Author Topic: Got a summons on my apt door today in Queens, NY  (Read 5645 times)

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Bubbles

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Re: Got a summons on my apt door today in Queens, NY
« Reply #15 on: January 08, 2015 07:05:26 AM »
Were counter-claims filed with answer?

Were affirmative defenses filed with answer?

Was answer a general denial?

Usually answer consists of "deny," with perhaps a few "admit" or "without knowledge" - nothing else.

Forget DV letter.

Learn about discovery tools.
« Last Edit: January 08, 2015 07:13:47 AM by Bubbles »

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #16 on: January 08, 2015 01:46:06 PM »
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!


Pick an older agreement that was in force that had arb. Look for a survivability clause. They usually have one. Cavalry isn't that smart, neither are the lawyers they hire. They may not even argue the arb clause.
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 #17 on: January 08, 2015 05:11:51 PM »
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!

I agree with Bruno.  Check the HSBC agreements from 2006 - 2010.  One of them I would think may have something to the effect of "This arbitration clause survives any changes, including closing of the account", etc.  That would be the one I would use.  I know the 2010 HSBC agreement had JAMS, but I can't remember if there was survivability in it as well.

The OC is allowed to keep it's TL on your credit reports as long as they are reporting accurately as far as day of default, day of last payment and that it shows a current balance of $0.  Cavalry is allowed to place the current collections account on your reports as well, as long as it is accurate.  The catch is, Cavalry is likely not reporting accurately.  They never do.  I can almost guarantee that they amount they sued you for does not match the amount they have listed as balance owed on your credit reports.  That's their little game and *someone* is calling them on it as we speak in federal court ;)  You can work on any such potential violations once you are successful in getting them out of court and into JAMS.

Do not bother with a DV letter.  It serves to legal function at this point as they have already filed suit.
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)

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #18 on: January 08, 2015 05:18:13 PM »
This is from the 2009 agreement with AAA. That's the most recent one I see on here:


http://www.cardmemberagreements.org/2009-hsbc-with-aaa/

This arbitration agreement shall survive termination of your Account as well as the repayment of all amounts borrowed hereunder. If any portion of this
arbitration agreement is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the remaining portions of this arbitration agreement or the Agreement except that in no event shall the invalidation of any portion of this arbitration agreement have the effect of authorizing anarbitrator to arbitrate a class action or other matter involving joinder or consolidation of claims without the express written consent of you and us. In the event of aconflict or inconsistency between the rules and procedures of the arbitration administrator and this arbitration agreement, this arbitration agreement shall govern.No class actions or joinder or consolidation of any Claim with the claim of any other person are permitted in arbitration without the express written consent of youand us.
O
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

2ducks

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Re: Got a summons on my apt door today in Queens, NY
« Reply #19 on: January 08, 2015 06:59:47 PM »
Thanks Bubbles!

Were counter-claims filed with answer?
A) No, did not file counter-claims

Were affirmative defenses filed with answer?
A) No

Was answer a general denial?
A) Yes

Usually answer consists of "deny," with perhaps a few "admit" or "without knowledge" - nothing else.

Forget DV letter.
Got it.  Thanks!

Learn about discovery tools.
Will now look into this topic.  Thanks!


2ducks

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Re: Got a summons on my apt door today in Queens, NY
« Reply #20 on: January 08, 2015 07:14:01 PM »
Fisthardcheese, Bruno, thanks for your responses! 

Everyone has been so helpful. 

The explanation of the two TL lines on my credit report (one from the OC and one from the JDB regarding the collection) makes more sense to me now.

The 2009 HSBC agreement is what I will work with then as my legal basis to file an MTC Arbitration since it has a survivability clause. 

Unfortunately, the agreement states I can arb with AAA and not JAMS.

Do you see any down side to using AAA vs JAMS (besides JAMS making it cost prohibitive for Plaintiff)? 

Also, during Motion hearing, what if the Plaintiff argues, since my default was in 9/2011, the cardholder agreement of 2011 would be in effect?



This is from the 2009 agreement with AAA. That's the most recent one I see on here:


http://www.cardmemberagreements.org/2009-hsbc-with-aaa/

This arbitration agreement shall survive termination of your Account as well as the repayment of all amounts borrowed hereunder. If any portion of this
arbitration agreement is deemed invalid or unenforceable under any law or statute consistent with the FAA, it shall not invalidate the remaining portions of this arbitration agreement or the Agreement except that in no event shall the invalidation of any portion of this arbitration agreement have the effect of authorizing anarbitrator to arbitrate a class action or other matter involving joinder or consolidation of claims without the express written consent of you and us. In the event of aconflict or inconsistency between the rules and procedures of the arbitration administrator and this arbitration agreement, this arbitration agreement shall govern.No class actions or joinder or consolidation of any Claim with the claim of any other person are permitted in arbitration without the express written consent of youand us.
O

duh

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Re: Got a summons on my apt door today in Queens, NY
« Reply #21 on: January 08, 2015 07:24:58 PM »
The 12/2006 HSBC agreement has JAMS, AAA and NAF

The 2008 and 2009 have AAA and NAF

The 12/2006 does not have as the 08 and 09  specific language as regarding survivability but simply  says if any portion is not valid in the agreement the rest is.

My copy is sideways and not readily able to copy and past...

If you want a copy PM me an email and I will send it.
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.

CleaningUp

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Re: Got a summons on my apt door today in Queens, NY
« Reply #22 on: January 08, 2015 08:36:52 PM »
Yes, they can.  There is no such thing as double jeopardy in civil matters.  That  applies only to criminal ones.

The OC may always place a tradeline.  The subsequent owners may also place a trade line as can those authorized by the owner to collect.

The ONLY thing the FCRA requires is that the report be accurate.

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #23 on: January 08, 2015 08:45:47 PM »
Also, during Motion hearing, what if the Plaintiff argues, since my default was in 9/2011, the cardholder agreement of 2011 would be in effect?

They may raise that argument. You would have to counter that by proving you never used the account to make charges after arb was removed, if you can do that. Not using the account would be the same as telling them you do not accept the new terms. I believe they worded it that way in 2010 themselves.

If you did make charges after arb was removed, it's a tough argument. You have to rely on the survival clause and hope the judge accepts the argument.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Got a summons on my apt door today in Queens, NY
« Reply #24 on: January 08, 2015 11:01:58 PM »
Yes, they can.  There is no such thing as double jeopardy in civil matters.  That  applies only to criminal ones.

The OC may always place a tradeline.  The subsequent owners may also place a trade line as can those authorized by the owner to collect.

The ONLY thing the FCRA requires is that the report be accurate.

+1

2ducks

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Re: Got a summons on my apt door today in Queens, NY
« Reply #25 on: February 16, 2016 09:56:21 PM »
It has been a long time since my last update, but I finally got my MTC Arbitration done and approved.  The lawyer for the JDB did not show up to the motion hearing, which was fine with me, and I was able to convince the judge I was sticking with the older cardholder agreement that allows me to go to arbitration with AAA in case of a dispute.

My filing fee was sent in and AAA initiated the hearing.  They are now requesting over $3K in filing fees from the JDB.  My debt was under $2K and the SOL will run out end of this year.

The lawyer has now contacted me and wants to talk.

I was reading some of the post about settlement but wanted to know a few specifics on what I need to ask for.

1)  Dismiss lawsuit with Prejudice?
2) No 1099c as a result of dismissal?
3) Remove the JDB's tradelines from my credit report?
4) a cash settlement to help me recover my $200 filing fee?


Please advise on the above.   Also, is there a sample settlement letter I could refer to?

Many thanks for everyone's help!


fisthardcheese

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Re: Got a summons on my apt door today in Queens, NY
« Reply #26 on: February 16, 2016 11:08:06 PM »
1)  Dismiss lawsuit with Prejudice?
Absolutely, 100% MUST have this as part of the settlement.  If they do not agree to "with prejudice", then I tell them to pay the arb fees and let's go.

Quote
2) No 1099c as a result of dismissal?
You can ask if you want, but I would be very willing to drop this in a negotiation to show that I am "willing to work with them" on a settlement.  Honestly, I have never been sent a 1099 for a case that was dismissed with prejudice and even if they do there are ways around it (such as being insolvent for the tax year, etc).

Quote
3) Remove the JDB's tradelines from my credit report?
This is another request that I am very willing to let go of, as I have been able to remove all JDBs from my credit reports in other ways, such as a dispute with your now "with prejudice" dismissal and potentially followed up by an MOV request.  Not to mention that having a JDB stay on my reports for a couple months after beating them in court is a fun way to find new violations to sue them on.

Quote
4) a cash settlement to help me recover my $200 filing fee?
Absolutely 100% at minimum I demand my costs back.  The AAA filing fee and anything I had to pay to the court.  In fact, I ask for $1,000 paid to me in exchange for withdrawing my arb case. They will go ballistic at first, but that's okay, they can choose to pay AAA the $3700 instead.
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)

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #27 on: February 17, 2016 02:05:01 PM »
Don't forget a condition that they will NOT re-sell the debt to some other debt buyer. You don't want to have to go through this again.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

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 #28 on: February 17, 2016 02:43:07 PM »
Don't forget a condition that they will NOT re-sell the debt to some other debt buyer. You don't want to have to go through this again.

I would welcome another JDB to come collect for a debt I am holding a "with prejudice" dismissal for.
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)

Bruno the JDB Killer

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Re: Got a summons on my apt door today in Queens, NY
« Reply #29 on: February 17, 2016 03:08:53 PM »
That could be fun, but I'd include it anyway. Gives him a little more ammo if they breach the agreement and sell it. That way he can sue both JDBs. Legally, they can sell it even if there is a DWP if they can find somebody stupid enough to buy it. Suing on it is a different matter.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.