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Showing content with the highest reputation since 08/18/2020 in all areas

  1. 2 points
    We all started the exact same way. By the end of this, you will be ONE OF US. Just continue to take a break and re-read everything and be slow and deliberate with both reading and responding. Perfect. Short and to the point, exactly how I do it.
  2. 2 points
    NO Whatever claims you have against them They are asking where the arbitration section is in your card agreement. Just list the page number and section number of the arbitration section. DO NOT CHECK. You don't send it to the JDB, you send it to their attorney who filed the lawsuit against you. I would strongly suggest you read the arbitration post again. All of this is spelled out in there. Also start reading everything carefully for what it actually says. Don't jump to conclusions and end up answering questions that are not asked. Read everything twice at the very least.
  3. 2 points
    The SOL is tolled the minute you are served. Now, you might think that you can run out the SOL by evading service but the plaintiff has the option of filing in court and paying the fees which would also toll the SOL at that point too. Most don't do that however because the court fees in Minnesota are very high (I think over $300 to commence a civil court case now).
  4. 2 points
    @alwayswinning36 referenced MN. In MN, the SOL is tolled when an action is commenced. Commencement begins when a summons and complaint is properly served. From the MN Supreme Court’ Because Heitland was not served on or before August 1, 2014, the statute of limitations expired on Melillo's claim before proper service had occurred. Melillo v. Heitland, 880 N.W.2d 862, 864 (Minn.2016). Cited in an article from the MN Bar Association: In order to properly commence a civil action and avoid having a statute of limitations period expire, service must be proper under Rule 3.01. See, e.g., Mellett v. Fairview Health Servs., 634 N.W.2d 421, 424 (Minn. 2001). https://www.mnbar.org/docs/default-source/sections/2019-20-time's-up-manual.pdf?sfvrsn=10
  5. 2 points
    My suggested changes are above. Additionally, watch the capitalizations for each party, including "This Court" or "The Court". When using The Court in this way, it essentially is referring to the Judge, as he is "The Court", so his title should be capitalized properly. Just little things you want to keep in mind as to not insult a Judge and also show that even though you may be defending yourself, you still understand how to present yourself in court. Also if you have time, I would possibly fit some case law in there. It may already be in your MTC, but anything to bolster your argument that a VALID arbitration agreement means that the court only has the ability to decide on the matter of arbitration and NOT on the merits of the case (i.e. the debt) would be good. As well as any case law that says any genuine dispute is a reason to deny summary judgement would be good to add in.
  6. 2 points
  7. 1 point
    Arbitration Overview Arbitration is a clause that is found in most Credit Card Agreements. Your Card Agreement will state that you may use either AAA or JAMS as the arbitration firm. The Card Agreement may also state something about who pays for arbitration. It may say that "they" (the OC or JDB) will pay all of your filing fees. This means arbitration will cost you a grand total of $0, while the creditor will be billed a minimum of $5,000 to complete an arbitration (and many times that price can climb much higher). However, even if your arbitration clause is silent on costs, the rules of the arbitration firm cap all consumer fees at $200 for AAA and $250 for JAMS. This means you would never pay more than $250 max, while the company will still be paying many thousands to arbitrate. Just due to this cost structure alone, almost all JDBs will refuse to arbitrate. This is why getting your case out of court and into arbitration - especially when facing a JDB - is almost like having a golden ticket to a win. Of course, like everything there is no guarantee. However, the odds are strongly in your favor with arbitration against a JDB. (If you are dealing with an OC - especially a big bank like Discover or AmEx - then your arbitration experience and strategy will be much different than with a debt collector JDB like Midland or Cavalry. More details on differences in taking an OC bank to arbitration are below). Strategies of arbitration: 1. It's not a Bluff, it's arbitration - You are going to ask the court to move your case to arbitration because that is the proper forum per the card agreement. This is not a "bluff" to scare off the JDB. This is a strategy that must be followed through with. It is ok if the JDB does not magically drop the case just at the mention of arbitration. The JDB will continue to work the case as if arbitration was never said, even after you file a Motion to Compel Arbitration in court. The JDB may even pay the initial filing fee of $900 to follow you into arbitration once you start the case. However, soon after that $900 filing fee, the JDB will be sent a first arbitrator retainer bill of about $5,000. This is why you continue arbitration. You are not bluffing, because your case is the same in arbitration as it was in court. You will be making the same arguments and have about the same chance of winning on those arguments (slim, in all honesty). The big difference here is that the JDB must now pay large sums along the way to allow this to happen. So you are not bluffing, you are just moving your case into a forum that they do not like and which forces them to make a cost/reward analysis on whether to continue the case or not. 2. Settlement Opportunities - The goal of arbitration is to create a situation that gives you the best settlement advantage (i.e. settling for $0 with a mutual dismissal with prejudice). There are 3 key points where this comes into play. #1 - After the court grants your MTC and before the JDB pays the $900 filing fee to the arbitration firm. #2 - after the JDB pays the filing fee but before their $5,000 retainer is due (after the arbitrator is chosen). #3 - After the first conference call and before the discovery deadline, just before the hearing where another large retainer bill is due. If the JDB does not reach out first to talk settlement, these are the points I would send an email letting them know I am willing to offer a mutual dismissal with prejudice (minimum). Do not forget to always include an expiration date for your settlement offer. I like to make my offers expire on the same day the next event is due (i.e. a payment deadline for them to pay the arbitration fees, or the discovery deadline date, etc). If they do not agree to your offer, or counter for a higher amount you can not or are not willing to pay, then I just decline the offer and allow arbitration to proceed to the next step until you get to the next key settlement point where I make my same offer again with a new expiration date. 3. Object. Object. Object. - In arbitration, if you do not object to something in writing you lose your right to it. Therefore, anything that happens that falls outside the arbitration rules and especially the supplemental consumer rules, you must object in an email to the arbitrator and CC'd the JDB attorney. Objections not only preserve your rights under the consumer rules, but they also can create side issues that must be dealt with by the arbitrator. The arbitrator's hourly rate to respond to these side issues can really eat up the JDB's $5k retainer before you even get to discovery. Especially if you have phone hearings on these side issues (HINT: always ask for a phone hearing as part of an objection). This causes arbitration to be slow and expensive, which can position you into a better settlement opportunity. 4. Initial Conference Call - This first call once the arbitrator is appointed is where you can set the tone to let the other side know that you are not bluffing and you mean business. They should come away from the call knowing very well that you intend to see this case all the way through to the final hearing (even if you really don't want to). This call is usually fairly quick and informal. It is designed to set the scheduling of discovery and a hearing date. However, you should assert some things during the call that tips the other side into knowing it will not be an easy push over win like they would have in court. I would ask the arbitrator for the other side to submit the name of their witness they will bring to the hearing with personal knowledge of the alleged account. If not already covered by the arbitrator, I would ask for an in person hearing. I would be prepared to give a time-frame when the arbitrator asks how long you will need to present your case at the hearing (I would say at least half a day - aprox 3 - 4 hours). 5. What About an OC? - If you are dealing with an Original Creditor (not a JDB) they may take the arbitration all the way through to the final hearing. Money is far less of an issue with the big banks, and unlike a JDB, these banks are not counting on collections as their sole source of income. Therefore, the OC banks will proceed with arbitration with much less trepidation than a JDB, so you must modify your strategy and expectations. With some OC's, they will never agree to a mutual walk away, however, using arbitration may help you get a much cheaper settlement offer than you would by staying in court. My goal with an OC would be to use the long, slow arbitration process to buy some time to save up a lump sum to offer them for settlement. You can use the same settlment opportunity points as yo would with a JDB, but instead of "mutual dismissal", your offer may be to pay 50% of the debt, for instance (or what you can realistically offer as a lump sum payment) in exchange for a dismissal of their court case against you. If you can't come to an agreement and go to the hearing and "lose" the final hearing with an OC, check your card agreement for any arbitration appeal language. Some OCs like Discover and AmEx have an appeal option written into the contract. The appeal is before a 3-arbiter panel. This means the arbitration process starts all over again, only this time you have 3-arbitrators which triples the bank's costs. This is where arbitration costs can skyrocket well over $100,000. After you file an appeal and get 3 arbitrators appointed, this is likely the best settlement opportunity with an OC. (when they are staring at a new $20k initial arbitrator retainer bill after just paying around $10k - 20k for the first arbitration in total). Starting Arbitration First thing is first - Your court case. If you have been sued, you must answer by the court's deadline. Don't worry about the actual arbitration case for now. You must file your answer and/or Motion to Compel Arbitration with the court before your deadline. (A sample Motion To Compel Arbitration is at the bottom of this post) In court, the important thing to remember is when you are asking for arbitration, you effectively put everything about the alleged debt and account in the back seat. You are saying that the court has no jurisdiction to hear this subject and that it is for arbitration only. Therefore, do not fall into the creditor attorney's trap of trying to continually bring back up the debt and anything related to it. Do not answer their questions prior to going in front of the judge about the debt. Instead you just assert that it is a matter for arbitration and you will be asking the court to grant your MTC. When facing the judge, they may talk to the attorney first who will go into the information about the debt. Just wait for your turn to speak and state that you have a pending MTC that speaks to jurisdiction and that you would like to have that heard first before getting into the merits of the case. Getting a granted MTC is like a golden ticket against a JDB. This should be ALL that you focus on in court. When you file the MTC you essentially put a wrench into the JDB's auto-pilot lawsuit mill. The ONLY question now before the court is whether there is a valid arbitration agreement between the parties (you will show that there is with your card agreement and affidavit). And if there is found to be a valid arbitration clause, then according to case law (from state and SCOTUS), then the court MUST order arbitration. This is the one and only issue that should be covered in court. AFTER the court grants your MTC and orders the parties to arbitrate, then you should move on to actually filing the case in arbitration. Filing your Answer and MTC in Court VERY IMPORTANT NOTE: Before doing anything in court, you should look up (or get a copy from the court) your local court rules! All courts have their own set of rules and it is impossible for anyone on this board to know for certain your specific court's rules. You especially want to read the rules on filing an answer and filing a motion and be sure you are complying with those rules (and time-frames) when you are taking these actions in court. When you are sued, you are required to answer the lawsuit within a certain time-frame. That time-frame is different for each court, according to the rules of that court, but a general time is between 20-30 days. In some courts, you are allowed to file a Motion in place of an answer. However, in this thread, I suggest filing an answer WITH your Motion to Compel Arbitration (MTC). This is not a requirement, but it may change this one element in your case: Filing a MTC only (in place of an answer) allows the Plaintiff to dismiss the case without prejudice on their own before the MTC is ruled on by the judge. However, if you have filed an Answer AND the MTC, most courts do not allow the Plaintiff to dismiss the case on their own and they would need to get your cooperation to file a joint stipulated dismissal. When that happens, you have the right to tell the attorney that you will only agree to a dismissal WITH prejudice (and this permanently puts an end to your case and the alleged debt too). Very Important Note: It is imperative that when you file an answer, you mention arbitration as a defense. In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration. In your answer, after you deny all allegations in the complaint, you should create a new section with the following title: “Affirmative Defense”. Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. Along with your MTC it is generally a good idea to include an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise". A quick google search will show you how an affidavit should be formatted and worded. It does not have to be complicated or special, it just has to be your own words stating you have the correct card agreement. The Affidavit should be notarized before filing with the court. This is the only document that is necessary to notarize, as it is a sworn statement. Having the affidavit is also a good way to counter the most common argument a creditor will make against your MTC, by saying you have the wrong card agreement. Your affidavit is your sworn testimony and the only way to counter this is for the Plaintiff to present a witness with knowledge of the bank's card agreements during the time your account was active. (In other words, it would have to be sworn testimony from the Bank itself, and not the JDB or the attorney's word). Because of this, your affidavit usually eliminates any doubt that the Card Agreement is accurate and valid. This answer and your MTC can be filed at the same time. However, if you are up against the deadline to file an answer, the answer is the most important element to avoid a default judgement. The answer should be a short and easy document to file, so get that done first if pressed for time. You may then file the MTC a week or two later (as soon as you can, but no later than allowed by the court rules). Some courts require that you set a hearing date for your MTC. If your court requires this, make sure you do this at the time you file. In some instances, you may be required to contact the other side's attorney to work out a date for a hearing after you file the MTC. Make sure you know your court's rule on setting up a hearing. Some courts automatically schedule a hearing for you, and in some cases the judge will rule on your motion without a hearing at all. This is a matter of a court by court basis as they all operate in their own way with their own rules. Checking court rules on filing motions is essential. Filing The Arbitration Case Go to the website of either AAA or JAMS, depending on which one your card agreement mentions. Find the document titled "Demand for Arbitration". The instructions for filing are at the top of this Demand form. Remember that you are filing for CONSUMER arbitration, so follow the instructions for CONSUMER cases. When filing arbitration, I very strongly recommend filing some claim against the JDB. Remember that when you ask for arbitration and file it, you have now flipped the roles. YOU are the "Claimant" and THEY are the "respondent". This is essentially like you are now "suing" the JDB, only in arbitration instead of court. Think of it just like that. You would not file a lawsuit against yourself, so do not do it in arbitration. I would never mention THEIR claims against me, nor the debt in any way. Instead, I only file MY claims against the JDB. Do not worry at this stage about the details of your claims because this initial claim is allowed to be changed, added to or dropped at any time before an arbitrator is assigned to the case (and even after, you can still make changes with the arbitrator's permission). If you have nothing very strong with proof against the JDB, I would file with something such as "violations of state and federal consumer debt collection laws" or perhaps, "Violation of the Fair Debt Collection Practices Act", etc. Or even a simple "Billing dispute" will do if you have no violations of law against them. Again, it doesn't need to be more detailed then that at this stage and if your claims never pan out, you have the ability to drop them later (or you may find NEW claims to add if the JDB violates the laws during the ongoing case). When sending in the Demand for Arbitration, I never send money initially. If you are required to pay the $200/$250 consumer filing fee (or any portion of it), then the arbitration firm will tell you to submit that in order to continue. They will never reject your filing, but will send you a case number and request for payment to move forward. Having the case number is key evidence that you filed the case (which may be needed for Court later). If the Card Agreement states that "they" will pay for your filing fee, I will include a cover letter with my Demand form stating that per the Agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS. Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time. I send both CMRRR and retain the green cards. Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail. If there is ever a question about service after I file, I will have the green card to submit as proof if needed. Remember, that this is now YOUR case against the JDB. It will be up to the JDB to file a COUNTER CLAIM in arbitration for the alleged debt. They have a set amount of time per the rules to file a counter claim. Make sure you know the rules. It will not be uncommon for the JDB to not file their counter claim in the allowed time frame. If they file after the allowed time, you must file a written objection noting this and ask for their claims to be stricken as untimely. Always file written objections to EVERYTHING that falls outside the rules in arbitration. When you object, also ask for a hearing on the matter (see arbitration strategies section above). NOTE: It is likey that in such situations, the arbitrator will rule in favor of the creditor almost every time and allow things like untimely filings anyway. Do not let this discourage you. The point is that you filed the objection, forced at least a response from the other side and for the arbitrator to make a ruling. All of this cost them time and money. Even if nothing goes your way on objections, you should continue to make them for every problem you encounter. They add up and they increase the pressure on a JDB (or an OC) to settle. The fact that using this Arbitration method has now reversed the roles (you are the claimant who has brought claims AGAINST the JDB) AND combined with the fact that the Court has granted your MTC, means that the JDB is now stuck between a rock and hard place. They can't just dismiss the court case on their own (they need your agreement for a stipulated dismissal because of the granted MTC) and they also can't drop the arbitration case without your agreement (not only is it not their arbitration case, but yours, but they would also be violating the court order to arbitrate). Because of this, you are now firmly in the driver's seat. The JDB does not want to spend a ton of money and time to arbitrate, but also does not want to violate the court order. This means YOU are in control of the settlement agreement. You can tell the JDB that you will stipulate to a mutual dismissal with prejudice (meaning you will dismiss your arbitration case against them with prejudice and they will dismiss the court case against you with prejudice). You win. Filling Out The JAMS Demand Form The Jams Demand Form is located on the JAMS Website at https://www.jamsadr.com/rules-download/ Tips on filling out the JAMS "Demand for Arbitration Form" are as follows: Instructions: Be sure to read and follow the instructions for filing a case on this first page of the form. Respondent: The respondent is the JDB/OC/Creditor who sued you. They would be listed as the "Plaintiff" in the lawsuit, but are the "Respondent" in arbitration because you are the party filing the case here. Fill out the JDB/OC/Creditor's name and contact information here with the law firm or attorney's information below them in the "representative" section. If you know or can find the attorney or law firms email address to add here, it will be helpful as most of JAMS' communications after the initial filing will be by email. This can also expedite the confirmation of your case being filed in JAMS. Claimant: You are the claimant. Fill out your information in this section and leave the "representative" blank. Mediation in Advance of Arbitration: Do NOT check this box. Nature of Dispute & Claims Sought: This is the section where you can briefly list what claims you have against the creditor. Again, this can be as simple as "Federal and state consumer debt collection law violations", or listing the actual law or statute that was violated, or listing "Consumer debt dispute". Following that with something such as "Seeking Actual, Statutory and Punitive Damages". Again, I would suggest to NOT mention the lawsuit filed against you on this form. Amount in Controversy: Use your best judgement. If you have no violations to claim against them, this could be the alleged debt amount, or it could be the alleged debt amount plus $1,000 for an FDCPA violation, or the debt amount plus $2000 for an FDCPA and FCRA violation. Or perhaps you don't want to list the debt amount at all and just have 10 TCPA call violations and want to claim $5,000 (10 TCPA x $500). Again, use your best judgement. Arbitration Agreement: In this section, I simply spell out where the Arbitration Clause is located. It usually looks something like this; "Section 7 on page 15 of the attached Cardholder Terms of Use Agreement". Request for Hearing: YOUR city, State. This is the location that JAMS will select should an in-person hearing take place. Election For Expedited Procedures: Do NOT check this box. Again, the entire point of this strategy is to make the process slower and more expensive for the other side. Checking this box will defeat that entire purpose. Signature: Sign and Date this section (should go without saying) Consumer and Employment Arbitration: Check the box that says "YES. This is a consumer arbitration." Respondent #2: If you have claims against a second entity, such as the law firm representing the JDB, then you would add them as a second respondent in this section. That is all. You may leave the remaining sections blank and you are ready to file. Again, be sure to double check the requirements to file back on page 1 and follow the instructions carefully. Filling Out The AAA Demand For Consumer Arbitration Form The AAA Demand For Arbitration Form is located at https://www.adr.org/ConsumerForms This form is a little more straight forward and shorter to fill out than JAMS. The instructions for filing are located at the bottom of this single page form. I always use the email address at the bottom of the instructions to send in my AAA case filings. I print off the filled out form and my Arbitration Clause (AAA does not require the entire card agreement, only the arbitration section) and any other item you are subitting with your case. I then scan the documents to a single PDF file and attach it to my email. In the body of my email, I explain that I am submitting a new consumer arbitration case and (if stated in the card agreement) that the contract states that the business is to pay all filing fees, so I request that the business forward all filing fees directly to AAA. If you need help filling in the sections of this form, see the answers to the JAMS form above, as they are essentially very similar. Sample MTC (Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea) MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION. (b) 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. (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT (d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US. (e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT. 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: “A written provision in any maritime 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. 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 . . . " 7. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration. Respectfully submitted this day ________________, 2014 (Your name), Defendant, pro se Sample Proposed Order Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order. Making the Judge's job easier to grant your MTC can't be a bad thing, IMO. Here is a sample Proposed Order you can include in a seperate page with your MTC: ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION Case No. xxxxxxx : COURT OF XXXXXXX COUNTY _____________ (name of plaintiff) VS. Case No. XXXXXXX _____________(your name) The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED: _______ GRANTED / _______ DENIED Further, this case shall be stayed pending the outcome of private arbitration. This _____ day of _________________, 2018 By: ________________________ Judge of the ____________ Court
  8. 1 point
  9. 1 point
    No. There is no 3-person arbitration. This is just the start of your case, and the Admin is asking if you are representing yourself so that they can file it with the Pre-Se Admin staff. I would simply email back and state that I am representing myself pro-se and that this is a CONSUMER arbitration matter. He can object, and you can respond to the objection demanding an in-person hearing citing the consumer rule regarding such. Also state that you intend to ask Barclay's to present a live witness with first hand knowledge of your disputes and on-going issues with your account. Researching the laws and knowing what laws they violated should have been done well before filing the case. Regardless, you must do this NOW. You need to start working on a full brief that clearly lays out what happened, what actions you took and what actions or inaction THEY took and how those actions or inactions violated which laws. Both CA and Federal laws. Some laws to look up would be any California Unfair Business Practices laws (sometimes referred to as UDAP laws), the Federal Fair Credit Billing Act, the Fair Credit Reporting Act, and potentially the overly complicated Regulation Z part of the CFB (Truth in Lending Act). Since it is early, you have at least a month, so I would put together a formal brief and have it ready. The first step is that Barclay's will get a $5k bill from AAA. They will pay it. Then an arbitrator will be appointed and contact you to set a date for an initial phone conference. The initial conference call is to set dates for discovery and the hearing. During the call, ask the arbitrator for permission to submit a formal brief outlining your full dispute. You can ask for 30 days or so to have it submitted if you need more time to complete it. He SHOULD grant that. And he will also give the other side time to file a reply to your brief. After that, you need to figure out what discovery items and questions to send to Barclays to prove that the charge was not yours and that they did not refund any amount you paid in error and start to have documentation to back up your brief that can be presented at the hearing. Because of COVID, I would expect that an in-person hearing will likely be denied, but I would still push for at least a Zoom call hearing.
  10. 1 point
    Not filing a motion, but sending a letter that acknowledges you filed an MTC but they intend to circumvent that is a POTENTIAL violation. Nothing solid, but good enough that I would use it when I filed my JAMS case and let them spend all the money to counter argue that it isn't a violation.
  11. 1 point
    Unfortunately there is no state form for this. You have to properly draft your own and follow the required format.
  12. 1 point
    @momof3kids At the top of the Complaint on page 2 it states : "VERIFIED COMPLAINT ACCOUNT STATED" They've included an affidavit and a statement of the account. This means that you will have to prepare your own affidavit of denial and get it notarized to submit along with your answer.
  13. 1 point
    (I am not a lawyer.) I don't believe you will get very far by claiming improper service. You knew about the summons on the day it was served. Your husband didn't fail to tell you or put it in a drawer where it was forgotten. RULE 2.105 PROCESS; MANNER OF SERVICE (J) Jurisdiction; Range of Service; Effect of Improper Service. (1) Provisions for service of process contained in these rules are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court over a defendant is governed by the United States Constitution and the constitution and laws of the State of Michigan. See MCL 600.701 et seq. (3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.
  14. 1 point
    First you need to find out if they filed for a default judgment. If you didn't file an answer timely you may already be up a creek and forced to settle. Follow what @Brotherskeeper suggests. This is his area.
  15. 1 point
    Yes, it is. I've had a good deal of success dealing emailing the other side's attorney either right before filing an arb claim or right after. Otherwise, all arb would have accomplished for me was delaying the inevitable judgment/wage garnishment. I was able to get reasonable settlements at payments that fit into my budget from some of the most feared OC's (Amex, Citi) by playing the arb card without running up costs. However, since you're dealing with Midland, the one and only settlement you should accept is a mutual walkaway, unless the situation is keeping you up at night and you have the funds to settle. As you should know from reading the board, its rare that a JDB will follow you into arb beyond the initial stages. If you don't mind sticking it out, I'd take the strategy of running up their costs to such a degree that they will have to drop it.
  16. 1 point
    I see. Just because they dismissed without prejudice doesn't mean they will come back filing again, though they could. That is good for you they dismissed it. PRA is a lazy collection agency anyway. Next time if they make calls to your phone, threaten to sue for those calls under the TCPA, but do so in writing. I did and they just deleted the entire reporting and all from my credit reports of the account they were trying to collect.
  17. 1 point
    All due respect to this attorney, but they are wrong and don't understand consumer arbitration. The judge didn't give ANY thought to this. Nor, legally is he supposed to. His only thought was that he was annoyed by a pro-se making him do more than rubber stamp a file by his collector attorney friend. That's all this was. Nothing more was put into it by the judge. Your case laws that you already have is basically your brief. Those same arguments you already made comprise of a brief that explains why, legally, you are entitled to arbitration, and how the judge acted outside of those well established cases. Other than the filing fee, and the time it will take another court to work the process, you have nothing to lose in my opinion. And if $250 is substantially less than the judgement amount now, it might be worth it. But again, if you have other priorities, then you have to weigh that for yourself personally. It's time consuming and that is understandable if you just need to get rid of this quickly by paying it off, then sometime we just have to do that too.
  18. 1 point
    What did this judge's "letter" say? Did the judge grant a stay of the case pending arbitration and include a 30 or 90 day stay for you to file within?
  19. 1 point
    @BV80 @fisthardcheese @BackFromTheDebt I have this brief (less the case law). Can you guys lay your eyes on it? I want it ready in the event you think I should submit it. I have to get in uploaded by Friday. Thank youuuu! 1, 2, and 3 are in correlation with each of the arguments in the plaintiffs brief. Also any thoughts on if the brief is even necessary? I dont want to waive my right to arb if this brief is considered litigating. I will be submitting the Opposition packet regardless. The brief is the question. Defendant, Happy Me representing himself in the case Pro Se, hereby submits the following Opposition to the Plaintiffs’ attorneys Motion for Summary Judgement. RESPONSE TO THE PLAINTIFFS STATEMENT OF STANDARDS FOR SUMMARY JUDGEMENT, EXISTENCE OF UNCONTESTED MATERIAL FACTS, AND STATUTORY OBLIGATION. 1. There is a genuine dispute in the pending motion to compel arbitration previously filed with the court under docket MRS-DC-123456-00. Thereby the “Standard for Summary” judgement has not been met and must be denied. 2. The plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute is for an arbitrator to decide. Due to the presence of a correct and true arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With a genuine dispute present to the plaintiffs’ claim, aside a pending Motion to Compel Arbitration, the plaintiffs’ claim of “Uncontested Material Facts” is inaccurate and a summary judgement must be denied. 3. The plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute is for an arbitrator to decide. Any “Statutory Obligation” to pay the whole, or any part of a claim of debt, would be based on the outcome of binding arbitration. Due to the presence of a correct and true arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With a genuine dispute present to the plaintiffs’ claim, aside a pending Motion To Compel Arbitration, the plaintiffs’ motion to a summary judgement must be denied. Conclusion For the reasons set forth above, the Plaintiffs’ motion for summary judgement is respectfully opposed as there are genuine disputes present and with a binding arbitration agreement between the parties, the matter must be sent to arbitration to settle these disputes as they are not within the jurisdiction of this honorable court.
  20. 1 point
    @Vaness@ Consumer Arbitration Minimum Standards 7. With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.
  21. 1 point
    If it ever comes up in court, I would admit to the fact that at one time in the past, I opened an account with Lending Club backed by Webbank. But I deny that Velocity is the proper party in interest on that account (they don't own the rights), and I deny that I owe any balance at all on the loan. Therefore, I ONLY admit, if I HAVE to, that I once held an account backed by Webbank that is subjected to an arbitration clause. ALSO, you deny that the court has any jurisdiction over the subject account due to the arbitration clause, so the court has no ability or right to even question whether Velocity is the proper party in interest, whether any balance is owed or ANY other information regarding the account. Invoking the arbitration clause means that the court is now limited ONLY to the question of whether a valid arbitration clause exists and if so, the case must be ordered to arbitration.
  22. 1 point
    @Vaness@ See page 5: Demand for Arbitration Form (continued) JAMS Demand for Arbitration Form CONSUMER AND EMPLOYMENT ARBITRATION Completion of this section is required for all consumer or employment claims. CONSUMER AND EMPLOYMENT ARBITRATION Please indicate if this is a CONSUMER ARBITRATION. For purposes of this designation, and whether this case will be administered in California or elsewhere, JAMS is guided by California Rules of Court Ethics Standards for Neutral Arbitrators, Standard 2(d) and (e), as defined below, and the JAMS Consumer and Employment Minimum Standards of Procedural Fairness: ⬜YES, this is a CONSUMER ARBITRATION https://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf
  23. 1 point
    We are getting closer to having this Second Round Sub collection case behind us. Our JAMS Demand for Arbitration was accepted and Second Round Sub, LLC (and Rausch and Sturm) has been contacted multiple times already for the payment of the FULL amount of the deposit, $1750 ($1500 plus our $250). Two weeks ago, I had a 20 minute phone call with one of Second Round Sub’s (or Rausch and Sturm’s) debt collection telemarketers. Near the end of the call this person had said that they would agree to settle the lawsuit, but was not forthcoming with any particular type of settlement. So I just laid all my cards out on the table mentioning that they have the lawsuit against my Wife and that the demand for arbitration has already been accepted with JAMS (and that they were just waiting to receive the $1,750 deposit from them to move forward). I said that I’m not sure where we go from here, but that II would like to settle for a dismissal with prejudice for $0. At this point, of course, she said that she could not authorize that, and it was at this point that our call abruptly ended. It has been roughly two weeks since that call, and I just received an email from a different Rausch and Sturm attorney representing Second Round Sub who has said that, “Second Round would like to enter a mutual release, which should resolve the pending lawsuit with a dismissal”. I'm not sure what to expect, but I am definitely hoping to see those two beautiful words "with prejudice" included in this proposal. Fingers Crossed.
  24. 1 point
    @ReclaimMyTime no worries. I’ll keep you posted on what transpires. Good luck.
  25. 1 point
    Just an update. Before I had a chance to file any paperwork the creditor voided the judgement, took it off the credit report, and sent my daughter a nice refund check. Steve
  26. 1 point
    That judge deserves a take-down from the appeals court. But, you’re correct that an appeal is more difficult to prepare and takes more effort and time. Don’t feel badly if circumstances in your life right now don’t allow you to take that time or if you’re tired and just don’t have the energy Just do what is right and best for you at this time. That’s all anyone can do.
  27. 1 point
  28. 1 point
    I will add, look at your credit reports. See if there is anything you can counterclaim such as misrepresentations of the debt, incorrect or inaccurate reporting. You won't want to use that just yet in court if there are any. You would want to wait to see what happens with the motion to compel arbitration brings. I looked at mine relating to a debt claim from an original creditor and it is RIDDLED with inaccuracies and such.
  29. 1 point
    Hiii All! I got a letter from judge granting arbitration! @fisthardcheese What is the next step?
  30. 1 point
    For loans? No. Use the first statement. It is their job to produce the contract not yours. I had a loan with OneMain and they all have arbitration. DO NOT use this. The Justice Courts in TX are getting in on the mediation game as a money maker and docket clearing method but calling it arbitration. Using this verbiage will land you in their version of mediation at a HUGE expense and you will settle nothing but lose the money. If it gets that far. The goal is that RSIEH dismisses and Velocity walks away. There is a good chance they do that after being served with a copy of your motion. They do have arbitration with AAA in their contracts. The problem is they also have a small claims exemption. Here is case law from another state outlining it: https://www.natlawreview.com/article/watch-out-exclusions-to-arbitration If you want to use the arbitration option you have to word this effectively without out right lying. Otherwise you need to be prepared to defend the suit. The worst that happens is the motion is denied and you have to defend it anyway. Have you tried searching email archives from when you took out the loan to see if you still have the email with the contract?
  31. 1 point
    You will lose. Even if your financial situation were that you only collect SSI or disability which cannot be garnished the court can still grant a judgment in their favor. While unfortunate, financial distress is not a defense to not paying a loan that you signed a contract for. No. OneMain does everything digitally and can provide them with all the documents you signed to attain the loan, application, payments, statements, as well as the proof of deposit to your bank account of the funds loaned. An affidavit showing transfer of the account from OneMain to Springleaf i.e. assignment. Copy(s) of the loan documents, possibly your application, and last two or three statements up to default. Justice Court does not require evidence be attached to the complaint when it is filed. If you want arbitration you cannot engage in discovery or you waive your right to arbitration by participating in the discovery process. If the MTC is denied then you get permission from the court to do discovery before there is a trial. Arbitration. Velocity/Springleaf has backed down every time. File the general answer. Invoke arbitration as a defense. If/when they claim it doesn't apply make them produce the loan documents showing it isn't an option.
  32. 1 point
    Any dispute must be specific. For instance, you might dispute the accuracy of the balance. Did the account become delinquent in 2015? The 7-year reporting period is based upon the date of first delinquency. That is the date the account became delinquent and was never again brought back to a current status. In the event the accuracy of information is verified, you could sue for the CRA’s delay in responding, but be prepared to prove that you have standing to sue. In other words, you would have to show how the delayed response injured you. Without proof of an injury, a technical violation can be deemed insufficient to show standing, and the lawsuit would be dismissed. Proving an injury could be especially difficult if the information in the entry is accurate. You would bear the burden of proving the CRA’s delayed response was a result of negligence or willful delay. Note that if you proceeded, the only way you could receive statutory damages is if you prove the CRA willfully delayed its response. If you can only prove negligence, you would be required to have actual damages.
  33. 1 point
  34. 1 point
    I got one of my biggest victories by changing phone numbers back in the landline days, but that took some incredible malfeasance on the part of an OC. Let’s just say illegal skip tracing can be detrimental to collecting from a savvy consumer.
  35. 1 point
    A. Rare, but is occasionally happens. Usually if the case is dismissed, they don’t want to bother with it again. B. They might, but probably not. There are some JDBs that will buy the almost impossible to collect debts, usually at a very steep discount. Most of the time those new JDBs won’t sue, but some will. In other words, most likely this case is over with. But you can’t be 100% sure until the SOL has passed. One thing you need to be aware of: Many arbitration clauses say to use the laws of the state in which the card was issued, such as Delaware. If the state in which the card was issued has a 3 or 4 year SOL, and your state has a 6 year SOL, there is a way to fight cases that come back from the dead after their home stare SOL has passed. File in arbitration before they sue, and insist on using their SOL. That worked for me once, although it was an enormous amount of work. I also basically swamped their lawyer with paperwork he wasn’t really able to handle.
  36. 1 point
    The way to reduce hear is to become informed. Learn the rules of the court so that you know if you have to preemptively start arbitration to avoid small claims court or if you can wait until a case is filed. Learn how arbitration works. You need to replace fear with information and when you do that, you will find that there is nothing to be scared of. Even if they are not calling, don't hide your head in the sand because you may find that it is too late to do something when they finally do act.
  37. 1 point
    ***Update Dismissed WITH prejudice!!!!! Thank you so much to everyone that helped me through this!!!! Especially @fisthardcheesefor your time and advice. Now that the case is dismissed, can I have it removed from my credit report?
  38. 1 point
    Unifund agreed to arbitrate due to the fact that it claims to have purchased the account and is the owner of that account. By purchasing the account, it is subject to the terms and conditions of the account which include arbitration. It cannot change the cardmember agreement. It cannot claim that you owe the balance which is based upon those terms and conditions in the cardmember agreement and then claim the agreement does not apply to them. There should be language in the agreement that states the account can be assigned or sold and that the assignee shall be entitled to the same rights under the agreement as Barclays. In other words, Unifund agreed that it could demand arbitration (same right as Barclays). If it can demand arbitration, so can you. Simply because the account was sold doesn’t mean you no longer have rights under that same agreement.
  39. 1 point
    You are not required to respond to them. If this were me, I would just file the MTC and send them a copy. If you contact them in response to this email, they will just ask you to settle for payments under a stipulated judgement. Once the MTC is filed and granted, you will have the leverage to make that settlement much more in your favor.
  40. 1 point
  41. 1 point
    @OregonWhoops Oregon courts granted motions to compel arbitration in the following cases: https://scholar.google.com/scholar_case?case=1796841370424922363&q=industra+matrix+joint+venture&hl=en&as_sdt=4,38 https://scholar.google.com/scholar_case?case=10265046001483489116&q=dex+media&hl=en&as_sdt=4,38#r[3] I would also show the clerk section 3 of the Federal Arbitration Act. “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.” You are filing a motion allowed according to the Federal Arbitration Act. The clerk does not have the right to deny you the opportunity to file that motion.
  42. 1 point
    Great information dear author. Keep it up!
  43. 1 point
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  45. 1 point
    Hello All, i m very glad to visit this forum as i got sufficient details and i would like to get more of it in future. thanx celina
  46. 1 point
    This is the text of the PRIMER on Credit Repair. admin's note: it is CRITICAL to follow the steps in this guide in the EXACT order given. No skipping on down!
  47. 1 point
  48. 1 point
    I keep repeating myself a lot on this so I'm making this sticky to explain why you should NEVER use the on-line dispute system for tradelines. You can use it for correcting addresses and personal information but that's about it. Besides the obvious problem that you have NO PROOF of your dispute that you can take to court as prima facie evidence to establish your case, there are other issues that come up. When the FCRA was amended by the FACT Act, they put in a section for "Expidited Dispute Resolution" (Section 611a(8)) aka the on-line dispute system. If you read that part you will notice this sentance: "the agency shall not be required to comply with paragraphs (2), (6), and (7) with respect to that dispute" if they delete the tradeline within 3 days. Paragraph 2 is the part that requires the CRA to forward your dispute and all related documentation you provide to the furnisher. Paragraph 6 is the part that requires the CRA to provide you with written results of the investigation. Paragraph 7 is the part that requires the CRA to provide you with the method of verification on request from the consumer. Now where this is a problem is that the law isn't specific enough to say permanently delete or supress. The CRA can "soft delete" it for 30 days and then the tradeline can reappear when the furnisher reports it again in the next 30 day cycle (Because the CRA isn't required to tell the furnisher you disputed it at all). So this leaves a mechanism in place where the consumer thinks they are getting a delete, but it is only temporary. Since the furnisher doesn't know it was deleted, they can re-report it and the CRA will happily put it right back on your report...and there is nothing in the law to stop it.* Further, you loose your rights to request MoV and loose the hard-copy of the investigation results you would otherwise get if you did the dispute by mail; Leaving all evidence of the dispute tightly locked in the CRA's hands...where you are essentially assured that they will fight any and all attempts to subpeona it in a court action. *The 5 day notice letter for reinsertion is only if the CRA puts the item back on your report as a result of an investigation taking longer than 45 days to complete. The CRA does not have to give you a 5 day notice of reinsert if they complete their "expedited investigation," delete the tradeline, and the furnisher re-reports it later.
  49. 1 point
    According to this federal website which appears to be part of GSA, any discharged debt CAN NOT show any payment history. http://www.pueblo.gsa.gov/cic_text/money/personalfin/lesson6.htm WHAT TO LOOK FOR ON YOUR CREDIT REPORT After you request your credit report — and be sure to request your reports from each of the Big Three repositories — allow 7 to 21 days to receive it. After you receive all of your reports, it is a good idea to follow these steps: 1. Determine the date all account information was reported. 2. Verify the current status of the accounts. Once a debt is discharged, verify that the credit report indicates a discharged status. It is important to note that payment history on a discharged account should also be removed. 3. Verify that all accounts that were discharged by your bankruptcy plan show a zero balance. 4. If there is a written comment about bankruptcy on any creditor entry, it should show that the debt was included in a Chapter 7 Bankruptcy
  50. 1 point
    Ponized:::MOV stands for Method of Validation I have never used a MOV and had very good luck disputing again within the next month. I know some people say 2-3 months from disputes but it's like hit and miss when calling about inquiries . Sometimes they come off sometimes they don't. I had two accounts moved from negative to postive after re-disputing after the prior month being validated--Go Figure!