Author Topic: Got a summons on my apt door today in Queens, NY  (Read 5646 times)

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2ducks

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Got a summons on my apt door today in Queens, NY
« on: January 07, 2015 10:09:29 AM »
Got a summons on my apt door today in Queens, NY today.

OC is: HSBC bank.
JDB:  Cavalry
Attorney for Plaintiff is:  Gerald Flynn
Amt is:  $1800 on a VISA credit card.
Last time I made a payment was in 2010.

Just a summons and a complaint form stuck to my apartment door.

I know the debt is mine, but I just don't have any money to pay for it.
I have a part time gig that I get 1099 from, but that just barely covers my rent and food.
I have no assets and my BofA checking account has at most less than $1000 at any one time before I have to pay my rent.

I'm at a loss of what my next steps are?
Will I need to goto Court and file an Answer as this links refers me to do?
http://www.nycourts.gov/COURTS/nyc/civil/consumercredit.shtml

Or do I just let Cavalry get the Summary Judgment from me and not show up at court?

I'm ok with the judgements as there is really nothing to be collected from me at this time.

Suggestions are welcomed.

Thanks!




Flyingifr

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Re: Got a summons on my apt door today in Queens, NY
« Reply #1 on: January 07, 2015 10:20:43 AM »
The worst thing you can do is do nothing. That will give them a cheap, easy default judgment which will haunt you for decades in the future. You need to file an Answer denying everything except your name and then learn how to mount a defense. For that you came to the right place.

Go to the Flyingifr Method of Aggressive Credit Repair and start by reading the following threads:

They Have an Attorney - Now the Fun Starts
In a Hurry to Settle? Read This
Chain of Custody - the JDB's Achilles Heel
Making Yourself Judgment Proof (since you are self employed this one is very important)
Understanding the Statute of Limitations


After you have a basic knowledge of what to do, post more specifics.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Got a summons on my apt door today in Queens, NY
« Reply #2 on: January 07, 2015 10:56:42 AM »
You can beat them.

In addition to the FlyingIFR links, read the arbitration thread on this site.  The 2010 HSBC card agreement lists arbitration with JAMS.  http://www.scribd.com/doc/31753185/HSBC-Agreement

JAMS will cost Cavalry $5k per day for hearings that they will not pay.  You must file your answer and then file a Motion to Compel private arbitration with the court.  Once the court grants your motion, you file the JAMS initiation paperwork and wait for Cavalry to drop your case or if they just sit on it and refuse to pay, you go back to the court to ask for a dismissal because Cavalry is not following the court's order to arbitrate.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

2ducks

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Re: Got a summons on my apt door today in Queens, NY
« Reply #3 on: January 07, 2015 11:13:55 AM »
Wow!  You folks are incredible!  Makes me feel a little bit better. 

I was reading Bud Hibbs Stop it Book, but realized the information was kinda outdated and in my search, stumbled across this site.

I will read the info as suggested and let you know what I come up with.

Flyingifr

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Re: Got a summons on my apt door today in Queens, NY
« Reply #4 on: January 07, 2015 11:42:42 AM »
Wow!  You folks are incredible!  Makes me feel a little bit better. 

I was reading Bud Hibbs Stop it Book, but realized the information was kinda outdated and in my search, stumbled across this site.

I will read the info as suggested and let you know what I come up with.

Budd Hibbs died a couple of years ago and that book was written at least 5-10 years before he died.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

duh

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Re: Got a summons on my apt door today in Queens, NY
« Reply #5 on: January 07, 2015 12:39:27 PM »
Who is actually named as plaintiff on your summons?

You need to answer the complaint, and guidance can be found on here in other threads.
If not they will get a default judgment and

NO, you are not okay with judgment. Especially if they have a mind to it they can renew at the
end of the judgment period....

If this were me I would then MTC.. (Motion to Compel) private arbitration and get this
into JAMS.

The reason being is that Cavalry really will not follow into arbitration, and HSBC wont want to either.
NOT for this amount of money. It would cost them more then this just getting into arbitration with their
arb fees and attorney costs.

When was this account opened?

I have an older than 2010 HSBC agreement and the arbitration language says they will pay
all but $50. You need to check your agreement language.

The MTC is important because now that it has a summons served the court needs to stamp their approval.

As fisthardcheese said read the arb section here and start learning.

Others far more knowledgeable then I will be along soon.
I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #6 on: January 07, 2015 01:51:30 PM »
HSBC was based in Nevada, with a 4 year statute of limitations for credit cards. If you last paid in 2010 and can document that, you can use NY's borrowing statute.


NEW YORK  N.Y. CVP. LAW 202 : NY Code - Section 202: Cause of action accruing without the state - An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. Portfolio Recovery v. King

Suing beyond the SOL is also an FDCPA violation.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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Re: Got a summons on my apt door today in Queens, NY
« Reply #7 on: January 07, 2015 02:32:02 PM »
HSBC was based in Nevada, with a 4 year statute of limitations for credit cards. If you last paid in 2010 and can document that, you can use NY's borrowing statute.


NEW YORK  N.Y. CVP. LAW 202 : NY Code - Section 202: Cause of action accruing without the state - An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. Portfolio Recovery v. King

Suing beyond the SOL is also an FDCPA violation.

+1

If you can prove date of last payment and show the court the HSBC card agreement showing that Nevada law applies to the agreement, then you should be able to get this dismissed for being past statute of limitations.  I would focus on this first, before dealing with arb.  I would only use arb if you can't prove it is outside the 4 year NV SOL or if for some reason the judge denies you dismissal based on NV SOL.

If you can accomplish this, then you can turn around and sue Cavalry for the FDCPA violation of suing on an SOL debt and collect $1,000 from them for your troubles.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

duh

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Re: Got a summons on my apt door today in Queens, NY
« Reply #8 on: January 07, 2015 03:07:55 PM »
HSBC was based in Nevada, with a 4 year statute of limitations for credit cards. If you last paid in 2010 and can document that, you can use NY's borrowing statute.


NEW YORK  N.Y. CVP. LAW 202 : NY Code - Section 202: Cause of action accruing without the state - An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. Portfolio Recovery v. King

Suing beyond the SOL is also an FDCPA violation.

This is the best route.

When in 2010 was your last payment?

Do you still have the last billing statement for this account of when you actually paid, and then the first one that you did not pay.

I only ask this as if it was Dec of 2010 and they show transaction or posting dates in Jan of 2011 then SOL may not come into play

If, however it was an earlier month then SOL will be viable according to your state laws. You would just need to get any and all documentation showing your last payment.

I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

Bubbles

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Re: Got a summons on my apt door today in Queens, NY
« Reply #9 on: January 07, 2015 07:46:03 PM »
The operative dates for SOL are date complaint filed minus date of accrual.

In NV the 6 y limit for written contracts likely applies.

Date of accrual: Depending on state, date of last transaction (including payment), or date of default.

SOL is usually first asserted via motion to dismiss.

If motion denied, it should be asserted as an affirmative defense with answer.

SOL can be waived if not asserted.

The less litigating before a potential MTC arbitration the better. Another reason to avoid the answer.


« Last Edit: January 07, 2015 08:05:55 PM by Bubbles »

Flyingifr

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Re: Got a summons on my apt door today in Queens, NY
« Reply #10 on: January 07, 2015 07:52:45 PM »
The operative dates for SOL are date complaint filed minus date of accrual.

Date of accrual: Depending on state, date of last transaction (including payment), or date of default.

SOL is usually first asserted via motion to dismiss.

No, SOL is first asserted as a Defense and Counterclaim in the Answer.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #11 on: January 07, 2015 08:56:39 PM »
In NV the 6 y limit for written contracts likely applies.


Several Nevada attorney law blogs disagree with you, Babbles. I'm going to stick my neck out and go with what they say rather than what you say. They say 4 years.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bubbles

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Re: Got a summons on my apt door today in Queens, NY
« Reply #12 on: January 08, 2015 03:07:59 AM »
Open-end credit and written contracts are not necessarily mutually exclusive.

Typically, a credit card account is founded on a written agreement, written application, and customer signatures, such as on application and back of credit card. Therefore, it is not necessarily inconsistent for the court to apply the 6 y SOL to credit cards.

If in doubt, a NV court will tend to apply the longer of two SOLs, in this case 6 y v. 4 y.

That doesn't stop OP from filing a motion to dismiss based on the 4 y SOL.

But plaintiff will probably file a memorandum in opposition to the motion, arguing for the 6 y SOL.

At this juncture, there is insufficient information to determine the precise accrual of the action.

6 y v. 4 y SOL may be moot.

Bubbles

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Re: Got a summons on my apt door today in Queens, NY
« Reply #13 on: January 08, 2015 03:10:18 AM »
:vbrofl:


Several Nevada attorney law blogs disagree with you, Babbles. I'm going to stick my neck out and go with what they say rather than what you say. They say 4 years.
[/quote]

2ducks

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Re: Got a summons on my apt door today in Queens, NY
« Reply #14 on: January 08, 2015 05:00:40 AM »
To update:

I filled the Answers to the Summons yesterday.
The Clerk issued a trial date of Mid March 2015.

The Name of the Plaintiff is:  Calvary, LLC

The HSBC credit card account was opened in 2006.
Last payment was made in 9/2011.

My question now is, since  2010, HSBC removed the arbitration clause, therefore, I wouldn't be able to MTC arbitration?
Or should I just try to MTC arbitration and use the cardholder agreement of 2006 as my legal basis?

Also, SOL defense wouldn't apply since last payment made was  9/2011.

Finally, I noticed on my credit report, HSBC marked the account as negative since 9/2011. 
Calvary now also marked it negative starting last month in 12/2014?

Is it legit to have the OC and the JDB mark my account negative for the same account?  Kinda like a double jeopardy?

Thoughts on my next steps? Should I request a Debt Validation (DV) from the JDB?

Thanks for everyone's input!