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

[SunriseEarth]

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@RobertEG wrote:

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.

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I agree with our community leader.  If you wish to make a legal argument regarding service or have any concerns regarding how to respond through the court system, we highliy recommend obtaining legal representation, as laws vary by jurisdiction.   Certainly, even if you don't have a legal argument, you should respond to the case and avoid a default judgment.   You may want to seek legal aid assistance in your area.  

[SunriseEarth]

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@Coolermaster007 wrote:
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

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When I worked on wage garnishment support, this was an option that I recommended our client's employees use, even though default judgments were already obtained by that point.   There certainly is incentive for a creditor to avoid additional legal costs and settle or accept a payment plan out of court.   It's an option worth considering.  

[Anonymous]

If they can't garnish you, I don't understand your concern.  If I understand correctly, you just don't want it on your credit.  It is a debt that you said you made.  Why shouldn't it be on your credit if you didn't pay it?

I just read your post where you don't feel bad about "screwing" them.  Question answered. Wow

[Anonymous]

But what are the odds they are going to be amenable to that kind of thing now that they have already filed in magistrate court in my county?

I just looked through all of the proof that they sent me again as Plaintiff Exhibit A, and there's nothing but screenshots from computer screens from Cap1. There's no agreement signed by me, and I'm almost positive this debt has been sold twice from the original holder Orchard Bank to Cap1, then again to Cavalry SPV 1 for what was certainly pennies on the dollar. I know it isn't something that is encouraged on this board, but the reality is I'm wondering if they would actually be able to prove anything legally, and I know there are people on this board and others who have had success getting them to go away altogether with a DV letter.

I'm just wondering if it might not be in my best interest to go that route first and see what happens. Worst case scenario, they are able to present everything and I eventually negotiate a payment schedule with the understanding that they pretty much are only ever going to get what I'm willing to pay them, which should encourage them to settle with me at a lower cost. I mean, even if they get a judgment, they can't garnish me.

What I'm thinking about doing is sending them a DV letter and submitting the proof that I did so as my exhibit A with my answer to the court, my answer being that I lack sufficient knowledge to admit or deny their charges and make them provide proof.

I honestly don't feel bad at all if it is construed as screwing Calvary. My state Attorney General already got a huge judgment against them within the past few years for their shady practices, and they knowingly purchase junk debt – they aren't a victim. Then again, I'm also not completely against the idea of paying a little bit just to make all this go away, but I don't want to call them and end up paying them money and screwing myself by having the debt re-age, etc. Basically, the only scenario where it's worth my while to play is if they remove the tradeline from my credit completely and put it in writing they aren't going to sell the account to another JDB and have me doing this all over again in a year or two with someone else.

[Anonymous]

You can always fight the legitimacy of how one is served (I've been there and won). Her acknowledging papers were delivered to her residence is not the same as acknowledging she was properly served. There are laws in place to prohibit such acts from the server. Making a settlement doesn't prohibit this from being posted to her CP. Agreeing to entertain a settlement can reset the 7 year clock. If the OP doesn't want to attack the validity of the serve then the very min they must attack the validity of the debt.

I know you're angle is agree to settlement before a law suit reports but entertaining a settlement also can reset the 7 year clock so the OP must be careful and choose her wording correctly and get mail certified.

[rmduhon]

It can't reset the credit reporting time period but in some situations and states it can restart the SOL.

[Anonymous]

desolutedata, I'm a guy, but that was also my thinking. Thanks for the input.

Tbh, I'm much more interested in challenging the validity of the debt itself as it's been sold more than once. If they can't validate, that's got to improve my position even if I do end up setting with them eventually.

[Anonymous]

Mybad

They need to validate not only the debt is yours but that they've also purchased it. The collector will try to say that the debt exist which is not a validation of it being yours and they own it. Make sure you send a letter by certified mail to ensrue reciept of delivery and give them the mandatory 30 days to prove the debt. Since this is not on your CP the three CRA won't be any help "they're never that much help anyway". 

[Anonymous]

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@Anonymous wrote:

Mybad

They need to validate not only the debt is yours but that they've also purchased it. The collector will try to say that the debt exist which is not a validation of it being yours and they own it. Make sure you send a letter by certified mail to ensrue reciept of delivery and give them the mandatory 30 days to prove the debt. Since this is not on your CP the three CRA won't be any help "they're never that much help anyway". 

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Disregard, I was incorrect in my response.

[RobertEG]

Even if a prior DV was not sent, a DV at this point would likely be untimely (i.e., after 30 days from dunning notice), and thus have no effect.

Even if a DV would currently be timely, it would not impose any requirement to send anything.  A timely DV imposes a cease collection bar, not a requirment to respond.

Additionally, in most jurisdictions, verification in response to a DV does not compel documentary proofs.

If one wished to seriously contend the debt, then the venue is the court, where documentatary proofs are required and obtainable via pre-trial discovery.

If the debt is clearly invalid, the consumer should welcome a day in court.