bill and it's yours you now have the option to send it back because it states the wrong address on the letter.

Remember they must serve you at your current residency, so move your residency on paper. Best way of switching residency is by switching the address on your ID. If they say they served you again then just go to court and show them your ID and address and say they couldn't have served you because you don't stay there. For someone to accept the serve on your behalf you still must reside there!

People LEGALLY beat the system all the time because the system has no problem ILLEGALLY beating you. Goodluck and make sure people know never accept any documents on your behalf.

Re: Being sued by Cavalry - served papers today – need advice please

RobertEG — Sat, 14 Jan 2017 18:59:05 GMT

The scenario is not one of the defendant being prejuduced by not having received the papers based on lack of proper service, as it is acknowledged that the papers were received.

I would not recommmend pursuing a legal assertion of lack of service when the party admits receipt and there is no delay that prejudices their response.

The admission of personal receipt by the defendant may result in the court accepting the service notwithstanding what was agreed by the party who accepted the papers on behalf of the defendant.

I would move on to the merits of the case by filing a response and making any settlement offers that are considered appropriate.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 21:13:35 GMT

So, the question is what and how to offer settlement? Has anyone ever successfully low-balled Cavalry? I feel like it's a point in my favor that I can prove my only income is SSDI, which is ungarnishable. They are even in the process of writing off all of my student loans. So, it's essentially a choice for them to agree to take something from me or get nothing at all, and we all know they purchase these debts for pennies on the dollar anyway.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sat, 14 Jan 2017 22:45:16 GMT

I've also seen others on this forum having luck basically getting rid of Calvary by issuing DV letters. Included in the paperwork delivered to me are obvious computer screenshots of them having received my account information from Cap1, but there's absolutely nothing resembling a member agreement with my signature on it.

Shouldn't they have to produce that in order to sue me? Shouldn't all of that, packaged along with the fact that I can prove my only income comes from SSDI disability that is ungarnishable and they are even writing off my student loans in excess of $100k for total and permanent disability, represent a pretty strong case for them to back off?

To be clear, my interests revolve around dragging things out to make it more likely they will just go away or accept a lowball settlement if I do pay them anything at all? After all, we are talking about a $4300+ debt they likely purchased for $430 or maybe less and have no hope of actually collecting a nickel, even if they do get a judgment against me, unless they are willing to come to an agreement with me.

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sun, 15 Jan 2017 00:09:04 GMT

Forgot to also mention that I'm about 75% sure this was originally an Orchard Bank credit card that sold out to Cap1. What are the odds they can actually satisfy verification?

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sun, 15 Jan 2017 00:49:02 GMT

Are you worried about your income or assets? if it's income a bill collector cannot garnish your Social Security disability benefits -- neither SSDI (disability insurance) or SSI (Supplemental Security Income). Your disability income is exempt from creditors, Except for overpayment of benefits,back taxes or defaulted student loan payments as well as child support

Re: Being sued by Cavalry - served papers today – need advice please

Anonymous — Sun, 15 Jan 2017 01:10:48 GMT

Right. But I would still like to get it off my credit report and not have it hanging over my head if something were to change income-wise in the future. Don't want it hanging around, adversely affecting being able to trade in my van in a couple of years, etc.. respect assets, I've got maybe a couple hundred bucks saved in the bank. Not much. Enough to offer some sort of small settlement, but not to pay in full or even 50%. Just trying to get the best deal possible.