topic Re: Calvary SPV - Notified I’m Being Sued Via Text in Rebuilding Your Credit

Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Mon, 24 Sep 2018 23:22:39 GMT

I received a text message this afternoon from a debt arbitrator in San Diego, CA that a lawsuit had been filed against me in court by Calvary SVP. I went to the court website and in fact there is a case. I have no idea what this is for? I no longer live in California (where it has been filed) and I didn’t want to make any phone calls to the attorney listed as hired by Calvary. I have no collections on my credit report from Calvary... What should I do first? Speak to an attorney? I haven’t been served, or anything... this was completely out of the blue!

Thanks!

Re: Calvary SPV - Notified I’m Being Sued Via Text

gdale6 — Tue, 25 Sep 2018 01:55:14 GMT

@MedRep86 wrote:
I received a text message this afternoon from a debt arbitrator in San Diego, CA that a lawsuit had been filed against me in court by Calvary SVP. I went to the court website and in fact there is a case. I have no idea what this is for? I no longer live in California (where it has been filed) and I didn’t want to make any phone calls to the attorney listed as hired by Calvary. I have no collections on my credit report from Calvary... What should I do first? Speak to an attorney? I haven’t been served, or anything... this was completely out of the blue!

Thanks!

First thing to do is determine if its still with the SOL. SOLs that can be used are where you live now, did live or where the creditor is incorporated at. If you have no idea what its for I would see about getting some info from the court on it. Under no circumstances give your current address to anyone.

Re: Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Tue, 25 Sep 2018 03:51:29 GMT

Rhonda,

Thank you for responding! I will call the court to obtain information regarding. My real concerns are:

1) Can I be sued without being served?

2) Can a judgement be filed / awarded in a state I do not reside?

3) Should I go radio silent and not bring any unwanted attention my way, assuming the debt could be near SOL? — With that, my fear is doing nothing will result in me having a judgment levied against me.

When I call the court in California, should I advise I no longer live in the state? Makes me wonder how they managed to say I was served?? I haven’t lived there in almost 3 years.

Any insight I’d greatly appreciate!

Re: Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Tue, 25 Sep 2018 20:52:36 GMT

I called the courthouse in CA and provided the case number. Only thing they would tell me is a case has been filed. I looked up the case number online & it’s there, but my last name is spelled wrong. At this point, I’m not sure what my next step should be?

Re: Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Wed, 26 Sep 2018 02:13:23 GMT

I have retained an attorney & will update as the process plays out.

Re: Calvary SPV - Notified I’m Being Sued Via Text

bass_playr — Wed, 26 Sep 2018 16:39:45 GMT

At this point, it's possible that you just wasted some money. I'll explain:

First step is to address the fact that they filed against you in a state you no longer live in. While they technically can sue you in that jurisdiction according to the FDCPA, you are still not subject to that court's jurisdiction as a matter of law because you are not physically located within that jurisdiction. The easy way to address that is to motion to dismiss the case due to improper venue, because the court lacks jurisdiction over you as a potential litigant. It's not necessarily a bad thing that you retained an attorney for that, but I fear it may cost you unnecessary money, at least for that portion of it.

Second, there is a techicality that does permit the suit to go forward without you ever being served--it works in one of two ways. Being that you're dealing with Calvary, there's a possibility of "sewer service". That basically means that the process server lies to the court, claiming that they personally served you when they did not. Generally, they claim you were personally served at an old address--or one that you never even lived at--and the summons actually ends up in the garbage. The second way is service by publication, where they tell the court that they tried to locate you for service but were unable to find you. The court then often allows them to publish notice of the lawsuit in a local newspaper, and then you would be considered sufficiently served.

You should have zero trouble getting a copy of all documents regarding this case from the court clerk's office. By law they are required to make these available to you---there is likely a cost, for example, my local court clerks charge $1 per page. What county is this lawsuit filed in? Sometimes, you can view the documents online. The documents you are looking for are the complaint and the proof of service. The complaint should detail the actual debt they are trying to sue you over, and you can use that to possibly determine the SOL. The proof of service is important because it will show how exactly they claimed to have served you---and this is key. Since you have not lived in CA for at least 3 years now, I would love to see how they claimed you were served. If the POS says that you were personally served, it should list an address where you were personally served. Please let us know once you see that POS what it says about this. If you were "personally served" according to the POS, then my very first move would be to pursue a claim against them for falsifying a court document and lying to the court. In that process, you simply provide proof to the court that you were residing in a different state for years, and clearly you were not at that address when they claimed to have served you.

Calvary and others use these methods because most people don't understand the law or their rights. You often can pursue a claim against the process server's bond---they are usually required to file a bond with the state to become a process server. But you can also file a suit of your own against Calvary, potentially, as well.

I will tell you this as well---as someone who has personally performed locating and skip tracing work in the last two decades, unless you moved out of state and into a cave, it's generally rather trouble-free nowadays to locate a person, given the right info. They claim to have control of a debt that they say is attached to you, so they would have your SSN, for example. My point? Simple---they most likely could have located your actual location fairly easily. Sewer service is done as a means to expedite the process, and because even when people learn that they broke laws, most will still never fight back. Or, the FDCPA's one year SOL has already passed. You have a unique chance to fight back that most won't get.

As I mentioned, that debt collector has a history of things like this:

https://nahoumlaw.com/cavalry-portfolio-services-default-judgment-vacated-dismissed-case-sewer-service/

Re: Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Wed, 26 Sep 2018 22:09:39 GMT

Thank you for such a detailed and thorough explanation!

I spoke to an attorney here in PA initially, obviously he could do nothing more than counsel me, but the reason I retained an attorney in CA is due to what he called, “A clear FDCPA violation.”

If I can prove this violation, which I believe we can. According to attorney, I can essentially void the debt completely - so it can not be collected, or used against me in the future. I can also file suit against Calvary & have my legal fees paid on their dime.

I feel like this is a good opportunity and I have to be aggressive with it, to make it go away.. I’m confident this was filed & they expected to win a default judgement against me - with no hassle.

Well, they are wrong... feel pretty confident I can win & will post updates as I proceed.

Again, thank you all for responding and offering wisdom to me as I straighten my financial woes out

Re: Calvary SPV - Notified I’m Being Sued Via Text

Brian_Earl_Spilner — Wed, 26 Sep 2018 22:18:22 GMT

What is the clear violation that will get the case dismissed with prejudice?

Re: Calvary SPV - Notified I’m Being Sued Via Text

MedRep86 — Wed, 26 Sep 2018 22:41:06 GMT

Violation of the FDCPA venue provision.

Re: Calvary SPV - Notified I’m Being Sued Via Text

Brian_Earl_Spilner — Thu, 27 Sep 2018 02:34:06 GMT

Ah, so you know what they're suing you for now. Because they have the right to sue in your location or wherever the contract was started, meaning if you opened the account in California, they can sue you in California.

Re: Calvary SPV - Notified I’m Being Sued Via Text

Anonymous — Thu, 27 Sep 2018 03:56:13 GMT

Following
Curious how it will turn out.
GL OP!

Re: Calvary SPV - Notified I’m Being Sued Via Text

bass_playr — Thu, 27 Sep 2018 16:53:22 GMT

OK, this is an example of why I am often reluctant to trust lawyers.

The FDCPA venue provision has only been violated if you did not live in CA when this debt was originated. Here's the actual wording of that law:

"(a)VenueAny debt collector who brings any legal action on a debt against any consumer shall—

(1)in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2)in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—

(A)in which such consumer signed the contract sued upon; or

(B)in which such consumer resides at the commencement of the action."

(2)(A) clearly shows that they can take legal action against you in the jurisdiction where you originated the debt. So, unless you did not live in that county in CA when the account was originated, there is no FDCPA violation there.

If I were in your position, I would instead focus on another provision of the FDCPA---and other laws as well. I would focus on the service. If the court docs--the proof of service--show them claiming that you were duly served, you have them on a big violation of multiple laws. FDCPA states the following:

"§ 807. False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt....."

For you, that means that if they used a false claim of proper service to the court, then they have indeed violated this provision. You could also make a case for fraud upon the court--which can often be enough in the proper format to get the court to issue sanctions against their attorney.

The trick to making debt collectors go away in a case like yours is to make enough noise about their violations of law that the only choice they really have is to drop the matter before they get themselves in far more trouble than the debt is worth. Depending on what that proof of service says, you may very well have enough to do that. But the venue provision? If you go down that road, you can expect your claim to be dismissed due strictly to the written letter of the law that permits them to sue you there. Of course, that depends on where you lived when you originated the debt. That proof of service is what everything is riding on at this point. If you search in Google Scholar, you will find federal and state court cases in PA regarding this venue provision. I'm not an attorney, but IMHO, this attorney is telling you something that the law and the courts do not agree with.

Re: Calvary SPV - Notified I’m Being Sued Via Text

RobertEG — Thu, 27 Sep 2018 21:06:41 GMT

AS I read the posted scenario, the debt was apparently obligated while you were a resident of California, and you moved three years ago to another state.

Unless the debt was secured by real estate property, the debt collector had the clear option under superceding federal law (FDCPA 811(a), Venue) to bring civil action in either the jurisdiction of current residence of the consumer, or in the jurisdiction where the contract that created the debt was executed. Thus, there does not appear to by a violation of the FDCPA, or an issue of improper venue.

Perhaps consultation with an attorney who specializes in consumer debt law would be prudent.

If the debt collector does obtain a civil judgment in CA, they would have to first "domesticate" the judgment in your current state in order to then enforce the judgment, but that is usually only a formality.

If the notice of the civil complaint was not properly served, that is a separate matter that your attorney can deal with.

If you moved out of state and did not notify your creditors of your change of address, they may have served notice via permissible means such as publication. I would not assume that they failed to comply with service requirement simply becuase you did not receive personal service. What are, for exampe, the notice requirements in CA after they have first atttempted personal service at your known address, and you could not be located?

Re: Calvary SPV - Notified I’m Being Sued Via Text

bass_playr — Thu, 27 Sep 2018 21:42:03 GMT

The service requirements are only half the story. The parties must be subject to the jurisdiction of that place in order for that place's civil procedure to apply. Jurisdiction comes first. If a court has no jurisdiction over the parties, then that court cannot rule on whether or not proper civil procedure has been applied regarding those parties.

Also, regarding service, the burden is not upon the consumer to ensure that any and all current and potential future creditors/debt collectors have their up to date mailing address. The burden rests with the party that is effecting service. If the plaintiff here faked the POS, that's fraud, fraud upon the court, and at the least also a violation of FDCPA, which is why I said that the POS document is the key to this issue. CA allows three methods of service. First is personal service. Second, if they have identified the correct address for the defendant, they can leave the summons with a person at that address other than the defendant that's not a minor. Third, if all else has failed, they can "nail and mail". But that's not the end of it. There have been cases in CA where alternative service, like nail and mail, were later ruled to be insufficient in light of evidence that the defendant had moved prior to, and was therefore never served. CA has something called the "presumption of proper service". In order to vacate a judgment due to improper service, you need to overcome that presumption. Moving out of state three years prior to the lawsuit would accomplish that. So even if they attempted personal service, found no answer, and did a nail and mail, the fact that the defendant had no hope of discovering the service would be sufficient under the correct circumstances. There is case law to that effect.

Re: Calvary SPV - Notified I’m Being Sued Via Text

vntrsc — Mon, 01 Oct 2018 00:49:24 GMT

@bass_playr wrote:
The service requirements are only half the story. The parties must be subject to the jurisdiction of that place in order for that place's civil procedure to apply. Jurisdiction comes first. If a court has no jurisdiction over the parties, then that court cannot rule on whether or not proper civil procedure has been applied regarding those parties.

Also, regarding service, the burden is not upon the consumer to ensure that any and all current and potential future creditors/debt collectors have their up to date mailing address. The burden rests with the party that is effecting service. If the plaintiff here faked the POS, that's fraud, fraud upon the court, and at the least also a violation of FDCPA, which is why I said that the POS document is the key to this issue. CA allows three methods of service. First is personal service. Second, if they have identified the correct address for the defendant, they can leave the summons with a person at that address other than the defendant that's not a minor. Third, if all else has failed, they can "nail and mail". But that's not the end of it. There have been cases in CA where alternative service, like nail and mail, were later ruled to be insufficient in light of evidence that the defendant had moved prior to, and was therefore never served. CA has something called the "presumption of proper service". In order to vacate a judgment due to improper service, you need to overcome that presumption. Moving out of state three years prior to the lawsuit would accomplish that. So even if they attempted personal service, found no answer, and did a nail and mail, the fact that the defendant had no hope of discovering the service would be sufficient under the correct circumstances. There is case law to that effect.

Just an FYI, CA allows out-of-state parties to be served in accordance with the following:

CCP 415.40

A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

Whether or not Cavalry will bother to comply remains to be seen.

Re: Calvary SPV - Notified I’m Being Sued Via Text

bass_playr — Mon, 01 Oct 2018 16:13:31 GMT

"Just an FYI, CA allows out-of-state parties to be served in accordance with the following:"

Actually, though, at this time, it would appear that they did not attempt to serve the OP out of state. This is why the proof of service is key. If they had sent the summons to the OP's actual address, they would have received it by now and would have had to sign for it---the law requires return receipt requested. So, since the OP never received any summons at their home address, then one of two things happened here. One, they either claimed acceptable service took place within CA, or they would have sent the summons out, but still to an incorrect address. Assuming the OP never got notification of any summons, there really is no other option. And, unless they sent the summons to the correct address, OP has sufficient reason to show that service was not proper.

The only question now is whether or not they lied about service, or whether it was an honest mistake. As I said, the POS should clear this all up quickly.

Re: Calvary SPV - Notified I’m Being Sued Via Text

vntrsc — Mon, 01 Oct 2018 17:55:11 GMT

@bass_playr wrote:
"Just an FYI, CA allows out-of-state parties to be served in accordance with the following:"

Actually, though, at this time, it would appear that they did not attempt to serve the OP out of state. This is why the proof of service is key. If they had sent the summons to the OP's actual address, they would have received it by now and would have had to sign for it---the law requires return receipt requested. So, since the OP never received any summons at their home address, then one of two things happened here. One, they either claimed acceptable service took place within CA, or they would have sent the summons out, but still to an incorrect address. Assuming the OP never got notification of any summons, there really is no other option. And, unless they sent the summons to the correct address, OP has sufficient reason to show that service was not proper.

The only question now is whether or not they lied about service, or whether it was an honest mistake. As I said, the POS should clear this all up quickly.

The OP wrote that he has retained an attorney. Hopefully, the attorney is familiar with the FDCPA (just in case).

Re: Calvary SPV - Notified I’m Being Sued Via Text

bass_playr — Tue, 02 Oct 2018 16:39:05 GMT

Unfortunately the lawyer does not appear to be as well versed in FDCPA as we would hope. OP says the lawyer told him that he has a "clear FDCPA violation" where there does not appear to be one at all. Anyone who can read can see that FDCPA permits a suit to be filed either in the jurisdiction where the debt was originated or where the consumer currently resides. So, OP went to an attorney and that attorney, knowing that OP used to live in CA, has determined that it's a "clear FDCPA violation" for the debt collector to sue OP in the jurisdiction where OP lived at that time that the debt was started.

I hope that OP updates us on this as new info comes available.