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  2. Harry Seaward
    FIA is the BofA affiliate that services their credit card accounts. If you ever had a Bank of America credit card, that's what this garnishment was for. Midland is a debt buyer, and has purchased the BofA debt after you defaulted on it. It's a very common practice, and there's nothing illegal or nefarious about this type of transaction. Incidentally, in order to get a garnishment, they had to have sued you first. Is there a reason you didn't respond to the lawsuit?
  3. Goody_Ouchless
    I think this speaks to what OP observed, in terms of the prevalence of pro se's appearing on the appeal rolls. I don't have hard numbers, bur it feels like the majority of posters that have consulted a lawyer over the past several years have been told to either "settle" or "consider bankruptcy." With the wide spread adoption of self-authenticating business records, reputable consumer lawyers (in most jurisdictions) are not going take on cases that are lost before they begin. I suspect that in the OP's area lawyers will only take on cases where there are clear violations, leaving the vast majority of appealed plaintiff loses being cases like this one, where a debtor got lucky.
  4. Carla C Simpson
    This company 'Midland Funding' has gone to court and got a wage garnishment against me through courts in Sherwood, AR. The garnishment says that I owe $350.68 + 10.00 (for garnishment)+ $12.25 (Certified Mail) = $372.93. Date of Judgement is 10/18/2010. All Hosea is saying is it's for FIA Card Services through Bank of America (Visa). I don't know what this is. They are holding up on the garnishment with my employer until they can get copies of the paperwork to me. I asked Hosea what is FIA and what does it mean. He just kept saying it's a card service. I called Sherwood Courts and the clerk said it does not specify enough. The clerk talked about Debtscape, which I remembered when Attorney Stephen P Lamb office filed to pick up the remainder debt that was owed due to Debtscape going out of business, which was $3,472. But I paid that debt off with Attorney Stephen P Lamb back in 2010 who collected for Midland Funding LLC. I was paying $150 amonth until the it was paid off. Stephen sent me a paid in full statement. I probably don't have it, but his office should have a record of it being paid since it had gone to court in Sherwood, AR. Something is not right about this at all. I just need some help to resolve this issue. Thanks,
  5. Pericles
    We agree. Based upon the way appeals work in PA, it's absurd to argue about discretion at all in the context of OP's posts to that thread. I certainly wasn't arguing about it. I said it was irrelevant in the thread. I thought it was a disservice and a distraction to the OP of that thread for anyone to even bring it up. Likewise about declaration admissions at trial and what jurisdictions other than PA do (or don't) essentially allow "declaration judgments" at trial.
  6. Carla C Simpson Carla C Simpson joined the community
  7. Stubis
    Thank you. Have prepared both sets of documents for filing and mailing this afternoon.
  8. TAGurIT
    Thanks for the upate!
  9. Clydesmom
    Because an attorney knows the rules of civil procedure and will follow them. You are really making this into more than what it is. They don't need to appeal the majority of their cases because they are default judgments in their favor. For the small number of consumers who actually answer and show up AND win they can appeal de novo to state court. As you said in another post the rules in Magistrate court are "lax" which allows citizens to defend themselves in court without the expense of a lawyer. By appealing to a court where they will follow ALL the rules to the letter and you don't know those rules one of two things is likely to happen: they steam roll you on the procedures because you don't know them and get a win; or you settle because you don't know all the rules or don't defend the appeal. The Magistrate basically showed them where their case against you was weak and now they are going to shore that up and try and seal the deal.
  10. Harry Seaward
    "A filing fee is required ranging in an amount somewhere from $40 to $80 depending on the amount in dispute." https://pa211sw.communityos.org/zf/profile/service/id/1589488 "Appeal, Notice of $90.25" http://www.pacourts.us/courts/superior-court/copy-and-fee-requirements Sounds like that's what they do there. Both of those fees combined are less than a plaintiff would initially pay to have their case heard in AZ Superior Court. It's been a while, but last time i called they had a message on the recording that your call would be answered by an inmate and to not give out any personal information.
  11. Goody_Ouchless
    This sounds logical. Perhaps, in an effort to streamline proceedings and save money, the first phase of these proceedings are handled like parking tickets, with more complicate cases "appealing" to Stage Two. Kind of like reaching a Level One support representative - I believe, out here, calling Motor Vehicles leads, initially, to someone in a prison call center, who's only task is to route the call.
  12. profyt77
    @fisthardcheese, @BV80, @Brotherskeeper, @nobk4me So this is my first run at the motion to dismiss. Can i get some critique or suggestion before I actually proceed with filing? Thanks in advance. MOTION TO DISMISS Pursuant to State of Ohio rules, Defendant hereby moves the court to dismiss Plaintiff’s complaint with prejudice. The bases for this Motion are set forth below. FACTS 1. The Defendant is a Permanent Resident of Canada and therefore motions to dismiss this case for lack of personal jurisdiction. (See Exhibit 1) 2. Plaintiff served Defendants Mother at her address on 09/20/19 for which she signed. 3. Defendant was never actually served. 4. Due to Defendant residing in Canada the service was improper. ARGUMENT 1. The Defendant does not live in Ohio so Ohio courts have no jurisdiction over the Defendant. 2. Rule 12(B) of the Ohio Rules of Civil Procedure: (B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. 3. Rule 3(C) of the Ohio Rules of Civil Procedure: (C) Venue: where proper. Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, “county,” as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides; (2) The county in which the defendant has his or her principal place of business; (3) A county in which the defendant conducted activity that gave rise to the claim for relief; (4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer’s official capacity; (5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property; (6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose; (7) In actions described in Civ.R. 4.3, in the county where plaintiff resides; (8) In an action against an executor, administrator, guardian, or trustee, in the county in which the executor, administrator, guardian, or trustee was appointed; (9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint; (10) In actions for a civil protection order, in the county in which the petitioner currently or temporarily resides; (11) In tort actions involving asbestos claims, silicosis claims, or mixed dust disease claims, only in the county in which all of the exposed plaintiffs reside, a county where all of the exposed plaintiffs were exposed to asbestos, silica, or mixed dust, or the county in which the defendant has his or her principal place of business. (12) If there is no available forum in divisions (C)(1) to (C)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity; (13) If there is no available forum in divisions (C)(1) to (C)(11) of this rule: (a) In a county in which defendant has property or debts owing to the defendant subject to attachment or garnishment; (b) In a county in which defendant has appointed an agent to receive service of process or in which an agent has been appointed by operation of law 4. Rule 3(E) of the Ohio Rules of Civil Procedure: Venue: no proper forum in Ohio. When a court, upon motion of any party or upon its own motion, determines: (1) that the county in which the action is brought is not a proper forum; (2) that there is no other proper forum for trial within this state; and (3) that there exists a proper forum for trial in another jurisdiction outside this state, the court shall stay the action upon condition that all defendants consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations to the action in that forum in another jurisdiction which the court deems to be the proper forum. If all defendants agree to the conditions, the court shall not dismiss the action, but the action shall be stayed until the court receives notice by affidavit that plaintiff has recommenced the action in the out-of-state forum within sixty days after the effective date of the order staying the original action. If the plaintiff fails to recommence the action in the out-of-state forum within the sixty day period, the court shall dismiss the action without prejudice. If all defendants do not agree to or comply with the conditions, the court shall hear the action. If the court determines that a proper forum does not exist in another jurisdiction, it shall hear the action. CONCLUSION For the reason stated above, Defendant’s Motion to Dismiss should be granted.
  13. Jen dempsey Jen dempsey joined the community
  14. Jen dempsey
    Hi, I received my first letter from Hunt saying they are attempting to collect the outstanding balance. I haven’t been sued yet since this is the first letter but it does state to contact them within 30 days to dispute. What should I do? It is $11,000 and less than a year old from Bank of America. How do I go about settling and not getting sued? I am in Ca.
  15. Harry Seaward
    But it does happen. We have literally no details about the case that revived this nearly 2-year old thread, so it's absurd to argue against the possibility that the trial court committed an abuse of discretion. What authority are you basing this statement on?
  16. Dgree
    Your MTCA must be a separate document that is filed along with your MoPA. Although you can cite cases on your MTCA, the MoPA is the place were you lay out your argument for the judge. So you need to separate documents: 1 MTCA - this must be on pleading paper. The hearing information must be included on the cover sheet along with the Reservation ID (if set using the online Court Reservation System). On this document you set forth your high level argument as to why you are seeking to compel arbitration. There are plenty of examples of this on the web. On this document, you must also attach the confirmation of the hearing that was produced from the CRS, at the end of the document. 2. Memorandum of Points and Authorities - this is a separate document that must also be on pleasing paper and include a cover sheet with the case information. You can title this like “Memorandum of Points and Authorities in Support of Motion to Compel Contractual Arbitration and Stay Proceedings spending Arbitration” Then you write your argument in 3 distinct sections. Intro, Argument (Referencing case law from federal and/or CA courts ONLY), and conclusion. Submit both at the same time and make sure you serve the Plantiff.
  17. fisthardcheese
    Also, does the balance shown on your credit reports match exactly the amount they are suing you for? Arbitration will be the way to win this. You must file an answer and then with it or shortly after, file a Motion To Compel Arbitration. This is explained in that thread @Brotherskeeper posted above. Once you read that and download a copy of your Credit One card agreement, we can help you with the details.
  18. BV80
    The Federal Arbitration Act is law. If the contract allows for arbitration, and you have not waived the right to arbitrate, a court cannot deny you that right. What PA law says you cannot file for arbitration in small claims?
  19. Pericles
    As you've pointed out before, it doesn't happen very often; What else doesn't happen very often in arizona is a debt buyer plaintiff going to trial without at least moving for a live [telephone] witness to lay the foundation to introduce the documents into evidence, and to be subject to cross-examination. If the defendant is represented, no telephone witness means the trial is over and the plaintiff has lost. Some other member here suggests that a jp is making a horrible decision, or is misunderstanding the rules of evidence, if she fails to admit affidavit(s) at trial without a live [telephone] witness, even assuming corresponding objections have been raised.
  20. Zinnia
    Yeah, I agree. They only seem to pursue people without lawyers, they never seem to appeal wins from defense attorneys. I think this is just another attempt at a default judgment, honestly. In PA, you can't file for arbitration in small claims. Hopefully it's in the contract. For now, I guess it's just a waiting game.
  21. Harry Seaward
    I don't know how the court system works in PA. Maybe they paid next to nothing on the lower court proceedings and just went through the bare minimum motions there hoping it would win, with the plan if they lost being to appeal to the higher court where they would bring their "A" game. Maybe they didn't bother with a pile of statement and a live witness because they knew the judge the case was in front of was pro-consumer and would never let them win, not matter what evidence they brought. There's a hundred possibilities, but none of them really matter. It is what it is at this point. Burning calories being mad that they get a new trial and trying to understand why they want to appeal is a complete waste of energy. Focus instead on what comes next. Incidentally, is there a reason you didn't pursue arbitration with this case? If it's because the OC has a small claims exemption in the card agreement, the good news is that you're no longer in a small claims court.
  22. Zinnia
    Everyone has said that the magistrate is much more lax about everything, I didn't think objecting was even an option. The whole thing was like a whirlwind and they put hardly any effort in. That's all they presented, and one statement. Like I said, they didn't really give me a chance to look at what they presented. If it was an bill of sale with an affidavit, on what grounds can you object to it? I know I've seen about needing an live witness there to confirm, is this what that's referring to?
  23. Harry Seaward
    You said they presented something with your name and account number. If that was a bill of sale with an affidavit, that could be sufficient to prove it was yours, especially if you didn't object to the admission of the record. I'm guessing there was more to it than that, however, because I can't imagine they would bother appealing such a flimsy case when you'll have the opportunity to put on a legit defense at a trial de novo.
  24. Zinnia
    Wouldn't the fact that they didn't have anything proving it was mine be proof enough? We went back and forth for some time arguing our points. There really wasn't anything left to discuss!
  25. Harry Seaward
    I'm guessing this is why they are appealing. It doesn't make sense that the court would admit their evidence and then rule against them without being given the opportunity to explain what is being admitted, and then no explanation from the court about why it ruled in your favor. Flip the script. If the court accepted everything you presented in your defense and then with no explanation said "judgment for Plaintiff. Bye", would you not want to appeal that kind of experience? I know I would.
  26. Zinnia
    Sorry I don't know how to quote multiple people in the same post.. But not an issue at all! I appreciate any kind of feedback! I guess I assumed that appeals worked with these cases like they do in criminal court.. You don't get a new trial unless your appeal is granted. Which, I still don't understand. Why even bother with the magistrate then.
  27. Harry Seaward
    Yes, but it's not a free-for-all. The court in the above cited ruling also said that "the proponent should offer evidence that the third-party records were created as part of the third party’s 'ordinary course of business.'" At a certain point enough is enough and no reasonable trier of fact would refuse to recognize the records as proper "business records", just the same as no reasonable trier of fact would admit records that meet none of the Parker/Slyke criteria.
  28. Zinnia
    There was a judgment in my favor. The lawyer gave them a paper with my name and an account number, the rest was blacked out. They only let me look at briefly, so I don't even know what exactly it was. I asked for statements, contracts, etc. They didn't have any of the things I asked for. The judge didn't dismiss anything either of us presented. And that was that, the judgment was in my favor. Which is why I am upset about all of this. You might as well not even show up, if you win they appeal and get a new case no question asked anyway. I feel like they're only doing this to people without lawyers because the Common Pleas courts are such hassles people won't even bother fighting.
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