One more thing...
I filed the MTC on 09/22. Cavalry filed a dismissal on 09/23. Do I still need to send a copy of the MTC to them? I called to confirm the dismissal with the court today and the clerk told me it was correct.
Hey everyone! I came across this website in my googles and have spent the past 2 days reading up on A LOT in this forum, for which I am eternally grateful for! All the knowledge and help that have been provided has been weirdly comforting to me, knowing I'm not the only one going through this, so thank you all so much!
Despite that though, I'm still feeling very anxious, nervous, and uncertain about this whole process, it's the first time I’ve ever had to go through this, so any guidance and advice on how to proceed would be tremendously appreciated.
I've filled out & included the questionnaire below but am including my general inquiries here to get right down to it.
So, first things first, I wasn't personally served with the summons, my father received the summons and complaint for the suit since I wasn't home at the time, so I believe that means I have 30 days to file an answer. I set an appointment to file my answer for tomorrow morning but I will be pushing that back to give myself more time to be more informed and see if I should file the motion to compel in order to begin the arbitration process instead.
I was using LawHelpNY to formulate my answer and, during the walkthrough, was asked about how I was served and, apparently, I was supposed to receive a mailed copy of the summons in the mail since it wasn't given to me directly, but haven't received anything like that. It said I wasn't served properly as a result, so, just for clarification, does that mean I can claim I wasn't served correctly in my answer? Would it be correct to claim that even? Aside from that, I wanted some insight into what else to include in my answer. I wonder if a straight denial is out the question, or should I dispute specific allegations within the complaint? I can claim three things to be true as far as the allegations are considered: my name and address are correct, I recognize Lending Club as the original creditor, and the transaction took place in NY. So, if I proceed to claim lack of knowledge for the other allegations, do I have to defend why that is? For the most part, I am not sure what the amount left to be paid was for the loan, nor do I recall the account number, and I've seen that I could claim lack of standing because I've never directly done business with Velocity Investments themselves. Is that the case here? Could I claim lack of standing with Velocity? That's where my confusion lies with this truth vs. denial business. Any light that can be shed in how I can formulate my answer would be tremendous help for me, I would so appreciate it. I just don't want to screw anything up and get ahead of myself here.
As for arbitration, is it really the best route to take? (I pasted the arbitration agreement I could dig from LC below for reference.) It's incredibly intimidating to me, so I'm wondering, if I go down this road, do I have to hire a lawyer? I'm unrepresented at this point in time, but I've consulted 2 different lawyers, but they told me what I already know through my google searching, so not sure if I should really bother with one at this point. Of course, it'll be beneficial but I'm unemployed at the moment and strapped for cash, which is why I'm even considering arbitration to begin with because I don't think I can settle, so I really don't have the means for a lawyer right now. Also, would it be worth to try to negotiate and reach out to them to see if something can be done? Will that need to happen before I file my answer and/or MTC? And any guidance as to what to include in my MTC and how to draft it (as per NY rules) would mean the world to me!
I'm incredibly sorry for the long post, but I wanted to be thorough here, so, if you made it this far, you're a saint, thank you!
I appreciate any and all responses, thanks for taking the time to help me out! I appreciate it so much!
1. Who is the named plaintiff in the suit?
Velocity Investments, LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Malen & Associates
3. How much are you being sued for?
4. Who is the original creditor? (if not the Plaintiff)
5. How do you know you are being sued? (You were served, right?)
My father gave me the summons that was delivered.
6. How were you served? (Mail, In person, Notice on door)
7. Was the service legal as required by your state?
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None that I'm aware of
9. What state and county do you live in?
NY, Orange County
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
11. When did you open the account (looking to establish what card agreement may be applicable)?
12. What is the SOL on the debt? To find out:
13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
It just says Pre-RJI on the court site
14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
Through a credit repair agency earlier this year, yes
15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').
No, not personally, but I don't know if the credit repair agency I worked with did this.
16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
30 days, included copy of S+C below; No questionnaire included.
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
18. How did you find out about this site?
21. Arbitration. RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (b) BELOW. If you are a "Covered Borrower" as defined by the Military Lending Act (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this section 21 Arbitration is not applicable, you do not need to opt out of or take any action to ensure inapplicability.
a. Either party to this Agreement, or any subsequent holder, may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section 21 (the "Arbitration Provision"), unless you opt out as provided in section 21(b) below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of this Agreement, any Loan Agreement and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 21(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to WebBank, c/o Lending Club Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must
clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
c. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to email@example.com at any time, or by calling (888) 596-3157 from Mon-Fri 6:00 AM to 5:00 PM PT and Sat 8:00 AM to 5:00 PM PT.
The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or Judicial Alternatives and Mediation
Services ("JAMS"). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
d. If we (or the subsequent holder) elect arbitration, we (or the subsequent holder, as the case may be) shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We (or the subsequent holder, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we (or the subsequent holder) pay them and we agree (or the subsequent holder agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 21(f), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this section 21(f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the
relationship of the parties and/or Lending Club; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Loan Agreement or Promissory Note(s) or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than section 21(f) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in section 21(f) are finally adjudicated pursuant to the last sentence of section 21(f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
MY plan / goal is to re-read that thread (I have it saved and open in a seperate tab too) to go thru and draw a "bullit time line' of sorts to *See* the steps clearly that i have to do.
then post it here as a rough drawing... Think of the "IF--> Then" charts for troubleshooting "X".
(deep breath - pause -exhales slowly)
I am hoping to make a clean and clear picture diagram to be uploaded for future folks to see and use as we all know... not everyone is a text based only learner. some are visual - still others are auditory..... and still others are *hands on*....(shrugs)
I second what @ConquestShaas said — keep us posted! It's always good to hear of California victories! There are many, but they still feel great!
Especially good to see their bs attempts at a settlement —just to see if you know what you're doing.
Once they realize you do ... they tend to settle.
@NetworkEngineer also had a good Cali arbitration thread. Just in case you're looking for more info.
Yes. Keep your papers longer than you think you need to. I had situations years and years afterwards where I had to prove I didn’t owe money on the debts for which I had been sued. The paperwork was quite valuable.
I had other cases where debts I thought had been forgotten about came back to haunt me just before the deadline. Having the paperwork saved me on two arbitrations.