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  2. In filing the general denial, do I answer the areas of the complaint where they specifically mention causes? For example, in the summons they sent me there are two sections and titled as follows: FIRST CAUSE OF ACTION: ACCOUNT STATED 15. Plaintiff alleges and incorporates by reference the foregoing paragraphs 16. Within the last four years, an account was stated in writing between Defendant and SYNCHRONY BANK and on the account a balance of $xxxx.xx was stated to be due to SYNCHRONY BANK from Defendant. Defendant expressly or impliedly agreed to pay SYNCHRONY BANK that balance. Attached hereto as Exhibit B is a true and correct copy of a billing statement showing the balance due and owing $xxx.xx 17. Before the commencement of htis action, Plaintiff was assigned the credit account and indebtedness. Plaintiff is now the owner and holder of this credit account. 18. Plaintiff has made demand on Defendant for repayment of the credit account, but Defendant has failed to pay the balance due. 19. Payments, set-offs, credits or allowances, if any, at or after charge off, have been posted to the credit account. 20. The current balance presently due and owing is $xxx.xxx SECOND CAUSE OF ACTION: OPEN BOOK ACCOUNT 21. Plaintiff alleges and incorporates by reference the foregoing paragraphs. 22. Within the last four years, Defnedant became indebted to SYNCHRONY BANK on an open book account for money due in the sum of $xxx.xx for money lent, paid, laid out, and/or extended to or for Defendant and Defendants special instance and request and for which Defendant agreed to pay the above sum. 23. Before the commencement of this action, Plaintiff was assigned the credit accoutn and indebtedness. Plaintiff is now the owner and holder of the credit account. 24. Plaintiff has made demand on Defendant for repayment of the credit account, but Defendant has failed to pay balance due. 25. Payments, set-offs, credits or allowances, if any, at or after charge off, hve been posted to the credit account. 26. The current balance presently due and owing is $xxx.xxx WHEREFORE, Plaintiff prays for judgement against Defendant as follows: 1. For the current balance presently due ad owing of $xxx.xx 2. Costs of suit; and 3. Any such other relief as the Court may deem just and proper. So here's some background on the suit. When Portfolio first wrote me, I asked them to verify the debt in writing which they responded to and sent me a set of statements. In this summons, they attached Exhibits A and B that are Amazon CC (synchrony bank) statements w/the balance, my name and amount due. After they responded to me initially, I sent them (the lawyers Hunt & Henriques) another certified letter asking for a repayment plan of $100/month and they opted to ignore that and instead went ahead with their law suit. What points above would I address in the general denial form, would I simply deny every single item above or what? Also, if I want to instead settle with them (e.g. rather than go the MTC/court route) and offer them for example half the balance due, how would I do this? Thanks.
  3. That was certainly my concern as well. I dont want to press my luck too much and have them decide they will see the arb process through. I'm not too concerned about the tax implications. It's still better than paying the entire amount to PRA. Am I forgetting about anything I should be asking for in writing? Showing 0 balance, account closed, reported to 3 major credit reporting agencies as closed or deleted from credit report?
  4. Depends if you think it's worth it to put the matter to rest. PRA has been paying arb fees in some cases posted here. Get the settlement details in writing. Include any additional issues like those you mentioned. Also be aware of tax consequences of a settlement. You will get a Form 1099 C for the remainder of the debt.
  5. Yes, the judge stayed. It is my understanding that the plaintiff will have to file an update with the judge in 30 days per the clerk- she said I don’t have to contact the judge. I received no signed order. I’m mailing everything out tomorrow (Atty letter and JAMS ppwk). Do I need a signed judges order for the arbitration for JAMS? Thank you so much.
  6. Thank you so much! This is all so overwhelming but I am going to learn all I can; I'm so thankful for this incredible resource! I haven't received the official summons yet, should I wait to file an MTC before I get the summons? or do it ASAP? and what answers are you referring to? when you say "If you send in an answer without the MTC, you lose your right to arbitrate"? I have no paperwork because like I said all was done online... I will search all I can find.
  7. It hopefully means JAMS will become more aware of arbitrators who don't understand their CMS and will address it more systemically. Never say never, OC's have been known to back down occasionally.
  8. I had a lawsuit from Big Egg and was sued by one debt collector and made it all the way to the trial where he dismissed it w/o prejudice after trying to get me to settle in the lobby. Then it was sold to another debt collector and they also dismissed w/o prejudice but before the trial date.
  9. I'm happy i was wrong in my predictions and that this ended well for you, however, unless someone doesn't mind giving away 3 years of their life, i don't see it as "good news" for any other consumers being sued by Discover. Arbitration rulings don't create any sort of binding precedent. Just because discover lost this one doesn't necessarily preclude them from trying again with someone else tomorrow. If there's one thing we know about them, it's that the cost of pursuing a bad debt is of no consequence to them. They have spent 50x the value of a debt in pursuit of collecting it, and have never given any indication that they will ever back down. I'm sure this was covered somewhere in the 15 pages of this thread, but I'm lazy. Did you ever try to negotiate settlement with them at any point? If so, when, and what were the details, if you don't mind sharing?
  10. You have to be careful in Florida. It is easy to accidentally waive arbitration. There is an arbitration agreement. Read it carefully. You need to file an MTC -- Motion to Compel arbitration. If you send in an answer without the MTC, you lose your right to arbitrate. I think, but I am not completely sure, that you can send in an answer with an affirmative defense of improper venue due to the arbitration clause. You must send in a copy of the agreement with your MTC. Send copies of everything to the opposing attorney. You should search for threads on this forum dealing with arbitration in Florida. A lot of people have won with arbitration. Arbitration puts a LOT of pressure on the other side to settle the case in terms very favorable to you.
  11. Congrats and yes, they can sue you. The odds of them doing so are small because they are more interested in the easy cases that they can get defaults. They would spend too much money and time on you.
  12. The attorney for Midland is concerned that you won't follow through with arbitration? Wait until his client gets the invoice from JAMS. Are you saying that the plaintiff's attorney stipulated to your motion and the judge will sign an order? It looks like the judge stayed the case and gave you 30 days to file a demand with JAMS. I don't know what it is called in your court, but after you file your claim demand with JAMS and get confirmation, you would file a status report or a notice with the court to show you have complied with the judge's order. Read the link @BV80 gave you on arbitration. It contains a wealth of good information and advice I think you did a great job!
  13. This is kind of late but I was recently sued by LVNV Funding for a Credit One Bank account. A huge thanks to Robby8900 who helped me with an Objection to Motion for Summary Judgment on the basis that there was an Arbitration clause and I did not give up my right to Arbitrate. LVNV dismissed the case without prejudice the Friday before the Pre-Trial date. Sure I could be sued again for the same account but at least I know how to fight it!!! Thanks again!!! Dismissal - Redacted.pdf
  14. In the first post of the following thread, you’ll see Filing the Arbitration Case. It tells you everything you need to know. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ BTW, to alert another member, use the “@“ symbol followed by the member’s name. @Brotherskeeper @Harry Seaward
  15. Hello All! I need some help. I have been sued by Midland Credit Management for a total of about 6100 in a Suffolk County District Court. I have been reading and doing research. One of the companies is Citi, which is 4,999.73 total. The other is Synchrony Bank for the balance. I recieved a summons with two complaints attached. I will be answering my summons in a timely manner in a few days. I have put an affirmitive defense of requesting arbitration in my answer, among other defenses.. I know Citi has a clause that if it is in small claims court, they can choose to not arbitrate, which would mean MCM wouldn't have to either. I am being sued in Civil Court, I am assuming because the total amount is over 5, 000. Do I have to file 2 seperate MTC s for each of the card agreements? Would this kick the Citi card agreement down to small claims court? The Citi card will arbitrate using AAA, Synchrony will use JAMS. Also, I found the court rules for filing a motion, but I don't understand. I need to file the answer this week. Can I file the MTC(s) in a week when I've had time to get it all together?? I do have copies of the original credit agreements. I am aware I need to file an MTC, I kind of get what to write, but, I am not sure how to start it. I thank you in advace for your help in this matter! I have read fisthardcheese's thread on Arbitration. Any other places you can point me for help would be greatly appreciated! @fisthardcheese
  16. Need some opinions. I received an email from the attorney of the PRA case. Just as a quick recap, the debt they sued for is $1,800 and the court has compelled arbitration. I'm filed with JAMS. In his email, he has offered $400 to settle the matter and avoid arbitration. Settlement would include a mutual release. Does this sound like a good deal or should I hold out for less? It seems like this is missing some important details like stipulating that this would close the account and that no further balance is due. Also how they would report this to credit agencies. Thoughts?
  17. I am in Florida (Orlando) I had to print out the arbitration clause because this was all done online . https://www.avant.com/cardmember-agreement/ Do I need a lawyer for this??? I am so lost and I have no idea what I am going to do. Thank you for your help and guidance!
  18. Yes this wasnt a final judgment. Sorry late reply been busy with reuqesting for a subpoena
  19. UPDATE-- Monday 7-13 Hearing in Magistrate's Court. Atty for Midlands appeared and had made settlement offers with everyone but me. We went up before the judge at the very end and the atty presented his evidence regarding the case- statements, correspondence from synchrony, bill of sale- etc. When the judge asked me to speak I advised that I did my research and was able to locate the cc agreement outlining the arbitration clause. I stated that I would like to move venues due to this and provided an election to arbitrate letter for the plaintiff, copy of card member agreement and affidavit, a motion to compel arbitration, and the demand forms for JAMS. The judge looked at the atty and asked 'what say you?" He requested to see the agreement and agreed to arbitration provided we have a time frame to do so because he was concerned that I may not follow through due to parties in the past doing so. The judge ordered 30 for this and we agreed. The judge also said that he would continue this case until we are resolved in arbitration. He did not ask to see my docs, he did not set a future court date either. I am confused about this bc it contradicts a lot of what I have read on here. What are my next steps-- I was thinking of sending the atty's office my letter to elect arbitration via certified. Filiing JAMS today. Calling the clerk of court to see if I need to file my documents there. Please advise me what I need to do as there are so many knowledgeable people here who have been so helpful. I'm confused. I don't feel resolved yet. @Harry Seaward @Brotherskeeper would you guys mind sharing your thoughts. Thank you
  20. @cedric_86 "If any claim is advanced in court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial." That's what the contract says. However, the next clause of the arb provision talks about pursuing a claim in Justice of the Peace Court in Delaware or your state's equivalent court. Sorry, but I don't have time to reread this thread to find out if you are in small claims or not. MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 906 (Ind.2004). Whether the parties agreed to arbitrate any disputes is a matter of contract interpretation, and most importantly, a matter of the parties' intent. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) ("As with any contract, the touchstone for interpreting an arbitration clause must be the intention of the parties."). "Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties." Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont'l Basketball a$$'n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). Consequently, imposing on parties a policy favoring arbitration before determining whether they agreed to arbitrate could frustrate the parties' intent and their freedom to contract. The Supreme Court has made this clear— "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotations and citations omitted); accord Homes by Pate, Inc. v. DeHaan, 713 N.E.2d 303, 306 (Ind.Ct.App. 1999). Additionally, courts have regularly distinguished the treatment given questions of the existence of an agreement to arbitrate and questions of the scope of an agreed-to arbitration clause. In determining the scope of an arbitration agreement, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Volt, 489 U.S. at 476, 109 S.Ct. 1248; accord Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927; Bank One, 281 F.3d at 513-14 n. 24.[4] Because there was already an 907*907 agreed-to arbitration clause in these cases, applying federal policy in construing the arbitration clause would not have frustrated the parties' intent. Using the policy favoring arbitration to decide whether the parties did in fact agree to arbitrate does not answer the question but rather avoids having to decide it. Only after it has been determined that the parties agreed to arbitrate their disputes does the policy favoring arbitration play an important role. We must determine, therefore, whether MPACT and the Subcontractors agreed to arbitrate without resort to the federal policy favoring arbitration.
  21. It seems the judge may not understand that EITHER party can request arbitration. You may have to explain it to him. Look at the language in § 3 of the FAA. 9 U.S.C. § 3 If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. It says if a suit brought in court is referable to arbitration, the court shall on application from ONE of the parties. It does NOT say on application of the plaintiff. That shows that either party can request arbitration. I might reference court rulings in which The IN Court of Appeals granted a MTC to a defendant who motioned to compel arbitration or affirmed a lower court’s decision to grant it to a defendant. Here is one example. Earley v. Edward Jones & Co., LP The trial court properly granted the Defendants' motion to compel arbitration. We affirm. Earley v. Edward Jones & Co., LP, 105 N.E.3d 1094, 1102 (Ind. Ct. App. 2018)). https://scholar.google.com/scholar_case?case=16505708573931847484&q=“faa”+AND+“Arbitration”+AND+“motion+to+compel”+&hl=en&scisbd=2&as_sdt=4,15 Your cardmember agreement already specifies that the FAA governs the arbitration provision.
  22. I don't know anything about the Virginia courts. Getting in an MTC at the earliest possible time is an excellent strategy. You need to check on any Virginia threads. You may have to look around a bit. It does not appear that there is a small claims exemption. If a debt collector continued to collect after the DV letter, without validating, that is an FDCPA violation. That can possibly be a counter claim. Depends. The main point is to get this into arbitration, which will be far more expensive for them then the debt is worth.
  23. Still digging: Indiana State Law The arbitration procedural framework under Indiana law is established by statute and not common law (see Natare Corp. v. D.S.I., Duraplastec Sys., Inc., 855 N.E.2d 985, 986 (Ind. 2006)). Indiana’s arbitration law is codified in the Arbitration and Alternative Dispute Resolution statute, which includes: The Opt-In Arbitration Statute, codified in Chapter 1 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-1-1 to 34-57-1-26), which governs arbitration where parties without an arbitration agreement agree to arbitrate a dispute that is otherwise subject to court litigation. The Indiana Uniform Arbitration Act (IUAA), codified in Chapter 2 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-2-1 to 34-57-2-19), which sets out specific rules for court applications by arbitral parties, including applications to compel or stay arbitration. The IUAA reflects Indiana’s strong public policy favoring arbitration (see Welty Bldg. Co. v. Indy Fedreau Co., LLC, 985 N.E.2d 792, 798 (Ind. Ct. App. 2013); Marion Cmty. Sch. Corp. v. Marion Teachers a$$’n, 873 N.E.2d 605, 608 (Ind. Ct. App. 2007)). Unless an agreement provides otherwise, the IUAA applies to all arbitration agreements, including arbitration agreements between employers and employees or their respective representatives (Ind. Code § 34-57-2-1(a)). It does not apply to: Consumer leases. Sales and loan contracts. (Ind. Code § 34-57-2-1(b).) The IUAA is based on the Uniform Arbitration Act (UAA), which the National Conference of Commissioners on Uniform State Laws revised in 2000 when it promulgated the Revised Uniform Arbitration Act (RUAA). To date, the Indiana legislature has not introduced legislation to adopt the RUAA. For more information on the RUAA and a list of states that have adopted it, see Practice Note, Revised Uniform Arbitration Act: Overview (W-004-5167). Because the IUAA governs most arbitrations in Indiana, this Note does not discuss the Opt-In Arbitration Statute in detail INTERSECTION OF THE FAA AND INDIANA LAW The FAA preempts conflicting state law only “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 476-77 (1989) (there is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy behind the FAA is simply to ensure that arbitration agreements are enforceable)). The FAA governs arbitration agreements and awards in contracts involving interstate commerce, and the IUAA governs Indiana arbitration matters that are not preempted by the FAA (see LaSalle Grp., Inc. v. Electromation of Del. Cty., Inc., 880 N.E.2d 330, 331 (Ind. Ct. App. 2008)). Under Indiana law, the parties to a contract can agree to use the FAA to interpret their contract if the contract implicates interstate commerce (see MPACT Const. Grp., 802 N.E.2d at 904; Earley v. Edward Jones & Co., LP, 105 N.E.3d 1094, 1100 (Ind. Ct. App. 2018)). If the arbitration clause is silent regarding choice of law, the FAA applies to the arbitration agreement even if the contract contains a choice of law provision specifying that Indiana law governs that contract. Therefore, if the parties want Indiana law to govern their arbitration agreement, they must expressly state so in the contract’s arbitration clause (see Hall St. Assocs., 552 U.S. at 590; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 60 (1995)). Although the FAA’s substantive provisions may apply regardless of whether a party seeks enforcement of the arbitration agreement in state or federal court, the FAA does not preempt Indiana contract law and cannons of contract interpretation in determining whether the parties agreed to arbitrate any dispute (see MPACT Const. Grp., 802 N.E.2d at 906). @BV80 @Brotherskeeper @fisthardcheese
  24. Last week
  25. IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.
  26. The Award makes clear the first arbitrator went against JAMS own rules. I am looking into a challenge based on #2 & #4. I realize it is difficult to prove but I do have evidence.
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