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  2. She should be getting a $1400 case management fee here soon. A letter back in February said it will be assessed once arbitrator has been appointed. Which just made me think of another reason to get the 22k now. She paid the first, thinking it was the 22k and “frivolous” so she anticipated getting that money back. I kind of worried she will go ahead and pay that $1400 thinking the same thing.
  3. Today
  4. @fisthardcheese To add to the above, the benefit I see getting the 22K thrown out of the 3K NOW and not LATER is the 22K will be closed with AAA and I will have a letter showing the court, she will KNOW the 22K is not in the case we are in right now and I can get the case dismissed in court. (I guess even is she is still confused, I am not sure What evidence she would to prove the case isn’t closed) If I leave it in there and it takes a turn and they let her keep it in there, then I have to continue dealing with update conferences and stuff in the court system.
  5. In order for me to file a motion for sanctions, I would first need to file a motion to lift the stay. Once the stay is lifted, the door would be open for the JDB to file motions of their own. This is why I wanted to keep the stay in place. The court clerk told me she will be sending letters out in the not-too-distant future on cases that have not had any activity for more than a year. This letter would be sent to the JDB's attorney with a copy to me. Once this is received, I can respond by saying the case should be dismissed with prejudice due to the amount of time that has lapsed and the JDB's failure to further prosecute.
  6. If you want to settle with them, that's your option. BUT, I think you have a much better option, when dealing with a JDB and the OC is Synchrony: arbitration. Best arb info: I would file an answer to the lawsuit and a MTC Arb. You can make this go away for much less, probably around $0.
  7. Filing in JAMS is fine, but that won't stop the court case. The MTC Arb, in which you also request a stay pending arb, is what will bring the court case to a screeching halt. Which is the objective here. Oh, and if you want arb, don't engage in discovery, and if you get any discovery requests from Midland, you need to answer them by objecting.
  8. That's my take on Ohio arb law, but experience reported here indicates that it doesn't seem to make a difference if the defendant files a motion to dismissor in the alternative stay or a MTC. You should always ask for a stay, however, as Ohio law mandates a stay pending arb. And that is what ends the creditor's court case progress.
  9. Yes it is consistent with JAMS. I have stated JAMS in my affirmative defense
  10. AAA gave Unifund a due date of (yesterday) to pay their filing fees on the 22K, then they will close that case and refund my $200 filing fee. What worries me is since that 22K is in her counterclaim now, when she gets my brief and can figure out whats going on and answer my brief with her 22k and I can't argue anything. She counterclaimed in the time allowed and there is not an AAA case for that account number anymore. The only thing I have left is the commingling of account documents, which by that point, if she figured it out then she won't have the documents commingled in her brief back to me. I feel like there is a chance she could easily turn it around on me. Asking forgiveness, she was confused and thought it was the 22K, she accidentally mixed the documents, now there is not another AAA case, I do still have this claim against her... And make it sound "I" was waiting to throw out the "failure to serve" thing go knowing that the other case was going to close. There would be a chance the arbitrator could agree and just leave everything in there. Because he DID say he only has authority to make a decision on the account in THIS case. He said the arbitrator on the other AAA case has authority for that one. *****One more to add about this part of it. It I get it thrown out NOW, she would have to ASK to get it back in, the arbitrator has only seen the mess of her counterclaim, her arguing until she was blue in the face at the hearing saying there aren't two accounts in her answer, saying the Claimant is lying (I am sure he was compelled to look to see if there were or not when we got off the phone, lol) It would prevent her from figuring it out, responding with documents separate, asking forgivness and so on. (To add, I am almost certain she still thinks this is under the courts jurisdiction so very well could explain all this to the arbitrator and the arbitrator let it all stay) Or possibly just file failure to serve (which will get her counterclaim thrown out), don't ask for a phone hearing, file brief, wait for her answer and if anything about the 22K is in there object... AAA is closing the 22K. Yesterday was their absolute last deadline. My thinking was is I get the 22K thrown out of this case now, Unfund would have to "ask" the arbitrator to let her add it. Which the arbitrator is well aware there are 2 cases and all this mess stemmed from it. So I would think there would be a chance he wouldn't even allow her to add that claim at this point. So there is not a time frame I have to file failure to serve? So if we go through everything you said to do and it comes a point now the arbitrator decides, yes, I will allow this account number to stay in here since the AAA case is closed, I can then file failure to serve after we went through all those steps?
  11. My suggestions have not changed on this case. Either settle for a mutual dismissal at this point, or file a motion for sanctions and let the judge figure it out, or wait for the court to close it - which may or may not be objected to by them with their own accusation that you failed to follow JAMS. I would personally want to make that argument first in my Motion for Sanctions. I would also point out in my motion for sanctions the amount of time that has lapsed, showing that they are not interested in further prosecuting this case anyway and it should be dismissed with prejudice. You can wait another 6 months and this will still be my answer.
  12. It all depends on how it is dismissed. But when done right, 99% of the time it will conclude with a settlement agreement that either includes dismissal WITH prejudice or an agreement that states that they release you of all liability regarding this account. Both of those would make it a dead debt at that point.
  13. Does this have anything to do with the current Midland account? No, it doesn't really matter at this point. They have violated the FDCPA by continuing collections before validating the debt, but you have no way to prove you sent them a dispute letter, so there is nothing you can do with it. I would wait until they send this account to a lawyer. You will get a new letter stating that you account is with the law firm and I would respond to THAT letter with a simple one-line dispute. Send it Certified with Return Receipt.
  14. Alright. Ask for a phone hearing. It will be an exact copy of your last phone hearing with nothing accomplished because no briefs have been filed to clearly lay out to the arbitrator what this case is even about. Also, I'm sure he will deny it for the same reasons. However, as I have pointed out about 7686 times now, once both sides file the brief, you will then have a clear course of action. You will have their claims and allegations to object to, ask for things to be stricken, ask for a hearing on their jumbled mess, ask for sanctions for their intentional conflation of cases and their failure to previously serve their filings to you which shows a pattern of intention to confuse you and the arbitrator as a smoke screen to force claims from another case into this one. Ask for more time to conduct discovery to sort out the mess they have made of this case. This is the kitchen sink tactic I would use, but how would you or the arbitrator be clear about what you should be objecting to and pointing out as problems if they haven't filed their brief yet?
  15. As long as the case is stayed, I know where I stand. If and when the case is dismissed without prejudice for lack of prosecution, I won't know if the JDB and their attorney are dead, napping, or wide awake. While I prefer not to be pulled into small claims, I have my defenses ready to go. I also drafted a motion to dismiss a long time ago. This motion was successful on another case in Florida involving the same JDB, OC, and chain of ownership documents. If things move forward, I have my accounting and statements to back me up. Right now my options are to offer a settlement, file a new claim with JAMS (seeking my previous JAMS fees and attorney costs), or wait to see if the case is dismissed without prejudice. I'm hoping to get some input from @fisthardcheese and @Goody_Ouchless.
  16. I'm not sure if I would be permitted to because my complaint would be somewhat tied to the case that's currently stayed. While I believe my complaint is separate, I have a suspicion the court would see it differently.
  17. Sorry for the delay in replying, April was a busy month for me. My trial date is 5/31, and a pre-trial conference is scheduled for 5/10. Update: When I went silent, I went back and read my agreement with Synchrony, and I found a thread here on CIC about arbitration. I went ahead and submitted forms to JAMS to get arbitration rolling, and I heard from them last Friday that they would be contacting the involved parties. So what might I do should the pre-trial conference come up and this is still in contact mode? Do I let the judge know I am pursuing arbitration and provide a copy of the demand packet (if requested)? Would a revised MTC Arbitration be helpful/needed as well? Weird part: Midland has been silent about this. I've had no discovery requests, no contact directly from them about the trial...just crickets. Is that typical?
  18. If midland drops the lawsuit when I request arbitration can it sell the debt to another debt buyer?
  19. Ask the court clerk how they would prefer you to go about getting approval to begin discovery.
  20. @LaneBlane I think it's worthwhile to game out your various options with advice from experienced members. Doing nothing--other than a continued ding to your otherwise good credit reports--hasn't had much of a downside IMO. The minute you take an action, the plaintiff and its attorney will awaken from their slumber. I have no insight into this other than to suggest that any action taken be done to increase leverage into a settlement most favorable to you. Motions back in court and new arbitration filings entail work. Unexpected outcomes are possible. What if the court case is dismissed and you hear nothing from them? They are in basically the same boat as you are; they will have costs with no guarantee of outcome with any action they take.
  21. To clear up where I am in this case 1/15/19 submitted my initial demand form 2/21/19 AAA sends letter giving Respondent 14 days to answer/counterclaim (respondents due date to submit is 3/7/19) 3/6/19 Respondent filed counterclaim/didn't serve to Claimant (this would give me until 3/21/19 to object/respond) 3/29/19 Arbitrator appointed 4/8/19 AAA sends me Respondents counterclaim (gives me 14 days to respond, which would be 4/22/19) 4/10/19 Claimant file/serves objections 4/15/19 Initial Preliminary Hearing (started and concluded) Claimant brought up objections, but in the arbitrators eyes he sees Respondent counterclaimed within 14 days, Claimant's objections were not filed by 3/21/19) So my objections were heard not settled before Preliminary hearing ended. 4/15/19 Arbitrator orders Claimant to file brief. Once I file my brief and Respondent comes back with the 22K stuff, it is "technically" in her counterclaim she submitted before the arbitrator was appointed. So as of today, both accounts ARE in this one case. I am still in my 14 day window AAA said I had to respond/object to her counterclaim. Which I did send objections BEFORE the preliminary hearing, but they were heard but not settled (since they were not in by 3/21/19) ***edit update: So when I sent my objections, did this prompt the (Respondent has 14 days to respond, then Claimant has 14 days to respond) then hearing? Or since I didn't ask specifically for a phone hearing in my objections, my objections did nothing? I think this is the part I am most confused about.
  22. All of this happened before our initial preliminary hearing. She never served me her response/answer. Aaa provided her response to me 5 days before our initial preliminary hearing date, which I sent a written objection immediately. (Aaa said since I am just getting these documents, I have 14 days to respond) So since my objections were “late” (I didn’t see their counterclaim until after my time to respond had passes) they were heard at our initial preliminary hearing but not settled, meaning her counter for 22k is still in this case. But can’t I file a dipositive motion under r-52 failure to properly serve? And get her counterclaim thrown out? Her counterclaim WAS filed before arbitrator was appointed, so she didn’t need permission to add a counterclaim. Now she does need permission to add a counterclaim against me. Or did I “forfeit” being able to file to get it removed since I objected? I am unclear how that works Edit... also asking for a phone conference to clear all this up (which I would clear up the fees being reallocated, this is not under court jurisdiction, etc) So she knows BEFORE I send my first brief for the 3k. Which asking for this hearing before I file my first brief would prompt a bill for her.
  23. No, not sinister. By "sly" I just meant that they glanced at AAA info (likely from a cut and paste brief as you pointed out) and think they know how arbitration goes now. Just as we are seeing in other cases, these attorneys really get tripped up on how arbitration actually does work, so I am only strongly suggesting using JAMS, not only because this attorney may believe they know how AAA works from glancing at a previous brief, but also because JAMS is much more comprehensive and includes things like discovery without having to beg for it like in AAA.
  24. Hi! I've been reading through the forums here. Didnt post under settlement because I'm already being sued. Didn't post under post judgement because I haven't answered the summons yet. I verbally negotiated the settlement amount (over a series of phone calls) and received a settlement agreement, but there is no mention of dismissing the lawsuit if paid. I want to pay and be done, but not if this agreement leaves me open for them to come back at me. I will start by answering the questions. I copied the settlement agreement below that. Can anyone review it and give input? 1. Who is the named plaintiff in the suit? Midland 2. What is the name of the law firm handling the suit? Midland 3. How much are you being sued for? 5k 4. Who is the original creditor? (if not the Plaintiff) Synchrony 5. How do you know you are being sued? (You were served, right?) Received by mail. On proof of service due diligence form, the process server lied about having attempted to serve adult at the residence. That said, I don't think it's worth doing a motion to quash service because they'll just serve me again. 6. How were you served? mail (substitution) 7. Was the service legal as required by your state? If it had happened the way the server said it did, then yes, it was legal (it didn't). Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Rec'd notice they purchased debt with payment demand. 9. What state and county do you live in? CA, Sacramento County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) not outside SOL 11. When did you open the account (looking to establish what card agreement may be applicable)? I obtained the proper card agreement (w/ synchrony arbitration verbiage) 12. What is the SOL on the debt? To find out: 4 yrs 13. What is the status of your case? Complaint & Proof of service filed, haven't answered, no hearing date set. 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no 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 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? 10 days 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. *Bill of sale from Synchrony to Midland *Purchase Price Reconciliation /Funding Instructions (“This FORWARD FLOW ACCOUNTS PURCHASE AGREEMENT is made this [date]) *Affidavit of sale of account by original creditor *Certificate of Conformity * a screenprint w/ acct info captioned at the bottom “Account information provided by Synchrony Bank pursuant to the Bill of Sale / Assignment of Accounts transferred [date] in connection with the sale of accounts from Synchrony to Midland. “ *the initial notification to me that the account was sold to Midland, demanding payment *two billing statements from the OC *copy of Notice of Legal Placement notifying me it was transferred to the legal department *Superior Court Alternative Dispute Resolution Information Package *Blank form CV\E-203, Stipulation and Order to Arbitration/Mediation Limited Civil Cases 18. How did you find out about this site? Google search Midland sent their boilerplate agreement (from which the rep warned they will not deviate). The rep said (verbally) after a 10 day period (to allow time for the instrument to clear), they will move to dismiss. Different reps have said different things as to whether it would be dismissed with or w/o prejudice. Without any written agreement regarding dismissal, I'm hesitant to remit payment. On the other hand, I don't want to go to court and end up with a judgment. I plan to prep my answer because it will be due before I could pay and wait 10 days. I cannot use a general denial, so I believe I have to file an answer and a mtc arb. I was advised to go ahead and file my answer just as if there is no settlement on the horizon, to protect against judgement. Here is the language on the agreement: (The agreements is on their letterhead.) It says: You have agreed to pay a total settlement amount of $x. As of the date of this letter, your remaining settlement balance is [all of] x. Please see add'l page for settlement term details. This settlement arrangement is made in good faith and is contingent upon payment of the total settlement amount. If the payment instrument is returned “not paid” for any reason, this letter will be null and void. In the event you fail to make all payments on time and as agreed, this agreement will no longer be valid and further legal activities may follow and a judgment may be entered against you. As a result, you may owe more than the balance shown in this letter. *** The attached page has the account number, and says, "The settlement terms you have agreed to are as follows: One-time payment $x by personal check due on [date]." Thank you for reading my post, and for any guidance you can offer! Banana
  25. Your problem is that I highly doubt another bill is coming. This is why everything will probably hinge on throwing everything and the kitchen sink at them after you see what is in their Reply Brief. Including objections to counter claims, objections to costs citing the AAA rules plus the contract language stating that Unifund has no option to collect fees on arbitration cases, and also probably even pointing out that we are in a private arbitration case with AAA and not Court.
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