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Showing content with the highest reputation since 11/13/2018 in all areas

  1. 2 points
    I'll admit upfront, I could have done things a little better and maybe been a little quicker on my feet in court. But I doubt things would have turned out better. I type this as a warning to those who want to try and fight themselves. I'm sure it's possible to win, but it's not like it used to be. I'm in Kansas. I was sued by a junk debt buyer for $1200 in December of 2017. I didn't have the money to hire a lawyer and given the relatively low amount of the debt, I didn't really think going the arbitration route would be necessary. I won't get into all the details, but I answered the lawsuit appropriately. Eventually discovery started, I sent off all mine and answered all of theirs in a way that didn't admit anything and give them any ammunition for court. The plaintiff only answered my request for admissions with a general denial. I did not get anything else back from them. Eventually August 2018 rolled around and I had my first pretrial conference which was. During the conference the attorney met me in the hall and he half heartedly tried to cut a deal with me that wasn't very good. We didn't agree to anything and he asked the judge for a continuance and the judge set a another pretrial conference out until Nov 18 ordering that the plaintiff send me statements and the assignment of the debt. Between the conferences I did receive the statements and the assignment of the debt but none of my other discovery. So last week I had my second pretrial conference. I went in a bit cocky thinking I was going to bring up the lack of discovery and at least buy more time. Nope... I got steamrolled. The plaintiff barely said two words while the judge bullied me into admitting the debt was mine. The plaintiff told the judge he sent over statements and the assignment and the judge dug into me. I told him I had no knowledge of the debt, which annoyed the judge. We went back and forth and eventually what it came down to was the judge demanding to know if the statements sent had any payments made on them. They clearly had some payments made, so I told him they did. He then wanted to know about my bank account. At first I told him I didn't know anything about the bank and whether it was mine. The judge snapped that this wasn't a criminal trial, I didn't have a right against self incrimination and demanded to know again the bank account was mine. At this point I was unprepared for any of this and admitted that it was my bank account. He then wanted to know if the amount on the claim against me was accurate. That's when the other lawyer piped up and said that the last statement was the same amount as the amount they were sueing me far. Right then and there. No factual disputes on the case. Judgement for the plaintiff . Could I have done things better? Of course. The biggest thing I would have done differently would be file a motion to compel discovery between pretrials. But I never did because during the first pretrial I watched all the lawyers come in and out on cases up before me. They would bring up potential issues they were having and the judge would simply tell them to "file a motion" and set the matter to later date. So my incorrect assumption was that I would be able to do the same thing at the second pretrial, bring the issue to the judges attention and then file the motion when he told me to. But it didn't get that far. The other big thing is, I was completely unprepared for the second pretrial. I watched the lawyers twice and went in reasonably confident that the outcome would have been me bringing up issues with discovery and getting another pretrial or at least actual trial date. For example I was unprepared to attack the authenticity of the documents sent to me. I could have, perhaps, brought up that there was no affidavits of anyone with personal knowledge to go along with the statements. I doubt the judge would have found that compelling but it would have given me a shot to shut down that whole line of questioning from the judge himself. The reason I type this is because when you search online there are tons of websites that will you just answering the lawsuit or answering discovery will give you a decent shot of winning. Let me tell you, from my experience and reading other stuff on the board. It doesn't work like that anymore in a lot of places. 10-15 years ago it seemed like Judges were far more willing to side with defendants if plaintiffs didn't have really good paperwork or documentation. It's just not like that anymore. I urge anyone getting sued to really do their homework if they choose to fight something like this themselves. Also consider arbitration. At the end of the day I lost. But there are some bright spots. When I first got sued over a year ago, I was in a really bad financial place. I had a lot of things come up in 2017 and the Sheriff knocking on the door was pretty much rock bottom. Even making payments was out of the question. By answering the lawsuit, throwing discovery out, going to two pretrials, I dragged the whole thing out for 11 months. Today I'm not out of the hole, but I am in a better place where actually losing the case is a big annoyance, but not devastating like it would have been a year ago. Plus, they had to pay a lawyer to come to court three times.
  2. 2 points
    If I end up in TX I'll probably be in a band with TR. It's a crazy world. Yet do we all agree that the Gold Standard is Arbitration?
  3. 2 points
    It looks like in Florida the proper Motion is a "Motion for Contempt and Enforcement". “The primary purpose of a civil contempt proceeding is to compel future compliance with a court order. A civil contempt sanction is coercive in nature and is avoidable through obedience.” Gregory, 727 So. 2d at 253 (citations and internal quotation marks omitted); Lewis v. Nical of Palm Beach, Inc., 959 So. 2d 745 (Fla. 4th DCA 2007). http://www.husseinandwebber.com/crimes/public-order-obstruction/contempt-of-court/
  4. 2 points
    These words should be pasted in bold at the top of every forum. SEVERAL of us have been saying this for the past 2 years. It is good to have independent confirmation that the times have changed. I am sorry you got steam rolled but fortunately you handled a lot of it correctly in that you delayed the proceedings and controlled the pace to your benefit even though you lost. That takes time, dedication and fortitude to see it through. You should be proud of that.
  5. 2 points
    I'm sorry to hear this worked out this way for you, but I really appreciate you taking the time to tell your story. I agree, when it comes to certain forums, it can seem pretty one-sided, but you're right--it's not as easy to get a win against JDBs these days. My only shot IS arbitration; if I didn't have that option, I wouldn't try and fight unless there were some clear violations on the JDB side. As it is, I was able to settle a couple of my accounts before it got to the lawsuit stage, which is fortunate because arb wasn't as easy of an option for those. Glad you're in a better place, too! And going in front of a judge isn't easy when it's not something you do every day, like these attorneys. I still feel it's better that you show up and at least try and fight, unlike the majority of people who get sued.
  6. 2 points
    JAMS should accept the case eventually because they take consumer cases either with a contract or with the agreement of both parties (last time I checked), so since PRA has agreed, JAMS should accept. But since OP has nothing in writing from PRA or the court, they will have to just open the JAMS case and send a cover letter explaining that PRA has agreed to this consumer case in place of AAA due to legal issues between AAA and PRA. JAMS will probably email the attorney to confirm before commencing. But the good news here is that OP did a great job in court refuting more bogus claims and got the judge to understand that his ONLY option was to sign the MTC as written or agree to JAMS. That was very well done. Also, PRA has just played their last card in court. If they do nothing with JAMS, OP should have a very good argument that PRA is stalling, attempting to cause them extra time and expense and has no intent on following the court's order to arbitrate and ask for a dismissal. But, I think once the JAMS case is filed, PRA will drop this. They are just using their newest tactic of making the Defendant jump through as many hoops as possible and show up to court time and time again in hopes of catching just one little mistake. Now they've used that up and it didn't work, so they really don't have another play at hand.
  7. 2 points
    So many naca lawyers would beg to differ.
  8. 2 points
    And please Mr. Dean tell us what a valid assignment is.
  9. 2 points
    @pierce IANAL. The J.P. Morgan v Allen case they cited is unpublished and not precendential. However, the case cites that the WI appeals court based this ruling on are an excellent place to start. You need to distinguish your specific case facts from the Allen case, using citations from published WI cases as support. Look for the standards that the highest court used to determine whether arbitration is waived or not. Meyer v. Classified Ins. Corp. of Wis., 179 Wis. 2d 386, 396, 507 N.W.2d 149 (Ct. App. 1993). Kirk v. Credit Acceptance Corporation, 2013 WI App 32, 346 Wis. 2d 635, 829 N.W.2d 522. ¶ 46 It is true that simply filing a lawsuit, see Frank Lloyd Wright Found., 20 Wis.2d at 387, 122 N.W.2d 409, or simply conducting discovery, see J.J. Andrews, 164 Wis.2d at 223-24, 474 N.W.2d 756, before asking for arbitration do not constitute waiver. However, as we noted in Meyer, the issue of whether conduct constitutes waiver depends on the "overall evaluation of the applicant's involvement and conduct up to the time of [the] request [for arbitration]." Id., 179 Wis.2d at 397, 507 N.W.2d 149. In Meyer, we held that the following actions waived arbitration: the defendant failed to file a motion to stay for arbitration by the deadline for motion filing in the scheduling order; the case had been pending a long time; the case had advanced to the "number one jury trial case"; and the defendant had not included an arbitration request in its answer. Id. at 397-99, 507 N.W.2d 149.
  10. 2 points
    The card agreement does not say this at all. There is no requirement to file the arbitration case prior to an MTC. Amex certainly is trying to SAY this, but it is patently false and I would bet anything that there is plenty of state-specific case law to back that up. In other words, do NOT bring up any new issues or arguments. You can ONLY refute what they said in their response. I would include case law cites form your state to back up the fact that t is well established that an MTC may be granted after the start of a lawsuit (in addition to quoting the language in the contract). You title it "Reply Memorandum to Plaintif's *whatever they titled their response*"
  11. 2 points
    @sadinca To all CA members affected by the wildfires, my thoughts and prayers are with you.
  12. 1 point
    This is the new normal on even very small debt cases. This is why I strongly advocate for arbitration - and in fact arbitration is pretty much the ONLY winning strategy left against a debt buyer in every state with the exception of California.
  13. 1 point
  14. 1 point
    When you file an arbitration claim, just think of it as if you are suing the other side. You don't need permission from a court first before suing. A "Billing dispute" is fine, as the claim can be pretty generic or basic at the start. I would try to find something else a little more substantial. You can also state "Fair Debt Collection Practices Act (FDCPA) violations" as a generic claim as well and if you find that one never pans out with a concrete violation, you can remove it and amend your claims any time you want before an arbitrator is assigned to the case (and after one is assigned you can amend with permission from the arbitrator, who almost always will allow it). Also, I would never mention fees in the demand. I always just include a cover letter when sending in everything and my letter is short and sweet, stating that I am filing a CONSUMER arbitration and that the contract states the Respondent will pay the consumer's portion of the fees, so I ask AAA to bill the Claimaint's portion of the filing fee to the Respondent. With AAA you can file by email. I always just fill out the demand form and scan a copy and then attach the PDF of the Demand and the Card Agreement as well as my cover letter to an email. The email address to file in at the bottom of the Demand form. That is my preferred method. I would still send a hard copy by mail of everything I send to AAA (including the cover letter) to the Unifund attorney listed in the letter (Mr. Lasagna).
  15. 1 point
    The problem is that someone could be well informed and still lose because of a judge who is biased against debtors or the state legislature changed the rules in response to court rulings and lobbyists from the debt collection agencies. In this area, law is fluid and what might have worked a couple of years ago will not work anymore. Years ago in Minnesota, the law strictly required for any account stated case that the plaintiff prove the lawsuit amount by showing the account starting at a $0 balance. A herculean task for any JDB. That has changed in the past 5 - 10 years where now, like other states, the plaintiff only has to provide a few statements. In other words, what used to work in Minnesota does not work anymore. That is the same with the assignment theory. I used to work and may work in some areas but in most courts, the judge is not going to allow that defense. In fact, during the mortgage meltdown, some people were discussing the "Show the Note" defense in foreclosures and that worked in some states but here in Minnesota, the judges just glossed right by that (and the MEIRS scandal) and allowed the foreclosures to go through anyways. There is no magic get out of debt free card. Even the arbitration strategy has some caveats on when and when not to use it. There is no one size fits all solution to civil cases and the assignment stuff may work in some courts but is not a strategy that is available to everyone.
  16. 1 point
    I would not bother. Your letter requested validation, which they will know what that means. The DV letter is not going to make or break this case anyway, really.
  17. 1 point
    @olvrtw I am not a lawyer. As I understand this you filed a motion to compel arb. Amex filed a "responsive memoradum" in opposition to your motion. You may file a "reply memorandum" within 14 days, confined to matters as described in Sec. 11-10 b--if these are the correct rules for the court division you're in. Page 203 Sec. 11-10. Requirement That Memorandum of Law Be Filed with Certain Motions (a) A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: (1) motions regarding parties filed pursuant to Sections 9-18 through 9- 22 and motions to implead a third party defendant filed pursuant to Section 10-11; (2) motions to dismiss except those filed pursuant to Section 14- 3; (3) motions to strike; (4) motions to set aside judgment filed pursuant to Section 17-4; and (5) motions for summary judgment. Memoranda of law may be filed by other parties on or before the time the matter appears on the short calendar. (b) A reply memorandum is not required and the absence of such memoranda will not prejudice any party. A reply memorandum shall be strictly confined to a discussion of matters raised by the responsive memorandum and shall be filed within fourteen days of the filing of the responsive memorandum to which such reply memoranda is being made. (c) Surreply memoranda cannot be filed without the permission of the judicial authority. (P.B. 1978-1997, Sec. 204.)(Amended June 12, 2015, to take effect Jan. 1, 2016.)
  18. 1 point
  19. 1 point
    keep in mind image number 6. appears that this debt changed hands quite a few times before ending up in UNIFUND hands. they have to produce all bill of sales from each transaction. there may be on your package, but i didnt see them here.
  20. 1 point
    Hi there, tommarty-- funny thing, I'm in L.A. with my own Unifund CCR LLC / Citibank hell going on, trial got set for late next summer as well and now was searching around the site for that Cali BOP too. Found it! Just wanted to say-- you're not alone :-) Though I'm not sure I'd want to go anywhere near that Chatsworth Courthouse right now-- Topanga Cyn Rd? Mulholland? How about NO :-( And thank you @sadinca Your relentless arse-out-bailing across SoCal continues! So much appreciated!!!
  21. 1 point
  22. 1 point
    First, your Credit Karma and Mint scores are NOT your real scores. They are only an approximation. Second, sometimes they change the algorithm used to compute the credit scores without any notice.
  23. 1 point
    @pierce Your Wisconsin Supreme Court's 2015 decision in First Weber Group, Inc. v Synergy Real Estate Group has what you need to make your argument with Wisconsin and US Supreme Court citations. (IANAL) " In First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34, 361 Wis. 2d 496, 860 N.W.2d 498, our supreme court concluded that the question of whether a request for arbitration was timely is to be determined in arbitration and not in the circuit court, unless the parties have agreed otherwise. See id., ¶¶32, 37, 47-49. In concluding that the timeliness of the request should be determined in arbitration, the First Weber court focused on the distinction between substantive and procedural arbitrability. See id., ¶¶34-46. Substantive arbitrability refers to whether the dispute involves a subject matter that parties have contracted to submit to arbitration, and is generally determined by the court. Id., ¶34. Procedural arbitrability refers to "`issues such as whether certain procedures apply to a particular dispute, whether such procedures were followed or excused, and whether unexcused failure to follow procedure avoids the duty to arbitrate.'" Id. (quoted source omitted). Procedural arbitrability also includes issues relating to whether prerequisites to an obligation to arbitrate, such as time limits, notice, and other conditions precedent, have been satisfied. Id., ¶37. The First Weber court concluded that issues of procedural arbitrability, including timeliness, "are to be resolved during arbitration, rather than by a court, unless the parties agreed otherwise." Id." First Weber Group v Synergy Real Estate paragraph 36: "¶ 36 In an action to compel arbitration, a court's role generally is limited to determining the question of substantive arbitrability, unless the parties specifically agreed otherwise. See Kimberly Area Sch. Dist., 222 Wis.2d at 37-39, 586 N.W.2d 41. Specifically, the court decides "whether the [arbitration] agreement could cover the controversy," not whether the agreement "expressly covers the dispute." Racine Educ. a$$'n v. Racine Unified Sch. Dist., 176 Wis.2d 273, 284, 500 N.W.2d 379 (Ct.App.1993) (citing Joint Sch. Dist. No. 10, 78 Wis.2d at 111, 253 N.W.2d 536). Given the limited role of a court, the court must order arbitration if the arbitration agreement could cover the subject matter of the dispute. Id. at 284-85, 500 N.W.2d 379. Any doubt concerning the scope of the agreement must be resolved in favor of compelling arbitration. Cirilli, 322 Wis.2d 238, ¶ 14, 776 N.W.2d 511*511 272 (citing AT & T Techs. v. Commc'ns Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). " This Kansas Appeal Court ruling cites First Weber v Synergy and has an easy to understand argument you may find helpful: Portfolio Recovery Associates, LLC v. Dixon, 366 P. 3d 245 - Kan: Court of Appeals 2016 "However, where the "contract is silent on the matter of who primarily is to decide `threshold' questions about arbitration, courts determine the parties' intent with the help of presumptions." BG Group, PLC v. Republic of Argentina, 572 U.S. ___, 134 S.Ct. 1198, 1206, 188 L.Ed.2d 220 (2014). As to procedural preconditions to arbitration such as waiver, the United States Supreme Court has stated:
  24. 1 point
    It probably was a magistrate that made a recommendation for the judge to approve (or reject). You'll need to oppose the magistrate's recommendation within the time allowed, and if the judge agrees with you the recommendation will not be approved. In Wisconsin, if the magistrate rules against you, you can automatically appeal to circuit court and try the case ab initio before a real judge. See prior thread here.
  25. 1 point
    Is this the one who was gonna bring in more witnesses than the OJ trial?