Author Topic: Sued by Cach LLC, please help critique my answer  (Read 8371 times)

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laradee

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Sued by Cach LLC, please help critique my answer
« on: May 04, 2017 11:05:50 PM »
It's been awhile since I last posted here to ask for your help. Thank you for all the knowledge and information that this board gives. Someone knocked at the door last Sunday at home and handed my husband 2 copies of summons. Cach LLC is the plaintiff represented by P. Scott Lowery P.C. here in Colorado. The defendants in the summons are me and my husband. The alleged debt was from HSBC BANK NEVADA, NA/ CAPITAL ONE BANK NATIONAL ASSOCIATION which I was trying to figure out what particular credit card it was because I could not find it in my Credit Report neither in my husband's credit report. Although CACH LLC has always been in both of our credit reports since 2013 I think.  The amount they are trying to collect is $6,900 plus cost. ( I don't know how much would the "plus cost" be). I googled HSBC NEVADA and found out that Best Buy credit card was issued by HSBC and that in 2012 HSBC was acquired by CAP 1 Bank NA and then Cach LLC claimed that they owned my account now. Anyways, as far as I can remember Cach's first attempt to collect the alleged debt was in August 2015 represented by Brown Law PLLC and I requested for validation and also requested documentations that pertains to the said account. They replied but I did not received all the information and documentations I asked for. The only thing they sent us  I think was the Best Buy application form that my husband filled out and me as a co signer but I can't remember if they encluded a statements of the account.  Couple of months ago we receive another collection notice from Cach LLC represented by a different lawfirm, Scott Lowery PC is now representing them. I didn't asked for validation and I didn't know if it was necessary to ask for another one. We just ignored the notice hoping that it's almost out of SOL but we got the bad surprise last Sunday. So, in the summon the only papers they attached were Answer to the complaint form and a form from their law firm asking personal information like employment and bank account,(which I will be too stupid to fill it out 1214).
So now, here I am again stressed out, sleepless and brain fried and hoping for your response and advice. Thank You.


Cach Complaints/ Allegations;

       1.Defendants JOHN DOE AND JANE DOE are residents of ABC  COUNTY, with post office address of 123 FOX RD, Forest
          City, CO. Venue before this Court is proper because Defendant John Doe and Jane Doe resided in this county at
           commencement of this action. The amount claimed herein does not exceed the jurisdiction of the Court.

      2. The amount claimed from the defendants is $6,900.00 plus costs. Such claim arises from the following event(s) or   
          transaction(s):

                 a.HSBC BANK NEVADA, N.A> & ITS AFFILIATES/CAPITAL ONE NATIONAL ASSOC (“Original Creditor) issued
                    Defendants account number XXXXXXXXX, which evidences a credit card account or other open account.

                 b. Defendants accepted credit proceeds and became indebted to the Original Creditor. By accepting credit proceeds,
                     Defendants implied intent to pay.

                 c. Defendants breached the terms of the account by failing to repay the indebtness as agreed. Based upon
                     information and belief, the last payment made to the original creditor on this
                     account was on08/08/2012.
                 d. Plaintiff is now the owner and holder of the indebtedness and is entitled to payment.
                 e. Demand has been made upon Defendants for payment. This demand has not been satisfied, and Plaintiff is
                     entitled to the amount claimed due $6,937.66 and cost as provided by law.

     3.  Defendants are not in the military service, and in, support of this statement, Plaintiff
                Contends that Defendant are presently engaged in civilian pursuits.

     4. Plaintiff does not demand trial by jury.




Below is my rough draft your inputs, suggestions and advice or corrections will be so appreciated.

Defendants, JOHN DOE and JANE DOE appearing pro se, for their  reply to the Complaints of Plaintiff, CACH, LLC states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

1. Defendants, ADMIT the allegation in paragraph 1 of the Plaintiff's complaint.

2. As to the Complaints contained in paragraph 2, the amount of damages claimed to be due to the Plaintiff in this section is not due and owing for the following reason. Defendants are at this time without knowledge or information sufficient to form a belief  as to the truth and accuracy of alleged debt and on that basis, generally and specifically DENY the allegations contained therein and demand Plaintiff provide proof.

3. Defendants, DENY the allegations contained in paragraph 2a through 2b. Defendants are without knowledge or information sufficient to form a belief as to the truth and accuracy of the allegations therein and leaves plaintiff to provide proof.

4. Defendant, DENY the allegation contained in paragraph 2c, Defendants are without knowledge or information sufficient to form a belief as to the truth and accuracy of the allegation. Plaintiff failed to provide any kind of documentation for alleged payment or payment date.

5. Defendants, DENY the allegation contained in paragraph 2d, Defendants are without knowledge or information sufficient to form a belief as to the truth  and accuracy of alleged assignments and entitlements. Plaintiff did not provide defendants with any kind of documentation such as statements, change of term notices or any kind of other documentation regarding ownership of the alleged account.. Furthermore, there is not, nor has there even been any agreement, written, oral or implied with plaintiff and defendants.

6. Defendants, DENY the allegation contained in paragraph 2e, Defendants are without knowledge or information sufficient to form a belief as to the truth and accuracy of the allegation. Defendants demand plaintiff to provide proof of the alleged debt and how it was calculated to the alleged amount.

7. Defendants are not in military service.

8. Defendants do not demand trial by jury.




Right now, I am still thinking of what counterclaims should I put. Any ideas and suggestions please.
   


             


Beeps2015

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Re: Sued by Cach LLC, please help critique my answer
« Reply #1 on: May 05, 2017 02:04:57 AM »
Arbitration works against CACH (they won't arbitrate) Find the original cardholder agreement and see if it has an arbitration clause in it

The parent company of CACH (SquareTwo Financial) is currently in chapter 11 bankruptcy. From all of my understanding that is supposed to mean an automatic stay for all judicial proceedings. However someone will eventually purchase this account with CACH's sell off, so if you're looking to just get it out of your life keep your fingers crossed and find an arb clause in the contract.

Bruno the JDB Killer

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Re: Sued by Cach LLC, please help critique my answer
« Reply #2 on: May 05, 2017 01:13:55 PM »
in 2012 HSBC was acquired by CAP 1 Bank NA


Cap One removed arbitration from all of its agreements in 2010. Your SOL is 6 years. You do have a borrowing statute, though. You might try invoking it.


Collection of Debt on Account   6 yrs. if contract §13-80- 103.5


COLORADO  13-80-110. Causes barred in state of origin If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state.

Replaced with UCLLA

UCLLA provides that the applicable limitations period should be set by the state whose substantive law will be used to decide the case. The UCLLA thus answers the limitations- period question in a predictable and certain way.

The operative sections of the UCLLA are sections 2, 3, and 4. Section 2 provides:

§ 2. Conflict of Laws; Limitations Period.

(a) Except as provided by Section 4, if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies;
or

(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this State applies.

(  The limitation period of this State applies to all other claims.

Section 2, in short, treats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues in the claim, regardless of whether that limitation period is longer or shorter than the forum's limitation period.(38)

Section 3 provides:

§ 3. Rules Applicable to Computation of Limitation Period.

If the statute of limitations of another state applies to the assertion of a claim in this State, the other state's relevant statutes and other rules of law governing tolling and accrual apply in computing the limitations period, but its statutes and other rules of law governing conflict of laws do not apply. (generally interpreted to mean that if the SOL of the other state had not passed prior to the move to a different state - the SOL is tolled. )

This section treats all tolling and accrual provisions as substantive parts of the limitations law of any state whose law may be held applicable.

I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

laradee

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Re: Sued by Cach LLC, please help critique my answer
« Reply #3 on: May 05, 2017 08:59:32 PM »
Arbitration works against CACH (they won't arbitrate) Find the original cardholder agreement and see if it has an arbitration clause in it

The parent company of CACH (SquareTwo Financial) is currently in chapter 11 bankruptcy. From all of my understanding that is supposed to mean an automatic stay for all judicial proceedings. However someone will eventually purchase this account with CACH's sell off, so if you're looking to just get it out of your life keep your fingers crossed and find an arb clause in the contract.

Thank you for your reply and information. I'm trying to search online to get a copy of HSBC BANK NEVADA N.A. (2009) agreement but couldn't find any. Does anybody here that can  point me to a link? I would appreciate it. Thank you.

laradee

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Re: Sued by Cach LLC, please help critique my answer
« Reply #4 on: May 05, 2017 09:19:02 PM »
in 2012 HSBC was acquired by CAP 1 Bank NA


Cap One removed arbitration from all of its agreements in 2010. Your SOL is 6 years. You do have a borrowing statute, though. You might try invoking it.


Collection of Debt on Account   6 yrs. if contract §13-80- 103.5


COLORADO  13-80-110. Causes barred in state of origin If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state.

Replaced with UCLLA

UCLLA provides that the applicable limitations period should be set by the state whose substantive law will be used to decide the case. The UCLLA thus answers the limitations- period question in a predictable and certain way.

The operative sections of the UCLLA are sections 2, 3, and 4. Section 2 provides:

§ 2. Conflict of Laws; Limitations Period.

(a) Except as provided by Section 4, if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies;
or

(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this State applies.

(  The limitation period of this State applies to all other claims.

Section 2, in short, treats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues in the claim, regardless of whether that limitation period is longer or shorter than the forum's limitation period.(38)

Section 3 provides:

§ 3. Rules Applicable to Computation of Limitation Period.

If the statute of limitations of another state applies to the assertion of a claim in this State, the other state's relevant statutes and other rules of law governing tolling and accrual apply in computing the limitations period, but its statutes and other rules of law governing conflict of laws do not apply. (generally interpreted to mean that if the SOL of the other state had not passed prior to the move to a different state - the SOL is tolled. )

This section treats all tolling and accrual provisions as substantive parts of the limitations law of any state whose law may be held applicable.

Thanks for you reply Bruno. That is very informative. So, how do I invoke "borrowing statute"? I mean how do I write it up in my answer to complaints. Should I put that as my counterclaim?

Bruno the JDB Killer

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Re: Sued by Cach LLC, please help critique my answer
« Reply #5 on: May 06, 2017 01:20:25 PM »
SOL is a defense, not a counterclaim. It will depend on where Cap One is (VA I think) and what their agreement says about SOL. Years ago it said either applies, yours or theirs, whichever is longer. Of course CACH is not staffed by legal geniuses and probably doesn't even know what a borrowing statute is.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

laradee

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Re: Sued by Cach LLC, please help critique my answer
« Reply #6 on: May 10, 2017 04:50:58 AM »
Thanks Bruno! Virginia's SOL is 6 years same with CO. So, I think my chance of using borrowing statute is not gonna do any favor on my defense. On the other hand I just thought about something if you could help me figure out if there is an FDCPA Violation I could use in my counterclaim. Here's what happened. In March 23, 2015 Brown Law, PLLC sent me a collection notice that they are representing CACH LLC. They stated that the Original Creditor was HSBC Bank, Nevada. In their letter they said that CACH LLC was willing to work with me in order to resolve the alleged debt in the amount of $6,900. I can't remember if I sent them validation during that time. Then in August 18, 2015 I received another collection notice and wanted to offer a settlement option. This time they offered me one time payment in the amount of $2,600. due on August 31, 2015. In 2015 HSBC has no longer existed since it was acquired by CAPITAL ONE in 2012. Both of the letters I received during those times CAPITAL ONE was not mentioned. The only time I knew that CAPITAL ONE is now the original creditor when I received the summons. I don't know if this make any sense. I'm just hoping if I could have any counterclaim against CACH.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Sued by Cach LLC, please help critique my answer
« Reply #7 on: May 10, 2017 10:24:40 AM »
Use the HSBC card agreement and file an MTC to get this out of court and into JAMS.  That's a winner against CACH.
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: Sued by Cach LLC, please help critique my answer
« Reply #8 on: May 10, 2017 01:15:30 PM »
Virginia SOL on open accounts is 3 years. HSBC was absorbed by Cap One, they can use the name when referring to older accounts. It's not a violation. If you used the card after the merger, you accepted the new terms, which do not include arbitration. You can try it, but be prepared to argue in front of a judge why you should have arb when the contract has none.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

laradee

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Re: Sued by Cach LLC, please help critique my answer
« Reply #9 on: May 10, 2017 05:39:56 PM »
So this is a rough draft regarding "borrowing statute". I am adding this in paragraph #4 in my answer and defense;

4. Defendants, DENY the allegation contained in paragraph 2c, Defendants are without knowledge or information sufficient to form a belief as to the truth and accuracy of the allegation. Plaintiff failed to provide any kind of documentation for alleged payment or payment date. Defendants invoke borrowing statute based on the Colorado Revised Statute  § 13-80-110
“If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state.”


What do you think guys? I am not sure if I am saying it correctly in legal terms.  I'm open to suggestions and inputs. Thanks.

Bruno the JDB Killer

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Re: Sued by Cach LLC, please help critique my answer
« Reply #10 on: May 10, 2017 09:16:46 PM »
Nope, try again. throw out paragraph four and start over. Do they have to provide this information you mention? No need to mention the borrowing statute and help your opponents. Just assert the defense of expired SOL in five words or less. Let them figure it out.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

laradee

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Re: Sued by Cach LLC, please help critique my answer
« Reply #11 on: May 12, 2017 03:54:42 PM »
Nope, try again. throw out paragraph four and start over. Do they have to provide this information you mention? No need to mention the borrowing statute and help your opponents. Just assert the defense of expired SOL in five words or less. Let them figure it out.

ok, I will do that. Thank you Bruno.

Bubbles

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Re: Sued by Cach LLC, please help critique my answer
« Reply #12 on: May 13, 2017 09:57:58 PM »
There is no SOL specified for open accounts in VA.

Accrual for open accounts is date of last transaction (payment or purchase).

SOL for written contracts: 5 y.

Could argue 3 y SOL for oral contracts, but not a slam dunk.

Pay no attention to Bruno.

Virginia SOL on open accounts is 3 years. HSBC was absorbed by Cap One, they can use the name when referring to older accounts. It's not a violation. If you used the card after the merger, you accepted the new terms, which do not include arbitration. You can try it, but be prepared to argue in front of a judge why you should have arb when the contract has none.

Bruno the JDB Killer

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Re: Sued by Cach LLC, please help critique my answer
« Reply #13 on: May 13, 2017 10:02:15 PM »
Case law supporting your position, Aristotle.
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: Sued by Cach LLC, please help critique my answer
« Reply #14 on: May 13, 2017 10:15:55 PM »
You're the one that said in VA there was an SOL of 3 y specified for open accounts. That's YOUR story, not mine. You're hallucinating again bucko.


http://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-249/

http://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-246/




Case law supporting your position, Aristotle.

 

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