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Showing content with the highest reputation since 05/18/2019 in all areas

  1. 3 points
    Let it go? What else would you do? When JAMS bills the full filing fee to the other side, there is nothing to "let go" of - or do at all. I'm confused as to what you think this is? Not that odd, actually. I said be patient, and it turned out to be textbook.
  2. 3 points
    @Brotherskeeper @fisthardcheese @BV80 @Harry Seaward Well just got the email from JAMS telling me who the arbitrator is. It's Mr. Bradley Winters Esq. Plus they sent a bill to Midland's attorney for $5000. So let's see if they will pay this one. Thanks again for all the help. Will keep you all informed on what happens.
  3. 2 points
  4. 2 points
    I once talked to the leading consumer lawyer in my state. He learned about the arbitration strategy from people on CIC. That lawyer was skeptical at first, but now recommends the strategy for some of his clients.
  5. 2 points
    Just FYI, most lawyers will say things like "why on earth would you want to take this to arbitration???" because they don't understand the concept of forcing a dismissal due to the arbitration fees for PRA being more than the debt is worth. So just be prepared for them to try to talk you out of it.
  6. 2 points
    Both. They have legally complied and disclosed that you cannot be sued and they cannot report the debt. NOTHING in Federal or State laws prohibits them from sending a letter saying "pretty please pay us" as long as they disclose the legal status of the debt. Ignore them or send a cease and desist letter. If you send the cease and desist and they continue collections THEN you have an FDCPA violation and can sue them.
  7. 2 points
    One of the tactics I once used: There was a time when the arbitration agreement changed for the better after I defaulted on a card. I sent a letter to the OC, who still owned the account, CMRRR, stating that I accepted all changes to the credit card agreement. That way I was able to use the current agreement rather than the agreement in effect at the time of default. Let’s just say that bank never collected a penny from me afterwards.
  8. 2 points
    As of 5/18/2019, due to Chase Bank's merger with JP Morgan, all Chase credit cards have had their Card Agreements updated an an arbitration clause has been added back in. Previously Chase had removed arbitration as among the few OCs who did so following the NAF lawsuit blowback. However, with JP Morgan Chase now fully merged, the arbitration clause is back in. Some of the highlights include: Choice of AAA or JAMS: Under this agreement to arbitrate, the party filing a Claim must select either Judicial Arbitration and Mediation Services ("JAMS") or the American Arbitration Association ("AAA") as the arbitration administrator. You can learn more about these organizations online, at the addresses provided below. Each of these organizations will apply its code of procedures in effect at the time the arbitration claim is filed. Chase will pay all fees: We will pay any costs that are required to be paid by us under the arbitration administrator's rules of procedure. Even if not otherwise required, we will reimburse you up to $500 for any initial arbitration filing fees you have paid. We will also pay any fees of the arbitrator and arbitration administrator for the first two days of any hearing. If you win the arbitration, we will reimburse you for any fees you paid to the arbitration organization and/or arbitrator. All other fees will be allocated according to the arbitration administrator’s rules and applicable law. Although under some laws we may have a right to an award of attorneys' fees and expenses if we prevail, we agree that we will not seek such an award. You choose the type of hearing (meaning they should NOT be able to object to your choice per this agreement): If your Claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or in an in-person hearing. Any in-person hearing will take place in the federal judicial district that includes your address at the time the Claim is filed, unless the parties agree to a different place. Contractual Right to appeal to a 3-arbiter panel: A party can file a written appeal to the arbitration administrator within 30 days after an award is issued. The appeal will proceed before a panel of three neutral arbitrators designated by the same arbitration administrator. That panel will consider all legal and factual issues anew, and make all decisions and awards by majority vote based on the documents and arbitration record without a hearing.
  9. 2 points
    You're plenty 'sharp' - that's not the problem. You're a "thinker", is the problem. Ask me how i know. 😁
  10. 2 points
    I would absolutely use arbitration over court, but I would prepare to fight them just as you would in court (or more so). If it were me, I would search my credit report and phone records with a fine tooth comb to find any potential violations to use in counter claims when I file AAA and I would demand up front an in-person hearing and a request for full discovery. I would make sure AAA does not use their fast tracking "documents only" default for this one.
  11. 2 points
    Aside from a miracle, arbitration is your best bet, but with the way things have been going, i wouldn't be at all surprised if they come along for the ride.
  12. 2 points
    Then there is no need to send anything about costs. They did not bill you. This is the part where you sit back and use your patience. No need to keep emailing and pestering JAMS. JAMS moves slow and they will do what needs to be done on their time now. Let it happen. You have everything you need for court if they want an update.
  13. 2 points
    I just want to thank everybody who helped with my husband's case Especially Fisthardcheese. The case was dismissed without prejudice. I wanted it dismissed with prejudice but I'm just happy it's over.
  14. 2 points
    Agreed. This is not the outcome you wanted, but it has its advantages. You had two years to recover your finances. You are now in about the situation you would’ve been two years ago if you had made the same agreement with them then. Except you had two years to deal with your money issues. In any case, not having a judgment in court is a very big deal. I am currently working in the banking industry. Having an unsatisfied judgment on my record would destroy my career. At the time of my financial woes, I had no idea I would ever work in banking. Not to mention, I finally refinanced my house about 18 months ago An unsatisfied judgment would have been fatal. I had a satisfied foreclosure judgment on my record which delayed my refinance by several years The moral is, you never know when having a judgment on your record will be horrible.
  15. 2 points
    Don't over think it or try to guess their reasons why they do this or that. Just go with the facts here. The facts are that they need your stipulation in order to dismiss and they clearly want to dismiss the case. This gives you a perfect opportunity to tell them you are willing to work with them on a dismissal with prejudice. Make the email very concise, simple and to the point. The worst case is they say no, and then you can choose to accept the dismissal without or to continue and force the MTC hearing and then try to settle again for what you want after MTC is granted. But I feel that the odds are in your favor to get the dismissal with prejudice.
  16. 2 points
    I agree. I believe this was discussed in the past based upon rules of civil procedure. If one’s court rules state that the filing of an answer precludes a voluntary dismissal without the permission of the court or the defendant, it is best to file an answer along with a MTC arbitration.
  17. 2 points
    It's a stipulated dismissal, correct? They want you to sign it and send it back? I would email the attorney and say you received their stipulated agreement offer and that you would be willing to stipulate to a dismissal with prejudice. I'm not sure why everyone thinks this is over. It's just a settlement negotiation. You are free to tell them what your terms of stipulation are. But forget about this "removal from credit report" nonsense. I NEVER advocate for that, as a dismissal with prejudice can be used to handle that later and it just muddies the water at this point. You have them on the ropes. They have to get a stipulated agreement from you to dismiss because you answered and filed an MTC. They can not just drop it by themselves and this is why they are asking you to sign this. Counter.
  18. 2 points
    Good job. You got the hardest part of this behind you now. I would use JAMS rather than AAA, personally, if the card agreement gives you the choice. Go to JAMS' website and download the "Demand For Arbitration" form. This is basically the same as a "complaint" form you would file in court. The instructions on how to file are on this form (last time I checked it requires sending everything in duplicate to JAMS including the Card Agreement). I would include 2 copies of the court's granted MTC as well and I would make and include simple and short cover letter (only one copy) that states you are demanding a new consumer case via court order and that the enclosed contract between the parties states that the company will pay the consumer's filing fee and ask that JAMS bill the company for the consumer's portion of that fee. I would send it by certified mail for proof to the court if needed that you filed the timely. Also send 1 copy of everything you send JAMS (including the cover letter) to the attorney.
  19. 1 point
    Kooky stuff happens some time. For any of a million reasons, that judge could have had a problem with that particular plaintiff on that particular day.
  20. 1 point
    It’s not a conflict of interest. Notaries have nothing to do with the content of an affidavit. Their only duty is to confirm that the person who made the statements contained in the affidavit and the person who signs it are one and the same.
  21. 1 point
    I happen to think that this lawyer still somehow thinks that AAA is part of the court process and not a separate private entity and she continues to believe that the papers filed in court are also on the desk of the arbitrator currently.
  22. 1 point
    Aw, dangit. I missed his post, and I'm in the mood for a throwdown.
  23. 1 point
    DEBT VALIDATION MYTHS The following are based upon misconceptions regarding the Fair Debt Collection Practices Act (FDCPA) U.S.C. § 1692 *NOTE* An initial communication is the first communication received by a consumer in regard to a debt. If that communication does not contain the name of the current creditor, amount of the debt, and the 30-day notice (1692g), the debt collector must send that information within 5 days. The following "myths" refer to initial communications that DO contain the information in 1692g(a). FAIR DEBT COLLECTION PRACTICES ACT 1692g - Validation of debts (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. (b) Disputed debts If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor. (c) Admission of liability The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer. (d) Legal pleadings A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). (e) Notice provisions The sending or delivery of any form or notice which does not relate to the collection of a debt and is expressly required by title 26, title V of Gramm-Leach-Bliley Act [15 U.S.C. 6801 et seq.], or any provision of Federal or State law relating to notice of data security breach or privacy, or any regulation prescribed under any such provision of law, shall not be treated as an initial communication in connection with debt collection for purposes of this section. MYTH #1 A consumer can send a debt validation letter to a debt collector at any time, and the collector must respond. That is not true. According to the FDCPA, a letter requesting validation must be sent within 30 days of a debt collector's initial communication. An initial communication is usually the first debt collection letter which contains the 30-day notice found in § 1692g(a) of the FDCPA. Once a debt collector receives a timely validation request, it must cease collection efforts until it validates the debt. It cannot send more letters or make phone calls requesting or demanding payment. In the event that it is reporting the debt to the credit reporting agencies, it cannot update the collection entry EXCEPT to report that the debt is disputed. Reporting the fact that the debt is disputed is a requirement in § 1692e(8) of the Act. MYTH #2 A debt collector is required to respond to a timely validation request within 30 days of the receipt of the request. False. The 30-day requirement is placed on consumers. While a consumer must send a validation request within 30 days of the first collection letter that contains the 30-day notice, a debt collector can take as long as he chooses to respond. However, he cannot attempt to collect again until he provides validation. Note that after receiving a timely validation request, debt collector does not have to validate if he chooses to cease collection efforts. He may never respond at all, or he may send a letter informing the consumer that the file on the account is closed. If debt collectors were required to respond to validation requests in 30 days, they could not cease collection efforts. They may provide the requested validations and continue their debt collecting activities, or they may cease all collection activities. See Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1031 (6th Cir.1992). Under the FDCPA, a debt collector who receives a written dispute of a debt from a consumer need not verify the debt at all, but can instead cease efforts to collect the disputed debt. See Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.1997). Once a consumer disputes a debt, the debt collector has a choice whether to verify the debt or cease collection efforts. 15 U.S.C. § 1692g(b); see Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 940 (9th Cir. 2007). MYTH #3 In the event that a consumer has never received a collection letter from a collection agency, a collection entry (also known as "tradeline" or "TL") on a consumer's credit report can be considered an "initial communication" triggering a consumer's right to request validation under 1692g(b). While some courts have ruled that reporting to credit reporting agencies is a "communication" as defined by 1692a(2), ("the conveying of information regarding a debt directly or indirectly to any person through any medium"), to date, no court has ruled that reporting to credit reporting agencies is an "initial communication". Some courts have ruled that an entry found on a credit report does NOT constitute an "initial communication". Robinson v. TSYS Total Debt Management, Inc. Dist. Court, D. Maryland, 2006 "The above allegations identify two candidates for the 'initial communication' that is required to trigger 15 U.S.C. § 1692g.[6] The first candidate—'when Defendant communicated the debt to Plaintiffs credit report'—cannot support a claim under the FDCPA because it is not a communication with a consumer. See 15 U.S.C. § 1692g(a) (identifying 'initial communication" as "with a consumer in connection with the collection of any debt')." Pretlow v. AFNI, Inc. WD Virginia, 2008 "Plaintiffs have not alleged that they received any communications from Defendant which would form the basis of a debt validation claim. Their claim is based, rather, on communications between Defendant and certain credit reporting agencies. Section 1692g is therefore inapplicable on the facts pled." Toth v. Cavalry Portfolio Services, LLC. Dist. Court, D. Nevada, 2013 "As it is undisputed that no notice was provided, the only question remaining is whether Defendant had an "initial communication" with Plaintiff, the consumer[1]. Plaintiff argues that Defendant communicated with Plaintiff 'using the credit reporting bureaus as a vehicle' (#9; 4:8-9). In other words, Plaintiff argues that by reporting Plaintiff's past-due account to the credit reporting agencies, Defendant communicated with Plaintiff via those agencies." "Because Defendant never had an 'initial communication' with Plaintiff, Plaintiff has failed to state a claim upon which relief can be granted." Berberyan v. Asset Acceptance, LLC, Dist. Court, CD California, 2013 "In opposition, plaintiff argues that defendant 'communicated' with her through its alleged reporting of a debt that appeared on her credit report, but plaintiff offers no authority that supports such an expansive reading of the term 'communicated.' Opp'n at 6. Defendant must do something more than allegedly place notice of a disputed debt on plaintiff's credit report to trigger its disclosure duties." Gonzalez v. Midland Funding, LLC, Dist. Court, ND Texas, 2013 "Plaintiff fails to allege any facts that can show there was ever an initial communication by defendants to plaintiff, and does not allege that he responded to any such communication within a thirty-day period. It appears that plaintiff may believe that his unsolicited letter demanding validation from defendants qualifies as an initial communication under § 1692g; however, the initial communication is an attempt by the debt collector to collect a debt, not an attempt by a consumer to challenge a debt. " Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado, 2014 "Plaintiff attempts to argue that 'the reporting [to the credit agencies] of the account the first time would be an initial communication'; however, the Court is not persuaded by self-serving statements lacking any supporting authority." Perry v. Trident Asset Management, LLC, Dist. Court, ED Missouri, 2015 "However, the crux of the dispute here is not whether reporting debt is a 'communication' or 'debt collection activity,'but rather whether it is a 'ommunication with a consumer'that triggers § 1692g(a)'s validation notice requirements. Plaintiff cites no cases finding that reporting to a credit agency is a communication with a consumer, and the Court has found none." Danehy v. Jaggee & Asher, LLP, Dist. Court, North Carolina, 2015 "Accessing a consumer report does not constitute an initial communication with a consumer as contemplated by § 1692g(a). Without knowledge as to when, or if, plaintiff would request his consumer report, defendant J&A could not have intended to communicate with plaintiff indirectly through TransUnion." Friend v. Financial Recoveries Limited, Dist. Court, MD Pennsylvania, 2017 “Here, as noted above, Plaintiff's 1692g(a) claim appears to hinge upon Financial Recoveries' alleged reporting of information concerning Plaintiff to Credit Reporting Agencies. (Doc. 5, pp. 4, 6-7). However, a plain reading of sections 1692a and 1692g reveal a number of deficiencies with Plaintiff's section 1692g(a) claim. For example, a Credit Reporting Agency is not a ‘consumer’ under the FDCPA because, in part, it is not a ‘natural person.’ 15 U.S.C. §§ 1692a, g. Thus, an alleged communication with a Credit Reporting Agency fails to activate the notice requirements found in section 1692g(a) which serve as the basis for Plaintiff's section 1692g claim.” Leato v. Alliant Capital Management, LLC, Dist. Court, ND Illinois, 2015 “But it is frankly absurd to link Section 1692g (a) and its required within-five-day notices with a ‘soft pull’ communication that a debt collector has sent only to a credit reporting agency (and not to the debtors themselves) for the sole purpose of obtaining a consumer report as a purely informational matter.” Williams v. LVNV Funding, LLC, Dist. Court, D. Colorado 2014 “Plaintiff attempts to argue that "the reporting [to the credit agencies] of the account the first time would be an initial communication" (Response, ¶ 26); however, the Court is not persuaded by self-serving statements lacking any supporting authority.l Bagramian v. Legal Recovery Law Offices, Inc, Dist. Court, CD California 2013 “Defendant must do something more than allegedly make an inquiry into plaintiff's credit report to trigger its disclosure duties.” MYTH #4 A debt collector must provide a copy of a signed contract to validate/verify a debt . Debt collectors are not required to provide a copy of a signed contract or credit card application. The Fourth and Ninth Circuit Courts of Appeals have ruled that "debt collectors do not have to vouch for the validity of the underlying debt." The requirement to provide a "contract" would require proving that the debt is valid. Chaudhry v. Gallerizzo, 4th Circuit Court of Appeals Contrary to Appellants' contention, verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999). We agree with the district court that "[v]erification only requires a debt collector to confirm with his client that a particular amount is actually being claimed, not to vouch for the validity of the underlying debt." Chaudhry at 406. Clark v. Capital Credit & Collection Services, Inc., 9th Circuit Court of Appeals We adopt as a baseline the more reasonable standard articulated by the Fourth Circuit in Chaudhry. At the minimum, "verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed." Clark v. Capital Credit & Collection Services Inc., 460 F.3d 1162 (9th Cir.2006)(citing Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999)). Myers v. Midland Credit Management, Inc., M.D.Pennsylvania (2014) "Plaintiff's dispute letter to Midland requests 'a copy of the contract which proves the amount of the alleged high balance which you are claiming. If you do not have a contract, then please provide specific and detailed alternate proof of the alleged high balance.' Again, the FDCPA does not require that Midland comply with this request. Instead, the statute simply requires a debt collector to confirm the amount of the debt and the identity of the creditor, and relay that information to the debtor." Roseborough v. Firstsource Advantage, LLC, M.D. North Carolina (2015) "Here, Plaintiff contends that Defendant violated its duty to verify by providing nothing other than copies of a couple of alleged statements with no signed verification or accounting of the alleged account or copy of any signed contract or agreement. Plaintiff requests too much. The caselaw clearly repudiates Plaintiff's additional verification demands." See Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999)("[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt."). Smith v. Encore Capital Grp. Inc., E.D. Wisconsin (2013) "However, his allegations include that the April 2, 2012, collection letter failed to include a signed verification or accounting of the alleged account and failed to include a signed contract or agreement. Smith's allegations regarding this claim are not plausible. He points to no statute or caselaw indicating that verification of a debt must be signed or accompanied by signed contracts." Ritter v. Cohen & Slamowitz, LLC, E.D. New York (2015) "Accepting the Plaintiff's allegations as true, in response to her disputing the Debt, the Defendants provided credit card statements covering a period of two years. Those statements, while not providing an itemization of charges, clearly contained the Plaintiff's name and home address, and included a charge-off in the amount of $918.78 — the amount the Defendants claim is owed. District courts within this Circuit have repeatedly recognized such evidence as sufficient to satisfy the verification requirement under the FDCPA, so that the Plaintiff's allegations, even if true, do not allege a violation of the statute." Breen v. Howard Lee Schiff, D. Connecticut "Here, Schiff's September 13, 2010 letter which enclosed a copy of the Plaintiff's Discover Card Statement unequivocally satisfied its obligation under the FDCPA to verify the debt. Indeed, the Statement indicated that the amount being demanded is what the creditor claimed was owed. Moreover, the Statement served the purpose of the verification requirement by ensuring that Schiff was not dunning the wrong person or attempting to collect debts which the consumer had already paid. It appears that Plaintiff is under the misimpression that the Statement included in Schiff's September 13, 2010 letter did not fulfill the verification requirement and that Schiff was obligated to do more. However, the FDCPA does not require the debt collector to keep detailed files of the alleged debt and the information contained in the Statement more than satisfied the verification requirement of Section 1692g(b)." Coats v. Mandarich Law Group, LLP E.D. California (2014) "The documents included with the letter identify the original creditor as Bank of America, N.A., and the current owner of the debt as defendant Cach. It also identifies the original and current account numbers and provides the account balance on the placement date ($4,857.71). Id. Also included with the letter is a Bill of Sale and Assignment of Loan, reflecting that the loan was purchased by Cach. Also appended to the letter are credit card statements from the original creditor, reflect the amount plaintiff allegedly owes. Furthermore, defendants included a certificate of assignment signed by an authorized agent for Cach which certified that the information provided was accurate." "Contrary to plaintiff's contention, this response was MORE than adequate to satisfy the verification requirements." Jacques v. Solomon & Solomon, PC - Dist. Court of Delaware (2012) "Plaintiff also claims that Northland violated the FDCPA by failing to prove that it had a contract with Capital One to collect the debt. Plaintiff does not cite any provision in the FDCPA that requires a collection agency to prove that it had a contract with the creditor, and the Court is likewise unable to identify one." Fassett v. Shermeta, Adams & Von Allmen, PC , W.D. Michigan (2013) "One main issue before the court is whether defendants violated § 1692g(b) by failing to verify the disputed debt. Plaintiff contends that he is entitled to, among other things, ledger statements, contracts, and proof that defendants are licensed to collect debts in Michigan. Defendants contend that they are not required to keep and send "detailed files" of the alleged debt for verification or validation purposes. Contrary to plaintiff's contention, § 1692g(b) does not require defendants to produce exhaustive documentation in support of the creditor's claim." "Here, defendants' October 3, 2011 letter in response to plaintiff's request for verification identified the creditor as Capital One, identified the credit card account, identified the current balance due as $12,522.89, stated that defendants represented Capital One, and referenced the enclosed documents which validated the debt pursuant to § 1692g." "In summary, defendants October 3, 2011 letter confirmed in writing the identity of the creditor and the amount which plaintiff owed as of the date of the letter. Nothing more is required under § 1692g." Tilmon v. LVNV Funding, LLC - District Court of Illinois (2014) "The record reveals that the letter provided: the reference number for the account; the account number; name of the current creditor; name of the debtor; name of the original creditor; last date of payment; balance due; date account was opened; and, date account was charged off." "Upon review of the record, the Court FINDS it is evident that BHLM provided sufficient verification and did not violate Section 1692g(b)." Himes v. Client Services, Inc. - District Court of New Hampshire (2014) "Furthermore, Himes's belief that validation requires disclosure of the signed loan agreement, a sworn accounting ledger, and affidavits attesting to the current status and validity of the debt grossly overstates a debt collector's obligations under the FDCPA. To sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded; a credit card statement indicating the delinquent balance serves that purpose." Daniel v. Midland Funding, LLC - E.D. Michigan (2016) "Moreover, as the Magistrate Judge concluded, Midland's verification of the debt in the form of those 18 itemized credit card statements permitted Plaintiff to 'sufficiently dispute the payment obligation.'" See Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014). Goodwyn v. Capital One, NA - M.D. Georgia, (2015) "When United Recovery received Goodwyn's dispute letter, it contacted Capital One regarding the dispute. In response, Capital One sent documentation of the debt to United Recovery. That documentation stated the account number and contained a calculation of the deficiency balance, which matched the amount United Recovery sought to collect. Based on the documentation, United Recovery confirmed the amount of the debt, to whom it was owed, and by whom, and sent that information to Goodwyn with supporting documentation. United Recovery thus satisfied its obligations under Chaudhry." See Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999). Glowacki v. Law Offices of Howard Lee Schiff, PC, District of MA (2014) "Therefore, to sufficiently validate a debt, the debt collector need only demonstrate that the creditor has provided some evidence that the debtor owes the specific amount demanded. Here, the credit card statements provided by Schiff indicating the delinquent balance serve that purpose." MYTH #5 A debt collector must provide a detailed accounting of a debt in order to show how the balance was calculated, i.e. "explain and show me how you calculated what you say I owe." That is not required. [V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). This provision is not intended to give a debtor a detailed accounting of debt to be collected. Maynard v. Cannon, 401 F. App’x 389, 396 (10th Cir. 2010). The Eighth Circuit Court of Appeals confirms that the verification requirement is satisfied where the debtor "could sufficiently dispute the payment obligation." See Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1004 (8th Cir.2011). Proof could consist of: 1. A credit card statement (such as a charge-off statement) that matches the balance claimed.by the debt collector. 2. A list of charges that total the amount claimed in the intial communication. MYTH #6 A debt collector must provide proof that it is licensed to collect in one's state in order to validate a debt. That is false. Due to the fact that not all states require that a debt collector be licensed to collect a debt, such a requirement could not be part of the validation requirement. Even if a debt collector is required to be licensed in a particular state, it has nothing to do with validating a debt. Read the provided court rulings. In the event a state requires a debt collector to be licensed, an unlicensed collection agency might be in violation of another provision of the FDCPA, (perhaps 1692e) but it would not be in violation of the validation section of that Act. (1692g). MYTH #7 An initial communication can validate a debt. That is such a ridiculous claim. 1692g(a) requires that an initial communication or a letter within 5 days of that initial communication include the name of the creditor to whom the debt is owed and the amount of the debt. If an initial communication could serve to validated a debt, it would render 1692g(b) to be meaningless. Why would a debt collector be required to "cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt" if the initial communication served to satisfy the validation requirement in 1692g(b)? This takes us to the next myth. MYTH #8 A validation response from a collection agency can merely repeat the information provided in the initial communcation without providing documentary evidence of the debt. While courts are divided as to what constitutes proper validation , they certainly have not ruled that validation may be accomplished by merely repeating the information required by 1692g(a). In Chaudhry (see Myth #3), the Fourth Circuit Court of Appeals ruled that verifying a debt "involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt". However, documentation had been provided by the debt collector in that case. Allowing a debt collector to validate a debt by merely repeating the information in its intial communication would be the same as allowing the collector to say "because I say so". It would be contrary to the language in 1692g(b) and would render that subsection meaningless. MYTH #9 A consumer should reference sections of the FDCPA and FCRA (Fair Credit Reporting Act) in a debt validation request in order to put a debt collector on notice that he is aware of his rights. It is not necessary to include any references to the FDCPA and FCRA in a dispute and validation request letter. Simply disputing and requesting validation is enough to show that a consumer is aware that he has certain rights. In addition, it's not the consumer's responsibility to inform a debt collector of the debt collector's responsibilities that are outlined in either Act. If the debt collector is unaware of his responsibilities, it's his problem. MYTH #10 Upon receiving a summons and complaint, a consumer can request validation, thereby preventing any further action by the plaintiff until the debt has been validated. As has been stated, a validation request is valid only when sent within 30 days of an initial communication. A summons and complaint is not an initial communication that would trigger the 30-day validation period. 1692g(d): (d) Legal pleadings A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). MYTH #11 A consumer can include both a request to validate a debt and a demand to cease and desist communications in a timely debt validation letter which would serve to prevent a lawsuit due to the fact that the "cease and desist" would prevent the debt collector from responding to the validation request. That is incorrect because a consumer can waive his rights. Requesting validation could be considered consent to allow the debt collector to contact the consumer strictly for the purpose of validating the debt. Clark v. Capital Credit & Collection Services, Inc. - 9th Circuit Court of Appeals, 2006 Focusing on that level of sophistication, we will enforce a waiver of the cease communication directive only where the least sophisticated debtor would understand that he or she was waiving his or her rights under § 1692c(c)." "Applying our newly articulated waiver standard to the facts before us, it is obvious that even the least sophisticated debtor would recognize that Mrs. Clark's request for information constituted consent for Hasson, Capital's attorney, to return Mrs. Clark's telephone call in order to provide the specific information she requested." MYTH #13 A validation letter requesting specific documentation and citing the FDCPA and FCRA will put a debt collector "on notice" that a consumer is serious and knows his rights. That could depend upon the debt collector. A recently formed collection agency that has little experience might be intimidated by such a letter. However, seasoned debt collectors will most certainly NOT be intimidated. In that instance, it would merely depend upon how serious a particular agency is about collecting a debt. Requesting documentation and stating demands that are not required to validate and setting time limits not provided for in the FDCPA shows a debt collector that you do not know your rights. There are a number of websites that provide validation letters that request documentation and state demands that are not necessary to validate a debt. As previously provided, signed contracts, detailed files, and collection agency licenses are not required. The suggested letters may demand that a debt collector respond in 30 days. As has been shown in Myth #2, a debt collector is not required to respond in 30 days. Those letters may also demand that the a debt collector cease collection activities for 30 days after sending validation because the consumer requires 30 days to investigate information validating the debt. Nothing in the FDCPA or rulings by courts supports that demand. Debt collectors have seen those internet letters. They know what is NOT required to validate a debt (such as a signed contract and license to collect). All such a letter shows is that you can copy and paste a letter you found on the internet. As previously stated in Myth #9, it's not necessary to reference various federal laws nor is it necessary to describe documentation that should be provided. It's not the consumer's responsibility to inform the debt collector of laws and what is required to abide by those laws. That is the responsibility of the debt collector. I cannot emphasize that statement enough. The best validation letter is a simple one. In your own words, simply state that you dispute the referenced debt and request validation. Nothing else is required of the consumer under the FDCPA. (See 1692g(a) and 1692g(b)). As I previously stated, it's the collection agency's problem if it doesn't know the laws.
  24. 1 point
    I hope that I'm not doing the happy dance for nothing.... I showed up at court an hour early. Sat in my car and read the forums here until 30 minutes before my court time. Walked in, figured out where I was supposed to be and went and sat in the empty courtroom. I was working on paperwork for my job and a man approached me and asked if I was BitsyM. I replied "yes". He asked if we could speak in one of the meeting rooms. He told me that he was not the Plaintiff, but the Plaintiff had sent them on their behalf. He had a settlement to "dismiss with prejudice". No money. No future litigation. Just "dismissal with prejudice". I knew that was ultimately what I desired, second choice was arbitration. 10 minutes later, it was signed by the judge and I was on my way. Hopefully, I wasn't mixed up about what I wanted. Attached is what I signed. Please confirm that my happy dance can ensue.
  25. 1 point
    Arbitration may be an excellent option for you. Are you able to log into your account at lendingclub.com? If so, you can access your loan documents to find out what the arbitration provision is for your particular loan. (Save a copy of the loan agreements to your hard drive so they're easy to refer to.) You can also do an email search to see if any documents were emailed to you at the time the loan was initiated. The moment one of your payments is late, the attorneys could file the judgment paperwork against you. Keep this in mind if you agree to a payment arrangement with them.
  26. 1 point
    There is no logic. Some do research the odds on collecting before suing others do not care one bit and sue everyone regardless. Even if they know you are unemployed or on disability they have a last hope that you will want or NEED credit in the future and have to deal with them. In Ohio judgments are good for 20 years and renewable so it could follow you for the rest of your life and collect interest annually at 10% on the amount awarded. That adds up to a tidy sum and if you are trying to buy a house or refinance you have to deal with the judgment first regardless of SSI etc. There are a few JDBs that have hardship programs that you can apply for. I would find out if Crown is one of them. To be approved you will have to provide proof of your only income being SSI and being disabled. If they do have a program and you give the required information they will drop the suit and cease collections. Again, not all do this and it is not required by law. PRA for one will not budge and sues everyone. They do not care if they ever collect.
  27. 1 point
    No arbitration. You're done. Congrats! (They won't bother trying to sue you again because they know you'll use arbitration against them if they do.)
  28. 1 point
  29. 1 point
    The allegations in the complaint describe PRA as the 'successor in interest', while the affidavit (a boilerplate form document) defines PRA as the "Account Assignee" and fifth third as the "Account Seller". While it is possible for a 'successor in interest' to be the immediate assignee of/by the OC, a complaint often contains the successor language when it is not the case that the plaintiff is the immediate assignee.
  30. 1 point
    Did you say you paid by credit card? If so, call the CC company NOW and report it as fraud. NOW. Don't wait another minute.
  31. 1 point
    This would be ripe for appeal except that the OP also filed a MTC arbitration which was denied by the same judge and that denial would also probably be overturned on appeal too forcing the JDB to go the arbitration route. The JDB might take the 8% and run knowing now that they might end up in arbitration if they appeal.
  32. 1 point
    @Neenur Please explain what kind of account this was with the original creditor. Do you have a copy of the original agreement from when it was opened? The only thing attached to the Complaint as Exhibit A is that affidavit? No monthly account statement or invoice?
  33. 1 point
    If you are careful and you do your homework you can win this case. Synchronicity has the best arbitration agreement of any bank. There are special ways to do this in Florida. Do NOT talk to their lawyers anymore Do NOT file an answer INSTEAD of an answer, file a Motion to Compel arbitration. There are threads on this board to teach you how. Make sure you file the MTC before the deadline for the answer. PRC has been beaten many times before with this strategy.
  34. 1 point
    Get a couple of free bankruptcy consults ASAP like tomorrow. Most will do them same day. Filing would stop the garnishments, bank levy etc. With everything going on starting over may be your best option.
  35. 1 point
    Rule 26.1 disclosures are required to be sent by both parties within 40 days following your answer. If you have nothing do disclose, you don't need to send anything. And going to arbitration renders this requirement null. "Served" just means they sent it via postal mail on that date. You should have it in a couple of days.
  36. 1 point
    They only need to show the transfer to them from whatever statements you last made payments on.
  37. 1 point
    Oh no, don't do that. You don't want to admit to any details of the acct, ownership of the account, anything that ties you to the acct. If you do that, you're giving them evidence against you and, potentially, a trial victory. Force them to prove anything and everything, don't help - that is the basic CA game plan and it works very well in these lawsuits because CA code places the burden of proof on them to show that this is your debt, not the other way around Besides, the answer forms don't require you to explain anything anyway, if you'll be using the general denial it'S just a simple fill-in of your name on the correct line & that will deny the complaint in it's entirety (you don't have to check box #2 if you don't want to). https://www.courts.ca.gov/documents/pld050.pdf This is a good read on CA strategy, it's from 2012 but most everything still applies: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/
  38. 1 point
    @Red123 https://scholar.google.com/scholar_case?case=4547445862868476020&q=“account+stated”&hl=en&scisbd=2&as_sdt=4,7 https://scholar.google.com/scholar_case?case=10287008152682837370&q=“account+stated”&hl=en&scisbd=2&as_sdt=4,7
  39. 1 point
    Good job on seeing this through and getting them to drop the case!!
  40. 1 point
    Service on the attorney only applies under certain exceptions. Portfolios witness did not fit the exceptions. Here’s what the court said. ”Effective use of a notice to attend is limited to situations in which the witness whose attendance is desired is a party or someone closely affiliated with a party, as specified by statute. (§ 1987, subd. (b).) Because Eyre is neither, his appearance as a witness at trial could be secured only by a subpoena, which by law must be personally served, absent an exception — none of which applies here.”
  41. 1 point
    As I understand it, the OP doesn't owe approx. $1000, he is past due by that amount and the total outstanding balance is $6400. Is bankruptcy an option?
  42. 1 point
    Yeah, there were two other dismissals also. But 3 have paid the initial fee and one of those has also paid the hearing fee (total paid is more than the value of the debt), so at least one of them appears to be taking it to the end. If it were just two, i could dismiss it as a coincidence. If it were several from the same lawfirm, i could dismiss it as ignorance. Several from different lawfirms concerns me. For now, i just don't know what to make of it.
  43. 1 point
    As I stated in @Brotherskeeper's linked post above, I think this new ruling has some good arguments that can be used to also apply to the "too expensive" or "equity" argument some attorneys are now trying to make against arbitration. The case above is not speaking directly of costs, but the same logic of "not able to add exclusions not written into the statute" should apply, IMO.
  44. 1 point
    You still have to open the case so AAA or JAMS can send them a bill.
  45. 1 point
    Thanks Clydesmom, Good to see you again. Yes, my quick search indicated a scam or a very very far removed JDB. I was only concerned because they called my number several times yesterday, then called my mom's number 3 times yesterday, though never left a message on the 2nd and 3rd call to her, and then called my cell. Some of the people complaining about them that reported this Jan said they have ben hounded since last summer. Air horn is a good idea... so is my big old police whistle. Thanks for the idea.
  46. 1 point
    @BV80 @jmay I ignore any "small claims exceptions" in the agreements. They are all ambiguous plus this is magistrate with rent-a-lawyers on the other side who don't read the agreements anyway. Here are recent GA Magistrate cases with a Citi agreement where pushing arb resulted in a win:
  47. 1 point
    A Motion to Compel Private Arbitratoin would look something like this: MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, 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 dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration. Respectfully submitted this day ________________, 2014 (Your name typed), Defendant, pro se
  48. 1 point
    As @BV80 said the SOL in GA is 6 years. They are well within it to sue. You should fight this. Gwinnett is run by actual lawyers and Judges who do not take kindly to spurious documentation to pursue a debt case. Magistrate Court does not allow discovery so you do not need to worry about that. Simply check off on the form you deny their allegation and wish to defend then get it to the clerk. The court will set a trial in the next 30 days. Type up a motion to compel arbitration and a motion to dismiss with prejudice. I would even mail a copy of the MTC arbitration to the lawyers listed and a letter CMRR stating that you are electing arbitration per the terms of the agreement that governs the account in question. That may cause them to fold before trial. On the day of trial the Magistrate will send you to the hallway to negotiate with the rent-a-lawyer that gets the case. Your only move is to steadfastly refuse to discuss any payment or admit to ANYTHING. You simply keep stating that you want arbitration per the terms of the card agreement the Plaintiff alleges applies to the account in question or a dismissal if they don't wish to arbitrate. If they haven't dismissed prior to the trial date they most likely will at that point or shortly after.
  49. 1 point
    @HockeyFan like @debtzapper mentioned earlier, read up on some recent threads like this @NormInGeorgia one to get up to speed on the evidence rule changes. http://www.creditinfocenter.com/community/topic/319863-i-got-destroyed-by-the-new-georgia-evidence-rules-did-anyone-else/ http://www.creditinfocenter.com/community/topic/324372-how-i-lost-against-midland-funding-in-georgia-and-then-won/ I'd study the GA evidence rules. If their affidavit is not describing any specific records reviewed, that would be a flaw in it. Does it meet 803 6 and 902 11/12? http://ga.elaws.us/law/24 Not being from Georgia or familiar with debt cases there, I'm not seeing what the big shocker is exactly with the rule change from a few years back. The business records exception pretty much matches many other states evidence rules from what I can see. I guess one change is integrated records admission but I'm not seeing how a JDB could meet all of these, especially item 3- The basic requirements for the admission of integrated records are 1) a business relationship between the business that initially made the record and the one who received it, 2) the recipient business routinely relies upon the accuracy of the record andintegrates it into its own files, 3) the recipient business has a witness who is sufficiently familiar with how the originating business routinely prepares the record to lay foundation under the business record exception, and 4) circumstances support the trustworthiness of the record.
  50. 1 point
    Okay, today, I am posting redacted versions of PLAINTIFF'S Trial Brief, PLAINTIFF'S Opposition to Defendant's MIL's, and PLAINTIFF'S Proposed Judgment. Obviously, these are NOT anything a prospective defendant would be interested in using as templates. However, these are useful to read and see and know and research what kind of arguments that Plaintiff is likely to drop in your lap on the day of trial. These documents were handed to me 2 hours before my trial. I kid you not. As you can see, plaintiff tried to bundle both MIL's into one and argued against them jointly. Plaintiff DID succeed in beating the MIL re 454. Plaintiff failed on the MIL re 98. That was NOT the end however. Plaintiff was then given leeway to try to get evidence admitted by other means -- which meant Plaintiff was left with Defendant as the only witness who might authenticate anything. Plaintiff put me on the stand. Plaintiff asked me to read the dates and addresses on the alleged Account Statements and alleged Charge Off Statement. I was asked if I had seen any of these documents PRIOR to litigation, which I had not, so I answered "No." At which point, the judge asked if the plaintiff had anything further. Plaintiff said no. Judge asked if I had anything further to say. I said, "Your Honor, Defense moves for Judgment in Favor of the Defendant." The Judge granted my motion. NOTE: Plaintiff's Trial Brief named an entirely new alleged "Original Creditor." This new entity was never named in their complaint or in any discovery or in any pleading or ...anywhere at all. Plaintiff never amended their complaint to change the identity of the alleged "Original Creditor." I was set to object to the trial brief as irrelevant on this basis. READ. ALWAYS LOOK FOR ERRORS AND INCONSISTENCIES AND MISREPRESENTATIONS AND FLAWS IN ALL EVIDENCE, PLEADINGS, CORRESPONDENCE, AND COMMUNICATIONS. ALWAYS. REDACTED PLAINTIFF'S OPPOSITION TO DEFENDANT'S MIL'S.pdf REDACTED PLAINTIFF'S TRIAL BRIEF.pdf REDACTED PLAINTIFF'S PROPOSED JUDGMENT.pdf