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Author Topic: CACH LLC suit  (Read 6486 times)
Fighting the Good Fight in FL
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« on: February 26, 2008, 12:07:05 PM »

Hopefully, somebody other than just me and Ruby are still monitoring these boards!!

Anyways, here goes….Going to court for the second time for CC debt. Received summons last week with a pre-trial scheduled in a couple of months. I knew this one was coming as I have gotten into the habit of monitoring the clerk of court site.

Being sued by Rubin and Debski out of Jacksonville and plaintiff is CACH LLC (as an assignee of Household Bank). They apparently bought this debt back in 2006. It is a defaulted CC for HSBC out of Nevada. I believe credit card was defaulted on in either 2003 or 2004, not sure which as I lost a large amount of records during hurricanes of 2004. I will have to check any older bank statements I still have left. First late payments were most likely mid 2004.

Here is the complaint:

CACH, LLC,
ASSIGNEE OF HOUSEHOLD BANK, a corporation, Plaintiff,
vs.
ME, Defendant.

COMPLAINT
The Plaintiff, CACH, LLC, sues the Defendant, ME, and alleges:

1. This is an action for damages that do not exceed $5,000.00, exclusive of interest, court costs and attorney's fees.

2.The original credit grantor established a credit card account, bearing the number xxxxxxxx, in the name of the Defendant and issued a credit card to the Defendant.

3.The credit card and the original credit card agreement (the "Agreement") were sent to the Defendant. Upon information and belief, Defendant is in possession of the original Agreement. A copy of the Agreement is attached and incorporated herein by reference.

4.Defendant, or other authorized by the Defendant, used the account to incur charges, thus accepting the terms ofthe Agreement and agreeing to be bound thereunder.

5. Defendant breached the Agreement by failing to make payment when due.

6. Plaintiff purchased and owns the Defendant's defaulted credit card account and succeeded to all the rights of the original credit grantor.

7.Defendant owes Plaintiff $XXX.XX plus interest on the credit card account.

8. All conditions precedent to bringing this action have occurred or have been waived.

9.Plaintiff is obligated to pay its attorneys a reasonable fee for their services. The Agreement provides for the
recovery of attorney's fees. In the event of a default, a reasonable attorney fee would be $400.00. WHEREFORE, Plaintiff demands judgment for damages, plus interest, costs and attorney's fees.



All that is attached to complaint is a card member agreement that that actually says GENERIC AG1138V across the top. No statements or agreement signature card. The agreement states that Neveada law is applicable and the SOL in Nevada is 6 years.

My initial thoughts:
I am not sure that this account is outside the Florida SOL of 4 years or 5 years, though I may argue if they cannot prove otherwise with statements.

I am contemplating an filing an MTD based upon failure to attach and failure to allege all the necessary elements of a valid cause of action. I know that it will probably fail due to the procedural vs. substantive view of rule 1.130(a), but I am going to be a pain in the ass as long as I can.

I will file my answers after and IF I file the MTD and use SOL and  Failure to state a cause as affirmative defenses along with any other ones I can incorporate….

I will then see what is offered at mediation during the pre-trial.

Not overly worried about a judgment as I am judgment proof and the amount is not large, just looking to give a fight and get into a better position.

Any  thoughts?

Thanks!!

Ruby, hopefully it is more than just you and me left. I think this board is extremely valuable and would like to offer any services I can provide to keep it going….
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fraudfighter
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« Reply #1 on: February 27, 2008, 04:50:13 AM »

Quote from: "grossman"
Hopefully, somebody other than just me and Ruby are still monitoring these boards!!

Anyways, here goes….Going to court for the second time for CC debt. Received summons last week with a pre-trial scheduled in a couple of months. I knew this one was coming as I have gotten into the habit of monitoring the clerk of court site.

Being sued by Rubin and Debski out of Jacksonville and plaintiff is CACH LLC (as an assignee of Household Bank). They apparently bought this debt back in 2006. It is a defaulted CC for HSBC out of Nevada. I believe credit card was defaulted on in either 2003 or 2004, not sure which as I lost a large amount of records during hurricanes of 2004. I will have to check any older bank statements I still have left. First late payments were most likely mid 2004.

Here is the complaint:

CACH, LLC,
ASSIGNEE OF HOUSEHOLD BANK, a corporation, Plaintiff,
vs.
ME, Defendant.

COMPLAINT
The Plaintiff, CACH, LLC, sues the Defendant, ME, and alleges:

1. This is an action for damages that do not exceed $5,000.00, exclusive of interest, court costs and attorney's fees.

2.The original credit grantor established a credit card account, bearing the number xxxxxxxx, in the name of the Defendant and issued a credit card to the Defendant.

3.The credit card and the original credit card agreement (the "Agreement") were sent to the Defendant. Upon information and belief, Defendant is in possession of the original Agreement. A copy of the Agreement is attached and incorporated herein by reference.

4.Defendant, or other authorized by the Defendant, used the account to incur charges, thus accepting the terms ofthe Agreement and agreeing to be bound thereunder.

5. Defendant breached the Agreement by failing to make payment when due.

6. Plaintiff purchased and owns the Defendant's defaulted credit card account and succeeded to all the rights of the original credit grantor.

7.Defendant owes Plaintiff $XXX.XX plus interest on the credit card account.

8. All conditions precedent to bringing this action have occurred or have been waived.

9.Plaintiff is obligated to pay its attorneys a reasonable fee for their services. The Agreement provides for the
recovery of attorney's fees. In the event of a default, a reasonable attorney fee would be $400.00. WHEREFORE, Plaintiff demands judgment for damages, plus interest, costs and attorney's fees.



All that is attached to complaint is a card member agreement that that actually says GENERIC AG1138V across the top. No statements or agreement signature card. The agreement states that Neveada law is applicable and the SOL in Nevada is 6 years.

My initial thoughts:
I am not sure that this account is outside the Florida SOL of 4 years or 5 years, though I may argue if they cannot prove otherwise with statements.

I am contemplating an filing an MTD based upon failure to attach and failure to allege all the necessary elements of a valid cause of action. I know that it will probably fail due to the procedural vs. substantive view of rule 1.130(a), but I am going to be a pain in the ass as long as I can.

I will file my answers after and IF I file the MTD and use SOL and  Failure to state a cause as affirmative defenses along with any other ones I can incorporate….

I will then see what is offered at mediation during the pre-trial.

Not overly worried about a judgment as I am judgment proof and the amount is not large, just looking to give a fight and get into a better position.

Any  thoughts?

Thanks!!

Ruby, hopefully it is more than just you and me left. I think this board is extremely valuable and would like to offer any services I can provide to keep it going….


Unless the PLTF's Complaint court papers show that the SoL has expired, the court won't dismiss on SoL prior to your filing an answer and usually won't after you file an answer unless you have conclusive proof. You would have to move for summary judgment.

You raise SoL as an affirmative defense and the PLTF has to disprove it to obtain summary judgment. If the PLTF can't conclusively prove that the debt is not time-barred that is grounds for you to oppose summary judgment by the PLTF.

SoL timing depends on commencement of the delinquency, the 30 day late that became 60, 90, 120 etc.., not the last payment if the action is not founded on a written instrument, which may be the case for you.

You can file a lack of attachment MTD, but that will usually be converted for a motion for more definitive statement, where the PLTF will be granted usually 60 days to come up with the documents their claim is based on. In effect, you are forcing on the clock to provide prima facie proof.

Hopefully, they won't be able to get documents from the OC sufficient in law to constitute a written instrument under FL law so that the 4 year SoL will apply.

Just a Credit card Holder Agreement is not a written instrument.

The written instrument has to show acknowledgement by the party to be charged for the debt ON THE FACE OF THE WRITING and it must show a means to determine the amount of the debt ON THE FACE OF THE WRITING.

Multiple writings can be grouped together as one writing if they link together by referencing so it is clear they are contemporaneous to when the agreement was made.

That is what you have to attack them on- the writings from the OC, or lack thereof.

And if they throw third party affidavits (they are a third party, not the OC, and thus lack personal knowledge of the account) you throw the FL Evidence Code at them for Failure of the Business Records Exception to the Hearsay Rule of the FL Evidence Code.

Also, affidavits is support of summary judgment must be from personal knowledge which excludes third party JDB record custodian affidavits.

So, if they don't come up with the right documents as required by the rule of law. you argue that they lack prima facie proof and move for dismissal at trial.
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rubyruby27
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« Reply #2 on: February 28, 2008, 06:48:08 AM »

Grossman, thanks for the offer, wish I could give you permission to help, but I am locked out of the admin board.  I am sure its a computer glitch, but I am not computer saavy.

All new members are sent to my home computer address, if I hit on them to approve them then they can access this site, the problem is I can't screen them.  I haven't approved anyone, thought the owner was but after a few months of no new members and others requesting permission to access and I can't give it to them, I see this site going down.

I really hate to lose this site but I don't know what else will happen, since the owner hasn't responded to me in 5 months.  I am sure he pays for this site.  I am thinking if he doesn't pay the next payment whenever its due, the site will be gone.
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mcb11902
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« Reply #3 on: February 28, 2008, 02:19:08 PM »

Looks like you're in small claims court based on the jurisdictional allegation.  When is the pretrial?  They didn't attach a copy of the assignment; I'd want to see that to make sure they've really been assigned the debt.  And not just a blanket assignment; I'd want to see something with your name on it.
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Fighting the Good Fight in FL
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« Reply #4 on: June 02, 2008, 04:01:36 PM »

Just wanted to provide an update on my case, and hopefully some encouragement for other facing JDBs in court.

I filed my answer and affirmative defenses (SOL and failure to state a claim) within the time limit.

Went to the pre-trial in April and met with the mediator and JDB attorney (via phone). Mediation was a joke. I offered ~1/3 of what they were seeking. The attorney said no way. The mediator then suggested to me to offer ~ 2/3 and I said no way. I told the JDB attorney I will see you in court.

Judge set trial date for June and issued an order for both sides to submit any evidence they wished to use in court no later than 15 days prior to court date. JDB attorney filed nothing by that date. I thought about filing some evidence in support of my SOL defense but decided I would wait to see what happened at trial since they had nothing more than a generic CC agreement as their case. I was hoping they would show up and judge would rule in my favor.

I also prepared a Motion to Strike the CC agreement just in case I needed it at trial.

1 day before trial and JDB submitted a voluntary dismissal. Hope I have seen the last of them, but we will see….

Thanks to FloridaDebtor, Fraudfighter, Ruby and all others who have made this website possible by sharing your experience and advice.

Fight the good fight!!
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