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Showing content with the highest reputation since 07/25/2019 in all areas

  1. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  2. 5 points
    Updating my thread as I am now officially finished. After initiation with JAMS PRA did not want to further the case so they asked for a mutual walk away. I told them only if it is w/prejudice. So this makes win number 3 now. Arb in Ohio is a viable strategy, and I wouldn't have been able to do it without the help from the wonderful community! This win is for you guys!
  3. 4 points
    Just wanted to give everyone an update of my case... I was able to get the digitally signed promissory note from Prosper and I filed the MTC arbitration with the court. While I was waiting to receive the promissory note I sent a letter to Plaintiff's attorney electing arbitration. There was a scheduling hearing on July 26th at which time the Plaintiff's attorney stated that they wanted to wait for the court's decision on the MTC arbitration before scheduling a hearing. The judge granted me a stay on the discovery and interrogatories since they were due the following day. I was called the day before the MTC hearing by the court clerk and she said that I had not provided the court with a courtesy copy of the motion. I literally had to leave work, run home and print everything out, 3 hole punch the 18 page document, rush to Walmart to get a binder (clerk said it had to be in a binder) and drive all the way downtown to deliver it by 3 PM. This was very stressful but I managed to get it done! The MTC hearing was on August 1st and, lo and behold, the Plaintiff's attorney filed a motion for non-suit without prejudice at the last minute. Sort of anti-climactic but at least it's over with unless they sell it to someone else that tries to sue again. Thanks again everyone for your assistance.
  4. 3 points
    First off, is there a case number on the papers you were served? If not, they plaintiff is using pocket docket and you will need to send your answer to the plaintiff, not the court house. This needs to be done within 20 days from the day you were served. If there is a case number on the papers, then you file with the courts but be prepared to pay the court fees which might be quite high for $1200 case if they are using civil court rather than conciliatory court. You indeed use the state form to file an answer and under affirmative defenses, you check "Lack of Jurisdiction" and in the reasoning part, you state that the contract contains an arbitration clause and that you elect to use arbitration. The arbitration clause has a small claims exemption but that is only if you sue. Again, see above as to where you send the form. If you have to file in the court, conciliatory court will be about $75 and civil court will be $0 if they used pocket docket (just make sure you send your answer to the plaintiff attorney using CMRRR postal method). If they ever do file in civil court, those fees are about $350. You have 20 days to prepare and file this with the appropriate person. You then need to prepare a MTC arbitration. We can help you with that too. What I would do is take as long as possible to answer the summons and complaint and then a week later, either send the plaintiff attorney the MTC (if pocket docket) or file it with the court (if filed in court). I don't know the cost of filing a motion in conciliatory court but it is $175 in civil court. We will help you get further if need be. Since the fees are so high, if you are in pocket docket, what I might do is once I send the MTC to the plaintiff attorney, I would offer them the $600 I would pay in court and arbitration fees as a settlement as long as they do not file in court (with the understanding that once they file, the deal is off).
  5. 3 points
    @Robby8900 I added "in Ohio" to the topic of this thread to help make it easier to find in a search.
  6. 3 points
    To test this, I did a number of searches in my local court. I searched the small claims court docket for the most common JDBs: Portfolio, Midland, CACH, Cavalry, LVNV. None had ever filed in small claims court. Others in Ohio can try similar searches.
  7. 2 points
    Hi there all, Sorry in advance for the length of this saga, but I promise there is a good ending. I haven't been on the forum for a while and wish I'd seen the original posting. So, I was sued by Midland for an alleged 5k Care Credit (Synchrony) account about 2 years ago. There was a lovely arbitration clause (like yours) in the card agreement. Kohn Law Firm was doing the dirty work and brought the suit against me in my county's Small Claims Court. I was very grateful to receive significant information and strategic suggestions from members here (several who have been posting on this thread). I also did a boatload of research, including using PACER and almost memorizing WI's Consumer Act. I filed my Answer along with my MTC and appeared for the Hearing. The attorney representing Kohn had graduated from law school months prior to the Hearing (again, research). That very young man was representing Kohn on several matters before the Court that day and had rudely asked (demanded) each Defendant to confer with him prior to the proceeding. He'd been able to threaten and convince several parties to sign agreements admitting their debts because, "you'll get a better deal this way," and was, no doubt, expecting me to fall in line. He started by denying he'd received my Answer or MTC. This was either a blatant lie (my bet) or abject incompetence (possible) as I'd filed them electronically using WI's e-file system. I highly recommend filing everything this way as it is hassle-free and, I believe, shows the Plaintiff you are engaged in the process. When I slid a hard copy of the documents across the table to him, he shoved them back at me without looking at them. At that point, I told him we had nothing else to discuss and walked out. As I'd been astutely warned by forum members, the Small Claims Court Commissioner (who presides over the initial Hearing in consumer debt cases), barely glanced at my MTC. The Kohn attorney told the judge that he had no idea what I was proposing and had never seen the document. The Commissioner said that it didn't matter anyway because he was ruling in favor of Kohn/Midland and entering a judgement against me. I immediately (via e-file) requested a hearing before a Circuit Court judge. I received notice of an assigned judge and hearing date. Research (again) led me to understand that the judge was likely the most pro-business, anti-consumer on the bench in the Circuit and filed to request a new judge. I received a new judge, one who appeared, at least on paper, to view consumers in a more favorable light. Before the hearing date, I was notified (via e-file) of Kohn's Motion to Deny my MTC. I was actually surprised at the apparent lack of thought and legal reasoning contained in the document. It felt like they were not taking my Motion seriously. I responded to Kohn's Motion point by point and filed a copy of my application to JAMS. At the hearing, it was obvious that the Judge had actually read and thought about my MTC. He told the Kohn attorney that his Motion had not really addressed the issues I'd raised and asked him pointed questions as to why the case law I cited would not be relevant. If boy-lawyer had not been such a jerk, I would probably have felt sorry for him. He sputtered and turned red- especially when my MTC was granted. Then started what I call the JAMS dance. I was really trying to not pay the $250 filing fee. There were many emails back and forth with Kohn. My case was now being handled by boy lawyer's supervisor. In retrospect, I would likely have been okay not paying but admit I blinked when JAMS said they were closing the case because of not receiving filing fees from either party. I just did not want to be in defiance of the court's Order. So I paid my $250. Magically, Kohn filed for a Dismissal of the case, without prejudice. Again, none of this would have been possible without the wisdom of the forum members and the kindness they show by sharing that. PM me if you have any questions.
  8. 2 points
    Who is the plaintiff? Citi or a buyer? What's the date of the agreement? Citi had delegation language from 2001 until late 2016 or early 2017 (depending on the style of account). The delegation language looks like this; Citi removed this language a couple of years ago. But if the agreement that governs the account in question does contain this language, then the court can't consider the small claims cut-out. The Supreme Court re-enforced this interpretation earlier this year in Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___, 139 S. Ct. 524. See also; U.S. Supreme Court Holds That Arbitrators, Not Courts, Decide Arbitrability Under Contractual Delegations—Even When the Answer Is Obviously “No” SCOTUS Rejects Exception to Compelling Arbitration—Delegation clause means arbitrator decides scope—no plausible argument required Supreme Court Gives Teeth to Delegation Clauses in Arbitration Provisions U.S. Supreme Court Rejects ‘Wholly Groundless’ Exception to Delegation Clauses in Arbitration Agreements — If the agreement that governs the account in question does not contain the delegation language, then you might not have this leverage unless delegation is somehow incorporated by reference to the rules of the arbitration forum — as was the case in Schein.
  9. 2 points
    This is not a mistake. They get the original signed letter. You were to make copies of the signed original before mailing it. OK. The letter is identical to the one sent; you signed your copy after the original was mailed. (IANAL) I would drop the "true and correct" in favor of a true copy. Here's the Black's Law definition of a true copy for you to consider: TRUE COPY THELAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED. A faithful duplicate of an original document that is virtually identical and sufficient for its purposes to act as one. Exactly right. You're about to file a very important motion in court before a judge.
  10. 2 points
  11. 2 points
    Just do it all in writing, not on the phone. When they reject your 10% offer, I would thank them for saving you $400 after you beat them in court with our help.
  12. 2 points
    @themxb17 The Ohio threads by @MikeB35, with the help of Ohio's @nobk4me should have useful info for you.
  13. 2 points
    Depending on the case law in one’s state, non-signatories can force signatories to arbitrate. The JDB would be a signatory because it claims to own the account. Also, think about it. The JDB is not going to object to arbitration on the grounds that one of the parties is not a signatory. If it claims that it is not a signatory, it has admitted it lacks standing to sue. If it claims the defendant is not a signatory, it is admitting to suing the wrong person,
  14. 2 points
    I agree. That's not where i was going, though. @pulpfiction0 flat out said he/she doesn't care whether or not the other side has committed violations. That's a dangerous suggestion and the consequences should be explained when discussing it on a DIY credit repair message board.
  15. 2 points
    Of course. Rausch Sturm Israel Enerson & Hornik is the biggest bunch of wimps ever. All they care about is default judgments. That is irrelevant in Texas as small claims courts were abolished in 2013.
  16. 2 points
    How much do you want to pay? If the answer is $0, go the arbitration route. None of us had legal experience before getting sued. We learned arbitration and won. Now we can teach you how to win without having to become a legal eagle, and without you having to reinvent the wheel. If the answer is more than $0, send them a letter that you are electing arbitration, but would be willing to settle for $X. If they accept, get documents drawn out and pay. If they make a counter offer, either pay it or fight it. If they ignore you and sue, then you pretty much have to go the arbitration route.
  17. 2 points
    Wait until about 3-5 days before the 30 days the letter is dated on and mail a debt validation letter to the law firm. This buys you a little time but will not delay the inevitable. Midland will sue you. The good news is Synchrony has the best arbitration clause of all the creditors. Research what the Louisiana courts require as far as filing an answer once you are sued and how to invoke your right to arbitration. Louisiana law is a bit different than they other states in that it is based off French law(s) not English law so you need to make sure you follow what is required based on that.
  18. 2 points
    @MIOMH Here's an example of a NY attorney-prepared "Defendant's Motion to Amend Answer to add affirmative defense of lack of permissive use." https://www.jdsupra.com/legalnews/motion-to-amend-answer-61600/ Here's a snippet from a NY case; http://www.courts.state.ny.us/REPORTER/3dseries/2008/2008_50769.htm "It is well settled that arbitration has emerged as a preferred method for settlement of many controversies. New York codified its strong public policy favoring arbitration with the enactment of CPLR 7501[FN1] (CPLR 7501, 13-75 New York Civil Practice: CPLR P 7501.00). Arbitration clauses are valid and enforceable on such grounds that exist at law or in equity for any contract. To this end, arbitration agreements, like contract rights, [*3]can be modified, waived or abandoned. (See Sherril v Grayco Builders, Inc., 64 NY2d 261, 272 [1985].) It is generally assumed that the party who commences the action has waived its right to arbitrate. The same assumption does not apply to the defendant (De Sapio v Kohlmeyer, 35 NY2d 402,405 [1974]). However, the right of the defendant to compel arbitration is not absolute and can be forfeited prior to trial (Matter of Zimmerman, 236 NY 15 [1923]). "[W]here the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory" (De Sapio at 405). . . . Defendants' neglect to serve a proper demand until approximately twenty-two months after plaintiffs commenced this action constitutes an "unreasonable delay" (Gabor at 1001, noting that defendants' service of a demand for arbitration eight months after the action commenced was an "unreasonable delay" and constituted a waiver of defendant's right to arbitrate). Plaintiffs have spent time and resources actively pursuing this claim in the judicial forum and should not be prejudiced by defendants' failure to compel arbitration in a timely manner. Defendants have actively participated in this litigation by submitting an answer containing five affirmative defenses, procuring an order for discovery, and participating in two pretrial conferences (see De Sapio v Kohlmeyer , 35 NY2d 402 [1974], noting that procuring an order for the taking of a deposition is a factor in a defendant's waiver of arbitration; St. Paul Travelers Companies, Inc. v Shore Drugs, Inc., 36 AD3d 891, 892 [2d Dept 2007]"
  19. 2 points
    I’ve been wrong plenty of times. We’re all still learning. 🙂
  20. 2 points
    Here is what I would suggest, using an answer template that I found out on the Arkansas Legal Service website. I used that template when I answered my lawsuit. Again, I am NOT an attorney. These are just my ideas and I defer to the superior wisdom of the group. You would reply to each paragraph. If everything in the paragraph is true, you admit. If everything is false, you deny. If you don't know, then you have insufficient knowledge to admit or deny. And you can do combinations. Use the same header information on the complaint (centered in your document). Your Answer should be double spaced. Please do NOT cut and paste this. I came up with this based on reading the Complaint - you need to make sure each answer is correct based on your understanding, not mine. After all, you are the one signing it ANSWER COMES NOW the Defendant, <your name>, pro se, and for his Answer to the Complaint filed herein against him, respectfully states as follows: Defendant has insufficient knowledge to admit or deny the allegations contained in the first paragraph of the Complaint Defendant admits he is a resident of Stone County, Arkansas. Defendant has insufficient knowledge to admit or deny the remaining allegations contained in the second paragraph of the Complaint. Defendant has insufficient knowledge to admit or deny the allegations contained in the third paragraph of the Complaint. Defendant objects to the allegations stated in the fourth paragraph of the Complaint in that they call for a legal conclusion. In so much as a response is required, Defendant denies. Defendant has insufficient knowledge to admit or deny the allegations contained in the fifth paragraph of the Complaint. Defendant objects to the allegations stated in the sixth paragraph of the Complaint in that they call for a legal conclusion. In so much as a response is required, Defendant denies. Defendant denies the allegations stated in the seventh paragraph of the Complaint. Defendant denies the allegations stated in the eight paragraph of the Complaint. Defendant denies the allegations stated in the ninth paragraph of the Complaint. Defendant specifically denies each and every allegation of the complaint not specifically admitted herein. Defendant specifically pleads the follow affirmative defenses: arbitration and award and lack of subject matter jurisdiction - the underlying contract and terms and conditions contain a private arbitration clause which the Defendant has elected to exercise. Therefore, this Court does not have jurisdiction to hear this matter. Defendant reserves the right to plead further and reserves objections on the basis of lack of jurisdiction over the subject matter, lack of jurisdiction over the person, failure to state facts upon which relief can be granted and failure to join a party under Rule 19, if any. WHEREFORE, pleading affirmatively, Defendant prays that the Complaint filed herein against him be dismissed, for his costs herein expended, and for any and all other just and proper relief. DATED this <date> Respectfully submitted, <your signature>, pro se <your address and phone number> And the Certificate of Service from my other email
  21. 2 points
    Generally the court doers not require you show proof they RECIEVED it, only proof that you SENT it. The Certificate of Service is that proof. The entire point of it is that you are essentially 'certifying' under oath to the court that you took the action of mailing them a copy. IMO, mailing it certified is overkill. YOu go line by line down their complaint and answer everything they have alleged in it.
  22. 1 point
    Yes,ignore any and all letters or calls from them. In general discovery ends 30 days before trial date.
  23. 1 point
    I deserved that! Yes I waited too long to file. Thank you for responding. I received an email today from JAMS forwarding an email from the lawyer. He said that his client is electing not to participate in the arbitration process and they have dismissed the lawsuit. I haven't received any notification that the lawsuit was dismissed. JAMS responded that they will proceed with arbitration unless it is withdrawn by the Claimant. I responded that I would like some time to confirm the dismissal of the lawsuit before considering dropping the arbitration. I then emailed the lawyer directly saying I would drop the arbitration in exchange for a dismissal with prejudice and payment for my JAMS filing fees. We will see what happens next. Have you ever seen a law firm refund the JAMS fee back to the claimant? Again, thanks for your time!
  24. 1 point
    You're most welcome. Listen, you're being tasked with learning a whole new skill set in a whole new language under duress with high stakes. If you don't ask, you might make a mistake and not even know it until it's too late. Your thread will contain a lot of information to help the next poor deer in the headlights soul who finds his/her way to this forum. Thank you. My participation on this forum began as way to "pay it forward," and I encourage everyone here who gets a helping hand during a difficult time to do the same in any way they choose. A little unexpected kindness can be a powerful thing.
  25. 1 point
    Congratulations! 👍
  26. 1 point
    I would let court go and not try to reopen the case there. However, your arbitration is technically still pending, correct? I would try to send the attorney a settlement offer saying you will dismiss the court ordered arbitration case against their client in exchange for a mutual release agreement. A "mutual release" settlement would be worded that you are released of all liability regarding the account and debt. This would be just as good as a dismissal with prejudice. I don't know if they will respond or just ignore the entire arbitration until it's closed anyway, but it's worth a shot imo.
  27. 1 point
    It would be best for you to post the MTC and the other motion papers for comments/proofreading before you file them. Also, don't be suprised if you receive a pretrial statement from Plaintiff. BitsyM's thread has what she received, plus a discussion with suggestions on how to fill it out.
  28. 1 point
    According to @nobk4me : JDB's can not use small claims division of Municipal court anyway, so it seems to be a non-factor in these types of cases. "In Ohio, Municipal Court is not the same as small claims court. Muni Courts have a small claims division, but in Ohio, JDBs can't use small claims court. http://codes.ohio.gov/orc/1925.02 (assignees can't bring cases there) "
  29. 1 point
    My opinion and usual suggestion on this specific matter is to use this action as part of your arbitration claims after your MTC is granted. Using this argument in arbitration does a few things: 1. If you are wrong or the arbitrator disagrees, it sets no precedence. 2. If you are wrong or the arbitrator disagrees, it still uses up a lot of the arbitrator's time and can cause extra discovery issues to require the arbitrator's time, and that is the goal in arbitration. 3. It gives you SOMETHING to use as leverage to end the arbitration sooner and get your mutual dismissal (or better). Because there is no solid case law going either way on this matter yet, there is no "solid violation", but it is still a good argument with at least some kind of cases to be used to support your argument such that it can not be considered a frivolous arb claim.
  30. 1 point
    @Want2beclear Exhibit A is an exhibit that is attached to your Civil Answer and Affirmative Defenses. Prior to it becoming "Exhibit A," it is a notice letter sent CMRRR (USPS CMRRR # indicated in the body of the letter) to Plaintiff via its attorney, accompanied by a proposed order. Just to be extra careful, I would include in the notice the attorney's name from the Complaint, just under the Cavalry SPV I, LLC., above the firm's address. I also would include the attorney's name on the envelope, to make certain the attorney of record gets it. Make a photocopy of the envelope and the signed notice letter exactly as they appear before you seal the envelope. This way you will have a "true copy" of the letter as it would have been received by the attorney, plus proof of mailing, and later proof of receipt with signature. This signed receipt and USPS notice of delivery will be included in the attachment to your affidavit submitted with your MTC. Everything else looks good. Reminder: I am not an attorney.
  31. 1 point
    Maybe sometimes it is. State law governs the procedural defense of statute of limitations. Yet a defendant isn't limited merely to asserting the SOL as an affirmative defense, she also can file an FDCPA complaint - many of which have been successful. As I've mentioned before, the Bentrud opinion states , "If Bentrud is concerned about Bowman-Heintz resuming litigation after he elected arbitration—a procedural oddity, at worst—his remedy sounds in breach of contract". The opinion doesn't state that Bentrud is limited to filing a motion to compel, but rather that he has a cause of action in breach of contract. That is the remedy recommended in the precedent opinion, regardless of damages. The availability of one remedy doesn't necessarily exclude the availability of some other remedy. Yes, Bentrud is governing precedent in the 7th Circuit. But there is not yet even any circuit split. Consider this case. The opinion is not consistent with Bentrud. Remember the circuit history of delegation. There was a lone circuit decision for over 4 years before there finally was a split, and then another, and then another before it bubbled up to the supreme court and ended with Rent-A-Center.
  32. 1 point
    To be specific, a debt validation letter should both dispute the account and request validation. The example given by @fisthardcheese did both. Send it to the address of the party who sent you the letter. That would be Stenger & Stenger. LVNV would be under no obligation to respond because that company did not send you the communication.
  33. 1 point
    I didn’t mean to imply that I thought the sentence prohibits arbitration for collection lawsuits. You had asked the OP which part he thought prohibited it, and I just meant to show that he might be referring to that sentence. I should have explained my response.
  34. 1 point
    The law is not completely settled on whether filing a court case after election of arbitration is an FDCPA violation or not. True, there is no case law backing it up. OTOH, I am not aware of any case law saying it is NOT a violation. If there is any, please let me know. At least there wasn't in the old days when I used to use this strategy years ago and it worked well. If there are bona fide violations, and @pulpfiction0 has been aggressively suing, most debt collectors will want to shy away. Web Recon even provides lists to its members of people to avoid. I remember, there was a law firm that had lost to me twice. At one point they got third case against me. They contacted me. I called them up and reminded them of who I was. They dropped that account like a hot potato. The strategy of sue-a-lot is riskier these days, because debt collectors are a lot more careful. In the old days, there were ALWAYS violations, and often TONS of violations, by the time any case got to court. But those were the old days. Would an election of arbitration in a DV letter be sufficient for Midland to forego suing? Maybe, maybe not. Would it hurt to try? I don't think so. I agree with sending a notice along with the
  35. 1 point
    Very important advice! Also, we all need to remember that the specific details of fact for each poster and the poster's state laws/rules may be different. One size does not fit all.
  36. 1 point
    I was sued by Winn too. They do not answer to discovery request. (Jerks). Don't forget about the frame time to file the CCP 96. Somebody lost the case against them for filling 2-3 days too soon. Please update what you do. My court date is in early 2020. Good luck.
  37. 1 point
    @navy joy Just to let you know, @sadinca is currently not active in the forums (job change). He left the documents here for me (and anyone who needed them) by mistake (he was supposed to leave them in my thread 😂). We really didn't mean to hijack @Inthedred's thread. Just wanted to let you know that, since you may get more traction/answers/help in your own thread, and wouldn't want you to waste time on a tangent thread. Unless, of course, you have a question for @Inthedred.
  38. 1 point
    @Xtreme98 Attached is a redacted version o f the MTC I submitted Motion to Compel Redacted_Redacted.pdf
  39. 1 point
    @Xtreme98, imo if you don't live far from the county seat, file anything you need to file now or in the future directly with the clerk at the courthouse. If you live way out, forget it. As people have mentioned, some court clerks are nice, and some are 'snotty.' Just be as friendly as you can be, thank them in advance for their time, etc. You'd be surprised how just being nice can cause a clerk to do all he or she can to help. Of course, they can't answer legal questions, but will stamp and file whatever it is you bring them. A friendly clerk might tell you that you did not put a 'Certificate of Service' page on whatever you're filing, or that something must be notarized -- telling you that "Mary on the 2nd floor is a notary public." You get the idea -- sometimes they help, and other times they are helpful. Don't get me wrong. None of the above is particularly necessary, and may be of no help whatsoever. It's just an extra 'touch' that can do no harm, imo. Would I do this in Pulaski County? Absolutely not. Too many cases, too many clerks, too many people waiting. In a small county, yes! Specifically though, a clerk may not know how to file a "motion," but they do know how to FILE. If you presented your case number on a piece of paper, and wrote 'ABCD' on it, they will file it with everything else that's part of the case. Thanks, Jimmy
  40. 1 point
    I just want to say a big THANK YOU you to the both of you for this specific thread. I am being sued by the same attorney. It is because of this thread that I feel much better about fighting this. I will start a new thread in the next day or so regarding my journey as well. Kudos to the both of you!
  41. 1 point
    @Jphilli This recent thread is NY, Suffolk County, same debt buyer plaintiff, and Synchrony (PayPal) agreement. I realize this is frightening and stressful. Take your time to read up and ask questions. You have to submit an answer by the deadline, which gives some time to learn before you need to do anything.
  42. 1 point
    The one affirmative defense that I think is worth pursuing is statute of limitations (when it applies). From your answers you understand that the SOL affirmative defense wouldn't apply to your case - so I think you're general denial is fine. You are correct, a Bill of Particulars isn't proper for an Account Stated complaint. But that doesn't mean you can't ask for it anyway - of course they can object, but they'll have to write that up and send it to you, which makes them work How do you know you cannot pursue arbitration because it's Capitol One? Did you pull a Cap1 card agreement from the year the alleged account was opened to make sure there is no arbitration clause? Even if arbitration is not available to you, defending your case as-is is a good option. CA laws place the burden of proof on the plaintiff, and they don't make it easy on them (so long as you know how to press that advantage), see this thread for a basic rundown of trial strategy: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/
  43. 1 point
    Your friend could argue that the court is not the correct venue but then, the court would dismiss without prejudice and they would file in the correct court. That would buy your friend some time to get the loan agreement and they would have to pay to restart the case again.
  44. 1 point
    It's a violation, but not in your favor. The other person would themselves have to bring the claim against PRA. I suppose you could try to argue what they sent was confusing and misleading, but even the 'least sophisticated consumer' would know it was a records mix-up. My point is it would never fly past a jury in court, but it might have legs for the purposes of making a claim in arbitration.
  45. 1 point
    I would use JAMS, as it's more expensive and has the reputation of being more consumer-friendly. Good job in court, by the way. You stood your ground against a judge who really didn't want to grant your MTC. But the law favoring arb is so strong he had little choice.
  46. 1 point
    So here's my rundown of what has transpired so far. Thank you to all that have answered me and provided guidance. I followed your advice above and after reading your very informative thread on arbitration @fisthardcheese thank you for that posting btw. I'm explaining this in detail for those of out there, like I was, that have no idea what to expect and are super nervous about it all. My experience is in FL and I am not saying this is the case for everyone but here is my own experience. I did not file an answer or MTCArb prior to this day as I was told by the judge's clerk that this was a mediation and not a trial so it wasn't necessary yet. tl:dr My MTCArb was granted by the judge. I now have questions about arbitration based on my experience as described in the last 5 paragraphs regarding my Hearing experience below. First was my pre trial conference (PTC) which I was very nervous about. Turns out it was way more relaxed than I anticipated. I showed up, sat for awhile, then was called to speak with the judge. He explained that this was a mediation and asked if I had any questions and I asked if this was where I asserted my desire for arbitration. He said no and tried to told me that I would have to participate in mediation. Bear in mind, I am in a smaller county in FL. So he sent me to sit back down for a bit and then was called by a very nice mediator who put me at ease quickly. He asked me a few questions about my name, do I understand what is happening, address, simple stuff really. He then called the attorney representing PRA, my nerves came back. The mediator explained who he was and why he was calling, asked for some contact details from the attorney and then asked the attorney what his claim was. The attorney stated that this is for a Synchrony Card and stated the amount was xxxx plus another xxx for court costs/fees for a total of xxx. He then asked me if I admit having the card, the amount was correct and if I admit to owning it. Nerves almost got me to say no, but I simply stated that I would be electing arbitration as stated in the Synchrony Card Agreement (SCA). He asked me if I was sure and I said I stated I would like to elect arbitration. The mediator asked me if I was sure, and again I said I elect arbitration. The attorney then stated to the mediator that this mediation was over as we weren't able to come to an agreement. The mediator said okay and said that he would be sent a court date. I waited a few more minutes and was called to the front again and given my court date and left. So I came home and tightened up my MTCarb that I had posted here as well as my answer. I then prepared the letters electing arbitration to PRA and their attorney. I waited a few weeks as I had 45 days until my case to send the letters to see if the case would be dismissed. Since it was not, I sent the letters CRRR to both and waited a week until I got back the RR from the attorney. I'm still waiting on the RR from PRA almost 3 weeks after. I then went to my court and filed my MTCArb, Answer and Judge's Order. Only those, I was told that any supporting docs could be presented at my hearing. So I watched online to see if my case would be dismissed by PRA. I'm glad that I did b/c otherwise I would've missed my MTCArb hearing as my court date was rescheduled to a later date for the hearing as well as all of my filings being added. I then downloaded them and sent them to the attorneys for PRA. On hearing day, I showed up an hour early just b/c of nerves again. This is a very stressful situation for a non-lawyer person as it feels like life or death.when in reality, the judge, clerks and even the opposing attorney was as nice as possible. Again, my area is different from yours so do not expect this to be your experience. So standing outside the court waiting, the opposing attorney asked if I was the person being sued and I said yet. He stated that PRA hadn't given him much info about me and asked what the hearing was for. I stated I had filed a MTCArb and he shook his head and said something to the effect that it should be granted b/c the SCA and FL Statute provided for it. We chatted about our personal situations for another 15 or 20 minutes and were then called into court. Again, nerves kicked in. The judge spoke, stated that this was a hearing to determine whether arbitration was to be granted or denied. I got the distinct impression that he did not want to send me to arbitration as he told me multiple times how bad arbitration is, how expensive, how much better to settle it today would be, why I should use court instead of arbitration and then finally said, tell me why you believe I should grant your MTCArb. I explained that 1) based upon the SCA I am afforded the right to "demand" arbitration according to its wording. 2) The FAA enforces my right to arbitration. 3) The Supreme Court upheld the FAA ensuring my right to arbitration 4) FL Statutes spell out that I have the right to arbitration as long as I followed the proper procedure which 5) I had done by sending letters to PRA and their attorneys prior to the hearing and I have all of this with me and notarized. The judge said "well, okay then." He turned to opposing counsel, whom I could see out of the corner of my eye smiling as I made my points and asked them to explain their objections. Opposing counsel said they had none as they had very limited information with regards to my case and that PRA had authorized them to agree to arbitration. The judge asked opposing counsel if they were positive no objections, and opposing counsel affirmed no objection. It felt too easy to me to be honest. The judge again tried to talk me out of arbitration with the same arguments as before which I found really strange, not in a good way to be honest. So my radar was pinging louder and faster than anything as this was just didn't feel like he was trying to help me at all. After trying to talk me into going through the court case, I told the judge thank you but I am ready to follow through with arbitration as I already have my JAMS form filled out if he would like to see it. He stated that he knew nothing about JAMS but there were some local arbitrators that could be used. He and opposing counsel talked about a few names and I said that I prefer to use JAMS. After about a half hour, the judge finally said that since opposing counsel had no objections and I had presented a good motion, followed proper procedure and adequately represented myself that he would be granting my MTCArb and staying the proceedings. I do realize that he had very little choice based on the law and that I wasn't all that persuasive. At this point my radar relaxed a little but is still pinging pretty good. He said that I would receive it in the mail but I figure that I should be able to download it. My apologies to the experienced for the length but hope it helps someone along their way. I do have questions about arbitration that will follow in additional posts though.
  47. 1 point
    I, believe that i mentioned yesterday, to show up and file your motion prior to going into the court room, that way your motion would be heard.
  48. 1 point
    @fisthardcheese Should the OP point out that the plaintiff knows it missed the November hearing on the defendant’s MTC and is aware that the hearing for that motion was rescheduled? Also, it appears that by filing the MSJ, Plaintiff is attempting to circumvent or deny Defendant’s right to arbitration?
  49. 1 point
    Exactly what I have been saying for years. They consider it a burden to merely have to get their feet down off of their desk (or miss a session of golf) to show up in court so when they can't accomplish anything when they get there it is like the end of the world to them. Said stack of papers includes the bogus affidavits, bill of sale and barely readable microfiche copies of old statements from the OC. Always go out of your way to be a thorn in their side making them work so they will go on tilt every time they come across your name on a paper.
  50. 1 point
    It doesn't matter what the agreement says, once JAMS accepts a case, their rules apply. The JAMS Minimum Consumer standard rules #7 states: " 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. " So, the maximum you could ever be out of pocket with JAMS is the $250. But even then, when the agreement says the bank agrees to pay all fees, JAMS won't bill the consumer for the $250.