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Showing content with the highest reputation since 09/22/2019 in all areas

  1. 4 points
    it's just as much your story as mine @SJULawAlum so GUYS the update is that literally RIGHT before I was headed to post office (like mere seconds to send my arb stuff to jams) my lawyer got a call from some dude over at jdb law firm stating they would offer me a settlement in exchange for what I would pay for arb filing fee $250. Obviously my lawyer is a genius (duh) and said he didn't know if I would settle so now feel as though ball is in my court as can use this as leverage to hopefully 🤞get what I want from midland otherwise I suppose why wouldn't I do arb?!? or go through with it rather...so now we will wait to see what their settlement offer is and go from there but just wanted to keep everyone in loop for future people and for my forever gratitude to those on my journey and STILL helping/weighing in. Obviously I am literally blessed with @SJULawAlum who not only is a whiz at NY law, great attorney and just wonderful person... but also to those who've helped me from the beginning and still do @Brotherskeeper and the arb godfather himself @fisthardcheese I don't want to jinx anything but am hoping we've come this far can get what I want🤞🤞
  2. 3 points
    You defaulted on a credit card, waited until their 30% offer expired to call them, and now you want to sue them because they will will only give you a 60% discount and not 70%? It's a great time to be alive, everyone. (You can sue anyone for anything, although i don't know what your cause of action would be based on. In any event, you can expect them to turn right around and sue you for the full amount of the debt, plus legal fees and court costs. I'd probably just be happy with the $300 instead of $750, but I'm old fashioned that way.)
  3. 2 points
    I don’t know if you’ve found case law in support of your claims in your opening post, but here are my thoughts. Rule 12(B)(6) is the rule that allows for a MTD in lieu of an answer based upon jurisdiction. It makes no sense that there would be two rules for the very same thing. @fisthardcheese has researched the arbitration process for years. If he felt a MTD in lieu of an answer was the best step to take, he would advise readers to do so. There are reasons for a MTC arbitration. Employing your step would require the judge to determine if there is a valid agreement to arbitrate, but he would not required to issue an order to arbitrate. He would only be required to dismiss without prejudice which would allow the plaintiff to refile. Some plaintiffs would not refile but others would. The defendant would then have to go through the same process again. A MTC arbitration requires the judge to issue an order that the parties arbitrate. Your suggested step makes no such requirement. That order to arbitrate is a benefit and protection for the motioning party. Depending upon the language in the order, in the event the plaintiff still refuses to arbitrate, the defendant can motion for sanctions against the plaintiff. The court can sanction the plaintiff by dismissing the lawsuit with prejudice. If the defendant does not or cannot file a motion for sanctions, the order still protects him should the plaintiff choose to refile. In fact, if the plaintiff still employs the same law firm, the attorney would know that the defendant possesses an order from the court which would be a deterrent to refiling.
  4. 2 points
    We routinely suggest that readers employ the services of an attorney, is possible. In fact, I and some other members include that suggestion in our signatures.
  5. 2 points
    I'll add something to BV80s point. Chase can claim the recordings of customer conversations are proprietary material that can be deleted at any time. This would especially be the case if their phone system made callers aware they may be recorded for quality and training purposes. Chase was under no obligation to offer a discount to the OP in the first place. When they extended a 30% offer, the OP did not accept it. When a Chase representative told the OP over the phone that they would still accept a 30% settlement, the OP still didn't accept the offer and submit payment. Life's too short. Pay the $310 and stop playing the victim card.
  6. 2 points
    I thought i was pretty clear in my first post here that, based on what you've told us happened, it's absolutely ludacris that you think you have been wronged in any way during the course of your relationship with this account. Despite that, i answered your question about suing them, and then you responded with your own fantasy of how things would go down. Now we're on round 3, with several other people confirming my initial assessment, and you're still acting like you have entitlement to recourse over money you legitimately owe them. That's the basis of the attitude you're getting from me. Let me know if you need further clarification.
  7. 2 points
    @fisthardcheese should chime in, but I believe the approach is to argue that it's not your fault that their actions put them in this situation - the contract offers AAA as a forum for dispute resolution, so they either get back in good standing, or they're out of luck.
  8. 2 points
    Settlement discussions cannot be used in court so they cannot use the fact that you wanted to settle as proof that the account is yours. If the courts allowed settlement discussions to be used as evidence, there would be no settlements and the courts would grid to a halt (settlements are the oil in the machinery of the civil courts as plea deals are the oil in the machinery in the criminal courts). If you are that worried, then when you call, you can state that "I do not admit that the account is mine but in the interest of saving time and money, I would be interested in settling." Large companies do it all of the time so why not you. As for arbitration, you only got one opinion. I would suggest posting your information on this board and get the opinion of those who have successfully done arbitration before deciding whether that will work in your case or not.
  9. 2 points
    Contracts only have to be signed by the party to be bound. But this is a question of law and might need research. Does the law in the jurisdiction require attorneys to sign engagement letters or retainer agreements? If it were me, I would focus my attention on: (i) if the attorney engaged in "block billing;" (ii) if there is a lack of description of the service rendered to you; (iii) that the hours spent on a matter were too long; (iii) that a partner was doing work that could have been handled by a more junior attorney; (iv) and the rate charged was not the rate agreed to.
  10. 1 point
    Maybe you could say, next time he calls, that you will be glad to meet him at the police station. Or use an air horn on him.
  11. 1 point
    One of my pet peeves is this notion that creditors (including debt buyers) consciously chose to "mess with" an individual debtor. As far as I can gather, the OP thinks that Chase has engaged in nefarious activity, against him personally, for 68 bucks. I once dropped off a settlement check at a small regional office of a law firm that Midland had retained to sue me. I was blown away by the sheer volume of paper stacked on every available surface. I couldn't fathom how the staff was going to blindly process all of it - let alone taking the time to linger over each one and debate how to "pull a fast one" on the poor sucker who defaulted.
  12. 1 point
    If you listen to the beginning of phone calls, you will usually hear this statement: This phone call MAY be recorded for quality purposes. Notice the emphasis on the word "MAY". There is no requirement that the bank or creditor records the call AND those recordings would not be considered bank records. In fact, there is no requirement outside a court order that banks keep such recordings for any amount of time. Tell you what, you said you hired a good attorney in another thread. Why don't you bring the facts of this case to that attorney and see what they say. I will almost bet that they will say to take the settlement at 40% if that is still available to you. You don't have a case because you really don't have a settlement until it is signed and sent in writing. The collector at the other end might not have been authorized to make such a settlement and has since been fired for all you know.
  13. 1 point
    I don’t believe the calls to which you are referring constitute “bank records”. Those would be billing statements, contracts, etc. @LaneBlane and @Harry Seaward have a good point. If you sued for whatever, they could counterclaim for the full amount of the balance.
  14. 1 point
    When you received a settlement offer of 30%, and Called Chase to discuss the offer, you should have paid it. Now you want to sue them and and have subpoenas issued? Waiting for you on the other end of that lawsuit will be a counterclaim. My best advise is to pay the $310 and be done with it (if they will still accept this amount). This is more than a 50% discount off the balance of $668.
  15. 1 point
    Those are not bank records under the law. They are not required to record the call or keep a record of it. My guess is that if you sued over this they will claim the phone call was not recorded or that the record was purged after 30 days.
  16. 1 point
    Do a Google search for an article on the sale too and bring that in. I think the sale occurred in July of 2018 so you can show the court that article to show that the Comeity Bank agreement was in force at the time. I doubt the attorney will fight you too much on that because Synchrony has a more consumer friendly arb agreement than Comeity. That also explains why the lack of agreements during 2018. There was other stuff going on. As for the bit about they pay, JAMS has a similar setup where you pay $250 to get the case started and then the creditor pays from here on out so that is not shocking. They also will not be able to claim that your case is frivolous because they are the ones that sued you and you requested that they follow the contract and use private arbitration. So get your answer filed. The answer should be a general denial and an affirmative defense on both account that the court lacks subject jurisdiction due to the arbitration clause. You can then work on the MTC this weekend and next week. You don't have to file the MTC immediately (and in fact, I would wait until the plaintiff gets the answer first).
  17. 1 point
    I had to point this out in my case against LVNV. Everything they did was late, so I had to point that out to the judge. In turn, because I pointed that out, he had no choice but to allow my motion to reply. It works out well when you hold the other side accountable on the record.
  18. 1 point
    Wait for your MTC to be granted and ask AAA to reopen your file by sending them a copy of the court's order to arbitrate.
  19. 1 point
    Don't file the MTC until you get things situated with the card agreement. Simply file the answer on time denying all allegations and list an affirmative defense of "lack of subject matter due to a private arbitration agreement". Who does the JDB list as the creditor for the paypal account? Does the complaint list Synchrony Bank?
  20. 1 point
    I didn't miss it. It's a moot point for a dozen different reasons. I don't. They will definitely countersue you if you sue them first. Let's assume they lied. It doesn't matter. There's no law that says they have to keep their word on an expired limited time offer after you default on a debt. Those are the points you missed.
  21. 1 point
  22. 1 point
    No. They withdrew their settlement offer. They are not obligated to make you a discounted offer at all under the law. Until you have a signed agreement in writing that spells out the terms then no settlement exists. It is only negotiations. Can you? Yes. Should you? NO. They can counter claim the entire amount you owe on the debt. The FDCPA does not apply to original creditors so on what basis LEGALLY would you sue? You have to file suit or be involved in litigation as a defendant first. The courts do not just issue subpoenas on their own. It is only done as part of litigation or court proceedings.
  23. 1 point
    Why can’t you use the user agreement on the PayPal website?
  24. 1 point
    I would still argue that the whole case should be stayed pending the resolution of the Victoria Secret card in arbitration since they decided to file both accounts as one case. The alternative is that they dismiss this action without prejudice and them file for each account separately. They tried to save money and it came to bit them in the rear end.
  25. 1 point
    The thing is, there has to be an agreement somewhere and you have to find it, even if you need to search day and night. Search your files if you must or any emails you might have saved. I doubt Paypal would offer credit without an agreement and I doubt Paypal, who has been the subject of many class action suits because of their practices, would not have an arbitration clause in any credit agreement. Here is a list of their agreements for the USA: https://www.paypal.com/us/webapps/mpp/ua/legalhub-full Maybe what you need in somewhere in there.
  26. 1 point
    Here is an undated agreement from PayPal's website that you can use, they call for use of AAA: https://www.paypal.com/us/webapps/mpp/ua/cashcard-agreement?locale.x=en_US Since they use The Bancorp Bank in the agreement above, you can argue that the agreement was before the sale to Synchrony on 3 July 2018 (articles abound based on a Google Search). I would also search The Bancorp Bank and Paypal on the CFPB site. Also, It looks like PayPal is claiming that the sale to Synchrony closed on 3 July 2018 so if you defaulted after that, you might be able to argue that the Synchrony agreement applied at that time.
  27. 1 point
    You could argue that because they combined both cards, they whole case is stayed pending arb on the Victoria Secret card unless they want to dismiss this action and file 2 different cases. If Paypal handled heir own credit cards prior to 2019, there has to be an agreement somewhere and I am sure Paypal used an arb clause. You could file your answer while you try to figure this out and file your MTC next week. That would give you time to find the agreement.
  28. 1 point
    File an opposition motion and cite whatever statutes/rules talk about the time limit. Also see if there is anything in the rules about exceptions to the rules about Failure to Prosecute. In our case the rules stated that "Settlement Negotiations" where among things that were NOT good reasons for failure to prosecute, and we had been in settlement negotiations, so that was highlighted in our motion to oppose. Also point out the length of time that has elapsed - our lawyer said it's one thing if they are a day late in responding, but another if they let a couple months go by, for example.
  29. 1 point
    The judge's Order directs both parties to proceed to arbitration. Defendant is directed to commence arb by 10/15. If defendant fails to do so by 10/15, plaintiff may move to restore the dismissed case and may renew its MSJ.
  30. 1 point
    @SJULawAlum @fisthardcheese What, if any, leverage does Plaintiff have at this point--if they don't want to pay and go to JAMS? They've sued twice on the same debt. They discontinued the first suit with a (voluntary) dismissal without prejudice. Had their 2nd suit dismissed without prejudice, after having their MSJ denied in all respects, and Shelly7's MTCA granted.
  31. 1 point
    You should completely re-do that MTC. I would make two separate sections for each of the Card Agreements and describe what gives the authority in each of the contracts to make two separate arbitration cases. Both the Comenity and the Synchrony card agreements should have both AAA and JAMS listed in them. I would put in my MTC asking for one to be ordered to arbitrate with JAMS and the other to be arbitrated with AAA.
  32. 1 point
    @Fisthardchesse should be able to help you more in this. You need the 2018 agreement for Paypal and the 2017 agreement for Victoria Secret. Since you are making the motion, you need to find the agreement. I would take the last agreement before the default (which means if there is a 2017 Paypal agreement, grab that. If they say that was not the agreement in force, make they prove it). Same for Victoria Secret.
  33. 1 point
    You really need to understand how to do arbitration because one misstep and it is default judgement. @fisthardcheese can help you with the arb part and @texasrocker can help you with the finer points. The first thing I would do is find the agreements since they are using one action to sue on 2 separate accounts. They can be found on the CFPB website. Synchrony for sure has an ironclad arb clause. I am not sure of Comeity Bank does or not but I would think they probably do. Make sure you get the ones that were in force on the date of default on the account. As for your answer, you need to include as an affirmative defense that the court does not have subject matter jurisdiction because according to the contract, the dispute must be resolved in private arbitration. Since you have until next Monday to answer, if you take until Friday afternoon to fine tune things, that will be fine. Once the answer is filed with the court and served on the plaintiff, you then file a Motion to Compel (MTC) to force the plaintiff into arbitration for each account. You will need to fill out an affidavit stating that they card agreements you have are the true copies and where you got them from. You will need to attach the card agreements to the MTC. That will be filed with the court and then served on the defendant. Also, while you wait, you need to get the JAMS (or in the case of Comeity Bank, AAA if the contract requires that forum) forms ready, one for each card. This way, if the plaintiff says you are not serious about arbitration, you can show the court the forms and that you are waiting for the court to decide if they will compel or not. I would divide up each card into 2 separate arbitration cases because they are 2 accounts, not one. If the plaintiff does not like that (because of the added cost), they can appeal and pay the extra fees during arbitration (although I doubt they will). If the court approves your MTC, you can then file with the correct forum and then wait until the decide to follow you into arbitration (highly unlikely) or offer to dismiss the case which then, you are in the driver seat. Since they would not settle over the phone, you can offer the attorney $500 to settle at the courthouse at the MTC hearing since that is what arb will cost you to get started. If they complain you offered higher earlier, tell them that was before you had to expend all this effort.
  34. 1 point
    Yes. Claim it. If the court denies a motion to compel arbitration you can then file a motion to do discovery. If you file the motion to do discovery first you run the risk that the courts rule you waived your right to arbitration. They will do one of two things: send an associate of hers and try a bundle of cases all on that day or hire a local yokel firm to handle it.
  35. 1 point
    Many attorneys still don’t know much about arbitration. It is not what they do. Attorneys are geared towards courts and settlements. Whether you can use arbitration depends on several factors. 1. Is there an arbitration agreement. If no, then you can’t arbitrate. Skip the rest. 2. If you are in small claims court and there is a carve out for small claims, you can’t arbitrate. Skip the rest. 3. If you are in Florida, you must send in an MTC instead of an answer for arbitration. If you already answered without an MTC you probably can’t arbitrate 4. In other states you are can arbitrate. You need to post your information. Specifically, who is the OC what State is this? what type of court? the approximate amount? You can find the credit card agreement online at the CFPB web site.
  36. 1 point
    My apologies Ryan, it was more an assumption on my part. It was not my intention to steer the OP in the wrong direction. I will take note and in the future I will use caution when responding to posts. @heyitsjamieMy apologies to you as well!
  37. 1 point
    This is absolutely not the case in CA. Mike, please take care when advising people, in particular when they are from different state than you. This is poor advice as California laws are very favorable to defendants in these types of cases; many have gone the trial route in CA, we have an excellent track record beating JDBs and even OCs.
  38. 1 point
    As shown above, we cannot help with Canadian laws. We don't know what the effects of BK would be in Canada. Here in the US it is possible to recover from BK; to even have multiple BK and still be elected president. I have no idea what it is like in Canada. In the US, at some point a BK will be off your credit rating, and it will be as if you never had a BK. Perhaps you should find someone in the legal profession in your area who specializes in BK, and have a consultation. Many attorneys will give either a free first consultation, or else a low-fee consultation, at least in the US. The only problem is the old adage that to a hammer every problem looks like a nail. An attorney specializing in BK might push you to BK even if that is not your best option. Here in the US, many employers have a system whereby the employees can chat on the phone for free with an expert in their field. Sometimes some banks or credit unions have access to free or low cost financial consultants. You might want to explore that option as well. It would be helpful to get more than one opinion. Some of the people you talk with may have a bias either for or against BK. Getting multiple sides of the story will help you formulate your best strategy. And that is what we advocate here. We advocate that each person come up with the strategy that is best for that particular individual.
  39. 1 point
    Most every one here is only familiar with US laws and how credit agencies here work regarding impacts like BK. Canada law and credit issues could be very different, so it may be hard for us to give you any opinions to help specifically.
  40. 1 point
  41. 1 point
    Right - we all know I'm the one working for Midland - Harry just moved to Unifund.
  42. 1 point
    Maybe do some research. Since you are very far away from me (Monroe County) I can't really help you that much. But if you want to check out a case where a judge ruled issued an order compelling the parties to arbitrate check out 601500/2019 in NYSCEF.
  43. 1 point
    Well, I haven't been an attorney long. But I have never seen any debt buyer in NY doing field trips to OC to get acquainted with their business practices. That would present interesting legal issues to litigate though. In the case law I've read, it is pretty clear that only having custodian testimony, without more, is not enough in NY. I know a collection attorney who represented a medical JDB. He told me the JDB and the medical provider had an agreement that the medical provider would be available to provide affidavits for motions and show up at court appearances to testify. I have NEVER seen that among the consumer credit plaintiff's and JDB's. I've handled about 5 JDB cases now. When I have pressed them for names and addresses of witnesses to appear at trial; and have taken discovery seriously; they have all folded. They know they can't prove their cases and go for the low hanging fruit. I've gotten three dismissed via agreement, one was for a sum of $33,000. And today I got one dismissed via a judges order where the judge denied a JDB summary judgment and granted the cross-motion to compel arbitration.
  44. 1 point
    Hi all, this is usctrojan here. Had to make a new account because my old one got like stuck in cyber never never land. Excited about my first win in a consumer debt case. No, a debt buyer can't use their own custodian. They need a witness from original creditor to authenticate OC's records. A good example of this is found in Unifund CCR Partners v Youngman, 89 A.D.3d 1377 which states "plaintiff submitted an affidavit of its agent, a “Legal Liaison” employed by plaintiff rather than Chase, along with exhibits that included credit card statements and account balance documents from the business records of Chase. We reject plaintiff's contention that it thereby submitted the requisite business records to establish its standing." Since custodians of debt buyers will not have knowledge of the OC's business practices, they will need a witness from the OC. Authenticated documents is another term that means documents that are in admissible form. To qualify a document as a business record, need someone with personal knowledge of business practices of the OC. Again, JDB custodian won't have that. Default judgments are entered by clerk's and not judges, so most default judgments are entered with documents that are either not authenticated or with witnesses who are merely JDB custodians. Summary judgments are contested cases (you can't have summary judgment unless defendant filed an answer), but some who are unrepresented might not know how to advocate that the evidence submitted is not in admissible form or sufficient to meet a prima facie burden.
  45. 1 point
    The answer to this question depends on how badly you want this case out of court. If you absolutely want it out of court, file in JAMS ASAP. Send copies of everything to the lawyer. Being a JDB, that will probably be enough to scare them away. If you are willing to take the risk of your wife having to file an MTC and argue it in court, or perhaps you having to file a Motion for Intervention so your name will be on the suit as well, send a letter to the law office demanding arbitration and see if that scares them off. One of three things will happen: 1. They will ignore you and sue anyway. Then you have to figure out your strategy 2. They will run away and you won’t hear from them again. However, the JDB might get a different law firm later, and you have to go through the same thing all over again. 3. They will demand you file in arbitration or else they will sue. I have had all 3 things happen to me. When I was in a similar situation I filed in JAMS right away on behalf of my wife, noting that I was an unpaid non-attorney representative. That works with JAMS rules and the state laws in my state. Some states do not allow that. Check your state laws. If that is not possible, then file in JAMS with you and your wife as co-claimants, since you are in a community property state.
  46. 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/
  47. 1 point
    Is the judgment still on record with the court?
  48. 1 point
    This is some of the worst advice concerning items for discovery that I have ever seen.
  49. 1 point
    Sahm has given great advice. calm down and be confident. The Cach attorneys are trying to push you, so make sure you have no fear of the court. You can go in there and win if you say that you are not aware of any alleged account and was expecting them to appear at court since everyone else had to be there the court, the bailiff, the clerk and you. It goes against the confrontation clause to have a long distance trial. So keep pounding that they haven't shown anything that leads anyone to believe their conclusory allegations. Small claims court is supposed to be easier but for some reason people are afraid of it. fear not it is like Judge judy, or the peoples court. To really tweak their beard so to speak, tell the judge you thought that in small claims court attorneys were not allowed. I say this because Cach is a Limited Liability Company and in small claims the parties are not allowed legal representation. A company is not a corporation. So press to get the lawyer thrown out. And when if they do ask for discovery, make sure that you get to do discovery, also and tell the judge we are going to require a witness, because of Cach's previous behaviou in other states and this one. print a copy of the Cach LLC vs. Askew decision and enter it at trial. So make sure you calm down and think Judge Judy.
  50. 1 point
    Infeasible. Boy, that ticks me off. It is incredible your Honor, that Midland's business model renders it inconvenient to establish a threshold requirement in this case: that it actually owns the debt in question and that it therefore has standing to pursue its claim in this Court. However, standing is more than just a "legal nicety". Debt collectors sell their portfolios time and time again. A single debt may be sold 3 or 4 times or mauybe more. If the Court is not familiar with that fact, the Missouri Supreme Court's opinion in CACH v. Askew is instructive: http://www.courts.mo.gov/file.jsp?id=51954 (Debt transferred from Providian to WAMU to Worldwide Asset Purchasing II to CACH). If the Court is to render a judgment in this matter, it should dispose of this controversy forever. But if Midland doesn't actually own this debt, there is nothing to prevent Portfolio Recovery Associates or CACH or Worldwide Asset Purchasing or any other bottom feeder from suing again on this same debt. However, Midland is not an occasional visitor in this Court. Its entire business practice consists of purchasing debt and suing to recover it. If it finds it "infeasible" or "inconvenient" to prove standing, it should revise its business practices rather than contend it should somehow be excused from establishing an indispensible element of its claim. Just saying.