Calvary SPV - Notified I’m Being Sued Via Text

[MedRep86]

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!

[gdale6]

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@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!

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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.

[MedRep86]

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!  

[MedRep86]

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?  

[MedRep86]

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

[bass_playr]

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-servi...

[MedRep86]

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

[Brian_Earl_Spilner]

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

[MedRep86]

Violation of the FDCPA venue provision.

[Brian_Earl_Spilner]

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.