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Showing content with the highest reputation since 06/08/2020 in all areas

  1. 2 points
    Okay everyone, First of all Happy 4th of July! Just to follow up, We were scheduled for a case management conference on 6/29/20. On the 25th We were notified that they have asked for dismissal of the lawsuit. A win! yesss!! But I believe I need to now ask for dismissal with prejudice correct? Because they asked for dismissal without prejudice. If that is the case can anyone point me in the direction of how to go about getting a dismissal with prejudice? Thanks again!!!
  2. 2 points
    Rausch, Sturm, Israel, Enerson & Hornik is historically the laziest law firm in Texas. In the vast majority of cases they completely stop doing anything upon receipt of discovery. It is highly unlikely that it will ever get to the point of an actual trial. They do not need to enclose any "evidence" when they file the law suit. It is good that you filed your general denial but don't just sit and wait for something to come to you. You need to decide if you want to fight them in court or go through arbitration and immediately get the upper hand and get things rolling.
  3. 2 points
    Technically, IMO, if the defendant files a motion to dismiss and the plaintiff fails to respond, which was the case here, the motion should have been granted. But you got a stay, which is a victory. File the arb with JAMS.
  4. 2 points
    My rule is whenever I hear from a collection agency, I send a DV letter. Always. Especially since there is already a suit.
  5. 2 points
    You can want something all you want, that does not mean it is not going to happen. The way I see it, the lawyer is correct. The only 3 options you have are to let them garnish your paycheck, try to settle the debt, or declare bankruptcy. You are not going to get this vacated because this is a proper judgement which has not reached the statute of limitations for judgements. Here is why I think the lawyer is correct: You were properly served You went to court and presented your case and the judge found against you or you signed a consent judgement as a settlement. Either way, you lost and a judgement was issued against you. If the original debt SOL had passed, you should have brought that up in 2007, not now. You usually have 30 days to appeal a ruling against you. You did not do that. The SOL for a judgement in Florida is 20 years so that has not passed yet. I see nothing wrong with the judgement or the manner in which it was issued. If you try to get it vacated, the judge is going to laugh at you so don't waste your time. If this is not what you want to hear, then you are in the wrong place because we will tell it like it is without any nonsense and in this case, you cannot do anything at this point except pay the debt, including the 13 years of interest which I sure has been added. The debt collector does not have to offer a favorable settlement to you because they hold most of the cards and you really have no leverage here.
  6. 2 points
    No, you have not gone too far in litigation for arb, especially if you object to their discovery. See the case Land v. Byrider for an analysis of waiving arb rights by going too far in a court case. Be sure to ask for a stay pending arb, as the arb law is very strong on this. It mandates a stay if the case is subject to arbitration.
  7. 2 points
    I would recommend contacting the Clerk for the Court of Appeals, Cynthia McCoy, at (804) 371-8428. If this leads nowhere, the next step up would be the Office of the Executive Secretary, Karl Hade, at (804) 786-6455. This office handles the training of all judicial branch employees, so they should want to know if employees are denying litigants their right to file an appeal. Luvmybabas... I'm so sorry you've been dragged through this mess because of a judge who couldn't be bothered to look at your agreement. Start making your calls early tomorrow. The office for the appeals clerk opens at 8:15 A.M. If you can't reach anyone there, call the Executive Secretary's office. Leave messages and be sure to tell them you have a filing deadline that day and the clerk for the district court has refused to file your appeal. It's also important to keep a log of your calls, who you left messages for, who you spoke with, and what was said.
  8. 2 points
    You’re very kind. We all post here because we’ve been through what you’re going through. Paying it forward can include any act of kindness whether it’s helping people here, elsewhere, donating to a charity, etc. Helping people like you makes this worthwhile for all of us.
  9. 2 points
    Again, I see this as an over-complication of a simple issue. The contract clearly states you are only responsible for fees required by the AAA rules. The AAA rules are very clear that you owe $200 and nothing more UNLESS found to be frivolous. Nothing about the act of starting an arbitration case for a genuine dispute can be frivolous. It's their own contract. THEY wrote it. Too bad if they don't like it being used in the rare case it does not benefit them now.
  10. 2 points
  11. 2 points
    @MikeS This Ohio thread has a lot of useful information and links to other Ohio threads, including @MikeB35 cases.
  12. 2 points
    The judge you appeared before didn't even allow you to present your agreement to the court. Don't allow the act of an A-hole judge to discourage you from moving forward on this.
  13. 2 points
    To be clear, @Luvmybabas filed a motion to compel arbitration using the basic template modified to include Virginia law. She downloaded a 2017 (year of default) version of the Comenity Victoria's Secret agreement from the CFPB archives. Here's the body of the motion: 1. That on or about Dec. 20 2019, Plaintiff filed its Complaint. 2. Plaintiff did not attach to the Complaint a copy of the applicable agreement its claim is based upon and did not provide a copy to Defendant in its Bill of Particulars response. Defendant obtained a copy of the applicable 2017 Comenity Bank Victoria's Secret Credit Card Agreement from the Consumer Financial Protection Bureau (CFPB) database archive at https:// www.consumerfinance.gov/credit-cards/agreements/. (Accessed on May 31, 2020.) Under the Credit CARD Act of 2009, Comenity Bank is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached as Exhibit A. 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Comenity Bank Victoria's Secret Credt Card Agreement. (see a true and correct copy of the Agreement attached as Exhibit A. 4. The parties are bound by the Credit Card Agreement. The Agreement's Arbitration Provision states among other things: a.) "Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party." b.) "Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief)." c.) "Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM." d.) "Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and not by any state arbitration law." 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides "A written provision in any matitime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract." 6. Code of Virginia, § 8.01-581.02. Proceedings to compel or stay arbitration, Section A provides“A written provision in any maritime transaction or a contract evidencing a transaction involving "A. On application of a party showing an agreement described in § 8.01-581.01, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration. However, if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue of the existence of an agreement and shall order arbitration only if found for the moving party." 7. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 8. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Comenity Bank Victoria's Secret Credit Card Agreement and to stay proceedings pending contractual arbitration. I certify under penalty of perjury that the foregoing statements are true and correct. Respectfully submitted this day June 2, 2020, XXXXX, Defendant, pro se.
  14. 2 points
    It is unfortunately very common in small claims courts to get judges or magistrates who really don’t know or care about the law and just do what they feel like doing. Yours is not the first or even the tenth time we have seen this happen. Appeal. I don’t know the proper appeal process in your court. Some jurisdictions have an automatic appeal. Others require a cause. In either case, you have a cause. The judge violated a US Supreme Court ruling. You need to look up the Concepcion v. ATT case where the Supreme Court ruled that arbitration clauses must be followed. 1. Find out the appeals process 2. Appeal. Many of the people who post here have had exactly the same situation, and have gotten the MTC upon appeal. You also have a cause of action against Midland and the attorney for lying about the contract in court. Clear violation of the FDCPA.
  15. 2 points
  16. 1 point
    There is only one filing fee in arbitration regardless of how many claims. Their counter claim will be free. It might. If they are reporting it as a closed revolving account I would argue that is inaccurate. Are all of the dates and amounts the same across all 3 reports? That is where I used to find a lot of violations. JDBs would report a dollar off on 1 of the 3 reports, or a date would be a day or two different on 1 of the 3. Before being considered a violation, however, you must dispute the error with the CRAs. If you must file in JAMS before getting the results back from your CRA disputes, then you can file as FCRA violations and amend as needed. If none of that pans out, just use "credit card dispute". It's not as strong, but this is a JDB in JAMS so it isn't going anywhere anyway.
  17. 1 point
  18. 1 point
    I disagree with this one. Unless the OP started in arbitration before the case was filed. It is doubtful that a MTD would be granted, while an MTC would probably be granted, unless the judge ignores the law. One possibility is a combination of: 1. An answer, with lack of venue as an affirmative defense 2. A MTD for improper venue, and 3. An MTC. The idea is if the MTD is not granted (and it almost certainly won't be), the MTC is filed as an alternative to the MTD. I wouldn't file a second MTD, though, at least not as a standalone filing.
  19. 1 point
    If it were me personally, i would file a MTD lack of jurisdiction on the subject matter based on this portion of the agreement: By accepting this Agreement, unless you opt out by following the instructions below, you agree that either you or we, at our sole discretion, can choose to have any dispute arising out of or relating to this Agreement or our relationship resolved by binding arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that dispute in court or to have a jury trial on that dispute
  20. 1 point
    Please note that this is not a good idea in every court.
  21. 1 point
    And you would have had the same result. The courts in VA are very creditor friendly and this outcome was virtually guaranteed.
  22. 1 point
    I feel for you. I also admire you for not giving in.
  23. 1 point
    @BV80 @fisthardcheese @WhoCares1000 @LaneBlane Even though a current Virginia statute (Va. Code § 8.01-581.016) allows an appeal on a denied motion to compel arb and stay the case, as well as FAA 9 U.S.C. § 16(a)(1), @Luvmybabas could not persuade the District Court clerk, her supervisor and a judge to agree that an interlocutory appeal on a denied MTC and stay is allowed. They all claimed only a final judgment can be appealed and the clerk refused to accept the appeal form. Tomorrow is the 10-day deadline for her to file an appeal and she will lose her right to do so. OP went today to show the clerk the laws, even pages from the current General District Court manual that descrbe this appeal, and a Virginia Supreme Court case that affirms her right. Any thoughts or suggestions would be helpful. https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf APPEALING AN ORDER TO COMPEL OR STAY ARBITRATION In federal court, federal law, such as the prohibition on interlocutory appeals (28 U.S.C. § 1291), the final judgment rule (28 U.S.C. § 1292), and the FAA (see Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Appealing an Order to Compel or Enjoin Arbitration (6-574-8707)) limit when a party may appeal an order compelling FAA-governed arbitration. An order granting or denying a request to compel arbitration is not considered a final judgment. Under the FAA, however, litigants may immediately appeal federal court orders denying arbitration, but not orders favorable to arbitration. US appellate courts therefore have jurisdiction over orders: Denying requests to compel and stay litigation pending arbitration (9 U.S.C. § 16(a)(1)). Granting, continuing, or modifying an injunction against an arbitration (9 U.S.C. § 16(a)(2)). Under the VUAA, like the FAA, a party may immediately appeal an order denying arbitration, but not an order favorable to arbitration. Therefore, a party may immediately appeal an order: Denying a request to compel arbitration. Granting an order to stay arbitration. (Va. Code § 8.01-581.016; see also Seguin v. Northrop Grumman Sys. Corp., 672 S.E.2d 877, 879 (Va. 2009)).
  24. 1 point
    The attorney know the court is gonna grant your motion to dismiss, however, the last sentence he states, if the court grants your dismissal that the plaintiff, request a stay of the case for 60 days. That's where you ruin his day, with Capital One v. rotman. He will still have to initiate the arbitration clause, its the plaintiffs burden.
  25. 1 point
    They are only required to correct the errors not remove the trade line. One trap that consumers fall in to is sometimes the trade line will be removed while the creditor sorts out the facts. It CAN be re-inserted and that is not a violation. Be VERY careful of that post you quoted. They are engaged in the credit repair business which is largely a SCAM.
  26. 1 point
    Anything you can point me to for me to start reading? I'm reading one for Michigan right now but you just helped someone through this in Ohio recently right?
  27. 1 point
    I can see on the PRA suit that the attorney has filed a brief in opposition. It doesn't look like the clerk has uploaded the document yet. I'll update the thread when I have it.
  28. 1 point
  29. 1 point
    I was going to say that I would rather be in arb. where the rules are less strict and I will be more comfortable and less nervous?? what do you think?
  30. 1 point
    I think you are reading too much into it. Every single arbitration case I have had, the other side ALWAYS claims it is "frivolous" simply because that is the ONLY way that fees can be reallocated in AAA. They simply always throw it at the wall in hopes that it sticks. It wont. As part of your response, just state that you have complied with all aspects of the court and the contract with PRA and that in no way can this be considered "frivolous". Of course, me being myself, I personally would add in for my own amusement something like "if Respondent honestly believes the actions of Claimant are frivolous, then Claimant would ask Respondent why they would ever create or involve themselves in a contract that is patently frivolous against themselves from the outset?" I could not disagree more strongly. The only way we advise using arbitration on this site is to follow the letter of the contract AND well established case law. There is no way that following those two things by the book can be considered frivolous in any way.
  31. 1 point
    If this case is still open and only the MTC was denied at this point, then you need to file what is called an "interlocutory appeal". This is what allows you to appeal the MTC decision only without having to wait until the full case is over. The interlocutory appeal allows a higher court to look only at the MTC issue and may be completely different than the normal appeal rules and fees.
  32. 1 point
    Of course they are deemed admitted if one decides to fight the case in court and does not answer them. I was under the impression that this OP wanted to use arbitration. What little I know about arbitration I have always understood that if they participate in discovery then arbitration could be rendered null and void. They should answer each item with "Objection- Defendant has elected private contractual arbitration per credit card agreement" or something along that line. No it will not just automatically go to arbitration. As I said follow @fisthardcheese's instructions that @Brotherskeeper posted earlier.
  33. 1 point
    Soft pulls are allowed to review collection accounts. For instance, a JDB might review accounts that it is considering purchasing. Soft pulls are not seen by anyone but you and have no effect on your credit score.
  34. 1 point
    It doesn’t matter that you didn’t have an agreement with the plaintiff. Read your cardmember agreement. It will contain language that shows the account can be assigned or sold and that the terms, conditions, and rights transfer to the new owner. Because of that language, you do have an agreement with the plaintiff. In a lawsuit in which arbitration is not made an issue, the plaintiff would be required to prove it owns the account in question. In your case, the plaintiff is not going to claim the cardmember agreement does not apply. The reason is because to do so would be the same as claiming it did not purchase the account. It cannot claim it has a right to the balance but does not have to abide by the terms and conditions of the account it claims to have purchased.
  35. 1 point
    if your reserving your right to pursue discovery when they initiate arb, which they most likely wont, you don't need to get it notarized because your not gonna answer the question until sometime i arb if they even file an arb claim.
  36. 1 point
    No, it will not suffice for answering their discovery. The General Denial is the answer to just the lawsuit itself to prevent you from being slapped with a default judgment. File the General Denial immediately then decide whether you want to defend yourself through arbitration or as a pro se in the court. If you choose arbitration do not answer the discovery items as that could invalidate the arbitration. Scroll up to where @Brotherskeeper posted @fisthardcheese's instructions on how to initiate arbitration.
  37. 1 point
  38. 1 point
    There might not be a bond on this appeal since no judgement has been made yet on the debt but there will be court fees (that is true in any state where you appeal a decision). Why you are appealing is the decision to deny the Motion to Compel. You are appealing that because: The CFPB has made a rule requiring all credit card companies to submit to them all credit card contracts which they put on the their website for consumers to use. That is where you got this contract with the arbitration clause and is a valid copy of the contract, The plaintiff simply said that the contract did not have an arbitration clause but did not provide a copy of the contract. Under the US Supreme Court ruling, when a contract contains an arbitration clause, the state courts do not have jurisdiction over the case and the parties must arbitrate. You will then have to prove the above facts. If the appeals court does not side with you, you go to trial. If they do side with you, they will probably remand to the lower court requesting that the judge reconsider the motion in light of the arguments made at the appeals level. The plaintiff still can get a copy of the contract without the arbitration clause in the meantime. Looks like the filing fee is $50 in Virginia so that is not too bad. If you have a some money (say about $500), I would offer to settle the debt and see if they bite.
  39. 1 point
    This page may be helpful with your appeal: https://law.lis.virginia.gov/vacode/8.01-581.01/ http://www.courts.state.va.us/courts/gd/resources/manuals/gdman/chapter06.pdf An appeal granting or denying a motion to compel arbitration must be noted in writing within ten days using district court form DC-475, NOTICE OF APPEAL –CIVIL. Writ tax and costs are collected based on “General District Appeal – No Monetary Damages”. The writ tax and costs shall be posted within 30 days from the date of judgment. § 8.01-581.016. Appeals.
  40. 1 point
    Here's a page from Fairfax County that may be extremely helpful. It appears to outline the process, including the bond: https://www.fairfaxcounty.gov/generaldistrict/civil/appeals For Non-Residential Unlawful Detainer cases: A judge will determine the amount of bond, if any, needed to file an appeal. It also says the DC-475, Notice of Appeal form, is available at the Clerk’s Office for noting an appeal. I'm still trying to find the updated version online.
  41. 1 point
    OK, quick question, did the judge simply deny a motion to compel arbitration or did the judge find for the plaintiff on the debt and issue a judgement? If the later, you probably have to post a bond. If the former, you might not have to post a bond because no monetary judgement has been issued yet.
  42. 1 point
    @Luvmybabas This has a lot of information about your court. DISTRICT COURT JUDGES’ BENCHBOOK DISTRICT COURT JUDGES’ BENCHBOOK SECTION II(B) – CIVIL PROCEDURE ASSOCIATION OF DISTRICT COURT JUDGES OF VIRGINIA 2019 EDITION BENCHBOOK COMMITTEE Chapter 6. Appeals Virginia Code §§ 8.01-129, 16.1-106, -107. A. Appealable Orders Virginia Code § 16.1-106 speaks of any order being appealable, not just final judgments. However, the Supreme Court has held that only “final orders or judgments” may be appealed from a district court to circuit court under § 16.1-106. Ragan v. Woodcroft Village Apts., 255 Va. 322, 497 S.E.2d 740 (1998) (holding that the denial of a motion for a new trial is not appealable to circuit court), Architectural Stone, LLC v. Wolcott Ctr., LLC, 274 Va. 519, 649 S.E.2d 670 (2007) (a final order constitutes one that disposes of the whole subject of the case and gives all relief contemplated). B. Time Periods 1. The appeal must be noted in writing within ten days of entry of the order or judgment being appealed. Va. Code §§ 8.01-129; 16.1-106; Supreme Court Rule 7A:13. 2. Note: See Va. Code § 16.1-106.1 in regards to requirements for withdrawing appeals. D. Appeal Bond and Fees Va. Code § 16.1-107 and § 16.1-112 1. The amount of the appeal bond shall be set by the judge or clerk or be in an amount sufficient to satisfy the judgment and must be posted within thirty days of the date of the order or judgment being appealed to the circuit court. a. No appeal bond is required of a plaintiff unless the defendant has asserted a counterclaim. d. No indigent person shall be required to post an appeal bond in a civil case except trespass, ejectment, unlawful detainer against a former owner based upon a foreclosure against that owner and actions involving the recovery of rent. 2. The appealing party shall pay the writ tax, costs and fees for service of process of the notice of appeal in circuit court within thirty days of the date of the order or judgment being appealed to circuit court. 3. Payment of the writ tax is jurisdictional. Hurst v. Ballard, 230 Va. 365, 337 S.E.2d 284 (1985).
  43. 1 point
    Unless things have change, I believe every Texas case starts with a "General Denial" as the initial Answer - like there's a form with a big General Denial box to check. Everything else is then handled through motions. Interesting case, as this law firm is the one that one than folds to pretty much any answer and PRA is currently following to arb in a couple of cases.
  44. 1 point
    @texasrocker Can you offer some assistance here? If @MegnPrice decides to use the arbitration strategy, does Texas require the existence of an agreement to arbitrate be listed as an Affirmative Defense on the Answer to the Complaint? The Comenity Bank/ Victoria's Secret Credit Card Agreement has an Arbitration Provision: I. Arbitration and jury trial waiver For Covered Borrowers under the Military Lending Act (MLA) Effective October 3, 2017 the MLA prohibits us from requiring you to submit to arbitration as a condition of extending credit. For additional information see Section J below. A. Jury trial waiver TO THE EXTENT PERMITTED BY LAW, YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF A LAWSUIT ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL WAIVER SHALL NOT AFFECT THE ARBITRATION PROVISION BELOW (INCLUDING THE JURY TRIAL WAIVER CONTAINED THEREIN). YOU AND WE EACH REPRESENT THAT THIS WAIVER IS GIVEN KNOWINGLY, WILLINGLY AND VOLUNTARILY. B. Notice and cure Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to this Agreement (as further defined below, a "Claim"), the party asserting the Claim (the "Claimant") shall give the other party (the "Defendant") written notice of the Claim (a "Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent in writing to the address we have in our records (or any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to Comenity Bank, PO Box 182436, Columbus, Ohio 43218-2436 (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests. C. Arbitration provision READ THIS ARBITRATION PROVISION CAREFULLY. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE. 1. Your Right to Reject: If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives the name of each Cardholder and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within thirty (30) calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit. 2. Parties Subject to Arbitration: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party. 3. Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 (the "Class Action Waiver"), the last sentence of Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. 4. Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration. 5. Choosing the Administrator: "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver. 6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. 7. Prohibition Against Certain Proceedings: IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION. 8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to. 9. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award. 10. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request. 11. Arbitration Result and Right of Appeal: Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. Reference in this Arbitration Provision to "the arbitrator" shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Paragraph C.8. above. 12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement. 13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal. 14. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled). >>>To learn about using the arbitration provision to get the case out of court, please read Fisthardcheese's pinned thread on this strategy.
  45. 1 point
    Bench trial held in February 2020. Sued by PRA to collect $8107.11 for a CapOne Cc. Just received the judgement, case dismissed with prejudice. Such an amazing feeling it is to learn the law, apply new complex knowledge and defeat PRA. Absolutely could not have done this without the advise, information and experiences found here. Especially thankful to BV80 for suggesting specific Idaho Supreme Court case law. It was a hard confusing battle...it wasn't until I beat their summary judgment that I began to actually understand what I was doing. Object object object because...in the end the court ruled evidence offered by Portfolio Recovery was inadmissible hearsay and lacked foundation. I think what really sealed the deal was "The billing statements offered in Exhibit 1 lack foundation and are inadmissible under the business records exception". Turns out that even with 902 (11) you cannot upload someone else's business and call them your own. At least in Idaho. Big 'ol hug to Bv80 and Harry Seward for donating your personal time here, answering my questions and pointing me to the right direction. I will certainly Pay it forward. My husband was wrong, big bad attorney's don't always win.
  46. 1 point
    Ok. I'm going to try to file a response. I just assumed because the Trial Court rule on the Motion to Correct Error only states a timeline for the initial reply, but nothing for an additional reply, that I couldn't reply, but I'll get one started. In their response, they even added a copy of the credit card agreement that I included with my MTC, so obviously they are not disputing that it's the correct agreement. And according to 34-57-2-3(a), when a party refuses to arbitration(clearly they are), the court must compel arbitration. So clearly I can't do anything until the court tells me that I can.
  47. 1 point
    So, I filed my Motion to Correct Error, basically citing the above referenced statute and stating that all proceedings should have been stayed until the court either denied or compelled arbitration. The plaintiff responded and stated that the case was stayed due to my MTC, and that I did not properly invoke arbitration. They stated I failed to contact an arbitration firm and that my inaction does not indefinitely stay the case. How do the courts look at this? I feel like it would have been unwise of me to start the Arbitration process without an order from the court compelling arbitration. I could have spent the $250 initial fee for arbitration, and the court then subsequently denies the motion, and I'm out of that cost. Maybe I'm wrong in this? I don't believe I can reply to their opposition of my Motion to Correct Error.
  48. 1 point
    After conducting some more research, I believe my best option for my next step is not filing a notice of appeal, but filing a motion to correct error with the trial court. In this motion I will cite 34-57-2-3(d) stating that upon my application for an order on arbitration, any proceedings should have been stayed. It appears this is the best practice to use before appealing, as all appellate cases I've read, the appellant has filed a motion to correct errors prior to appealing. This will also extend my deadline for appeal by another 30 days from when I file. If my motion to correct errors is denied, then I will have another final order that can be included in the appeal.
  49. 1 point
    Thank you for this! I will file my Notice of Appeal on friday. After that its a waiting game. Once the clerk of my court gets everything to the clerk of the court of appeals, I'll have 30 days to file my brief. That will be the next big step. I'll keep this updated. Thanks for your help.
  50. 1 point
    @fisthardcheese @Harry Seaward @BV80 @Brotherskeeper @Pericles @Norfolk&Wayman @Goody_Ouchless Just got a email from Midland's attorney agreeing to the settlement offer @fisthardcheese told me to use. DISMISSED WITH PREJUDICE!!!!! I will celebrate more when it's in writing and in my hands. I will post a picture of it when I get it. THANKS to everyone on this forum for the help. Couldn't of done this with out you.