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  1. 4 points
    Just to finalize this, I received PRA's Voluntary Dismissal with Prejudice several weeks ago. I can't thank each of you enough for your help and support. I would not have succeeded without the advice and information provided here and would've been screwed had I gone with some of the information on the internet. Again, my sincere thanks to all of you.
  2. 3 points
    Till Labor Day or the collapse of Civilization, which ever comes first - just like for everything else.
  3. 3 points
    A quick update: Following Firsthardcheese's advice, I sent the mutual dismissal letter and I was contacted by the JDB's lawyer. We agreed to a mutual dismissal with prejudice and a removal of the trade line from my credit report ! I checked the court website and saw their dismissal was filed on Feb 27th. I agreed to dismiss my arbitration (which I advised AAA to do). So Wow - this is a big relief. I could not have done this without the help of this forum - Thanks everyone ! I'll still be checking in if anyone has any questions or if I can offer any advice. I posted a copy of all of my redacted docs earlier in this thread.
  4. 2 points
    Capital One removed arbitration from its agreements in 2010.
  5. 2 points
    This is getting into the realm of psychology here. I would always show up in person to argue a motion, on the premise that the judge could see me as a real person, as opposed a disembodied voice. Even when the opposing party phoned it in. The judge probably has met all the lawyers. In current times, a judge might a LOT happier without humans in the courtroom. After all, judges are often quite old. Often times, when lawyers are about to retire, they work as a judge for a while. I had a great-great uncle in central TN who was on the bench until he was about 90
  6. 2 points
    This Indiana Supreme Court case has been cited 467 times according to Google Scholar: Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). '" . . . .Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). "A fact is `material' if its resolution would affect the outcome of the case, and an issue is `genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted)."' INDY AUTO MAN, LLC v. KEOWN & KRATZ, LLC, 114 NE 3d 32 - Ind: Court of Appeals 2018 "Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Our Supreme Court has cautioned that "[a]s long as competent evidence has been designated in response to a summary judgment motion, ... `weighing [the evidence] —no matter how decisively the scales may seem to tip—[is] a matter for trial, not summary judgment.'" Stafford v. Szymanowski, 31 N.E.3d 959, 963 (Ind. 2015) (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of evidence—of the facts— is required, then summary judgment is inappropriate."
  7. 2 points
    First, it would help if you could answer the questions listed here: I would wait to be served and answer the summons in court. And use the time you have now to research strategies. If arbitration is available, that is the best way to beat a JDB.
  8. 2 points
    It wouldn’t matter if he denied that it was his account. He’s being sued for the balance. The JDB claims it owns the account (and thus is a party to the agreement) and that it is the OP’s account. If the judge denied the MTC, then based on the case law, the denial would be reversed. This is from the Maryland ruling I cited. Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause "must rely on the terms of the written agreement in asserting [its] claims" against the nonsignatory. When each of a signatory's claims against a nonsignatory "makes reference to" or "presumes the existence of" the written agreement, the signatory's claims "arise[] out of and relate[] directly to the [written] agreement," and arbitration is appropriate. For the JDB to object to a consumer’s MTC because he cannot be a party to the agreement due to the fact that he denies having had the account, they would put themselves between a rock and a hard place. How could they make such an objection when they already sued the consumer and are claiming it, in fact, is his account?
  9. 2 points
    @Fishman93 Congratulations! Was the court case stayed or dismissed? Please reread Fisthardcheese's pinned thread on arbitration. I believe Fist advises that you include a copy of the judge's signed court order of your motion along with your claim demand to AAA. This is especially important if the plaintiff is Midland or one of the other JDBs that haven't complied with AAA's rules. Without the court order, AAA often sends a letter declining to arbitrate those claims.
  10. 2 points
    Yes, it's been stayed pending arbitration. I appreciate your response. I did reach out to a local lawyer and he did respond that it does indeed look like an FDCPA violation, and has requested to go over the case docs to make sure. Thank you!
  11. 2 points
    Most of the time an appeal is limited to the issues heard at the lower court. As was so eloquently and gracefully pointed out, I'm not from Georgia, so I'm apparently forbidden by the Georgia thread police from participating in discussions in threads for that state.
  12. 2 points
    So I did this and lit a fire and they sent me the mutual dismissal of claims with prejudice, I signed it and sent it back but it has not been filed and it has been over a month since I sent it back. I then emailed them about 2 weeks ago and haven't heard back. Am I okay to go ahead and file the JAMS form or do I have no recourse now that I've signed the MDOC? I'm nearing the 6 month deadline the judge established. I thanked you for your previous answer with the Thanks button but thank you again for taking the time to answer my previous question. And thanks in advance.
  13. 1 point
    You did attach the agreement to your MTC? If so, I would throw the language in the agreement along with AAA’s rules back on their face. The following is stated in the credit card agreement: 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (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. AAA’s Rules R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee Neither the arbitration provision in the credit card agreement or the rules of the American Arbitration Association (AAA) require that a case be filed with AAA case filing services before a filing a motion to compel arbitration. In fact, it is stated in the Barclays credit card agreement that “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.” As shown by the arbitration provision, arbitration may be pursued through a Motion to Compel in court. It is not stated a case must first be filed with AAA. The following is Rule R-2(a)(3) of the AAA. R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee The rule specifies that arbitration may be started “pursuant to a court order.” As with the arbitration provision in the credit card agreement, there is no mention of filing a case with AAA before a court order can be issued. Therefore, Defendant has complied with both AAA’s rule and the terms of the arbitration provision in the credit card agreement. The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Plaintiff has provided no evidence that AAA’s rules require a case to be filed with the arbitration forum prior to filing motion to compel arbitration with the court or before a court may rule on the motion. Wherefore, Defendant respectfully requests the Honorable Court grant Defendant’s Motion to Compel Arbitration and deny Plaintiff’s Motion for Judgment on the Pleadings or, in the alternative, Summary Judgment.
  14. 1 point
    Oh, so you disputed their entry on your credit report. If you disputed it as “not mine”, then they assume the account is a result of ID theft.
  15. 1 point
    Human tolerance will expire way before that!
  16. 1 point
    Neither Credence nor ERC are junk debt buyers. AT&T typically does not sell their bad debts. They farm them around from CA to CA. ERC is a credit report poisoner. It was "opened" in January because that is when ERC got the account. They may not have posted it to the bureaus until March though. NO NO NO NO NO. NEVER dispute by any online methods. Send a letter in writing CMRR to EX to dispute the debt. DO NOT use a cut and paste letter from the internet. Ensure your letter is unique to your situation and calls into question the date of default.
  17. 1 point
    It will last until the cases drop to the point where we can resume normal business. There is no Constitutional protection for a quick trial in civil cases, only criminal and even that can be interpreted to mean anything the courts decide it could mean in the face of a crisis.
  18. 1 point
    Thank you very much for your efforts on my behalf. I called MCM @ 10:51,told them of my situation,and was put on "temporary hardship status",I wrote down the person's name I spoke with,he was gruff,but not too bad. He then gave me a second phone number to provide any documentation they may require,I also recorded the name of that lady,SHE was very pleasant,and after hearing my information,doing several security questions she assured me that the account was put on permanent hardship and that all collection activities will now cease. I asked her to please send me a verification of that statement and she assured me she would. I'm assuming she has to,based on the recorded conversation. I very much appreciate your advice and wish I could high five you. With much relief ~Don
  19. 1 point
    As @fisthardcheese pointed out, it will do absolutely nothing except show them you are paying attention. These days, judges are trying to get as much of their docket done by telephone as possible. The odds that a judge would refuse a telephonic appearance are pretty much nil. In fact, the judge may order the entire hearing to be done by phone.
  20. 1 point
    What leads you to believe there must be an “affidavit of truth”?
  21. 1 point
    My advice would be don't believe a word Midland Funding LLC says on paper or in person and if possible keep all communication with them limited to letters (for your records). I recently had my case dismissed with prejudice when Midland Funding LLC got caught lying to the judge during trial. If Midland will lie to a judge during trial, they will lie to anybody before trial. The Consumer Financial Protection Bureau recently investigated Midland Funding LLC and Midland Credit Management and found they were (and in my experience with them still are) notorious for unethical and unlawful debt collection practices (here). You can file a claim against Midland Funding LLC and Midland Credit Management with CFPB if you suspect they are being dishonest in anyway, shape or form. Also, information for pursuing the arbitration route against Midland Funding LLC and other debt collectors could be found here:
  22. 1 point
    Yes? From what I've skimmed so far, you're entitiled to file a general denial answer and you asserted the affirmative defense of arb in it. Fisthardcheese advised how to respond to the MSJ. Check your rules of civil procedure to make certain you follow them. I am not a lawyer, but it would seem a properly drafted, filed and scheduled motion to compel arbitration is a material fact to defeat the MSJ. Can you please post the arbitration clause from the credit card agreement?
  23. 1 point
    Met with the lawyer this afternoon and he has agreed to take my case. Will update with the outcome!
  24. 1 point
    Just an update, I was able to talk to them today, and I could submit paperwork for medical issues, to just send what I have as soon as possible, they wouldn't tell me what to send "just what I have" and wouldn't agree to a timeline. So, I'm going to pull my medical documents for my back problems, the documents for the claim I filed with the VA and talk to my doctor and see if she will write up her opinion that I can't work
  25. 1 point
    I would just add to this that this is the ONLY case we know of where a JAMS arbitrator allowed the costs of arbitration to be awarded against a consumer. There have been many other cases I know of previously where the arbitrator DENIED such requests by the collectors, citing the JAMS rules against it. Technically the rules say it is up to the arbitrator, but also the consumer rules state that it can only be done if found to be frivolous. Because of the slight discrepancy, there is that very small chance it can happen like the case Harry points to. However, in my personal cases, I would always prefer to use JAMS for many other reasons, including that you can get full comprehensive discovery, easier in-person hearings, and a more fair unbiased arbitrator. Generally speaking.
  26. 1 point
    They may not actually call. However, once JAMS/AAa sends the bill to them with a deadline to pay, that is a good time to send an email to the attorney and tell them that in the interest of further time and expense you are willing to offer a mutual dimsissal with prejudice on this matter, and that your offer expires on the same day the arbitration deadline to pay is.
  27. 1 point
    Study up on the arbitration strategy. Best way to beat a JDB, expecially when the OC is Synchrony. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  28. 1 point
    First off, you can wait to be served but make sure that they do not try sewer service. Watch the court page. In California, you have the option of using arbitration or going to court since California has not adopted the electronic business records rules. In this case, arbitration would be easier because Synchrony Bank has the most consumer friendly arbitration rules and for a debt of this amount, JDBs will simply run away rather than go down the arbitration route due to the cost on them (minimum of 5 figures that they probably will not be able to recover).
  29. 1 point
    A FOAD letter doesn't have to be fancy. Here are two examples. Both of these legally preclude them from contacting you again. Occasionally they will ignore Example 2, which gives you an opportunity to sue them: Example 1: Dear Evil Debt Collectors, Never contact me about this alleged debt again. Yours, Your Name Example 2: Dear Evil Debt Collectors, I refuse to pay this alleged debt. Etc.
  30. 1 point
    That is especially rich considering their clients are using these clauses to keep their customers from enforcing their legal rights in court.
  31. 1 point
    I doubt if they will try to sue you again. If they do, it's a case of rinse and repeat. Arb again. Usually the second time they dismiss, it is with prejudice (but check your state's rules on this).
  32. 1 point
    If you would have answered "No" then the motion would have been denied, because you can not arbitrate a claim where you did not agree to arbitrate.
  33. 1 point
  34. 1 point
  35. 1 point
    Understood. I modified the original paragraph to read like this DEFENDANTS OPPOSITION TO PLAINTIFF MOTION TO MEDIATE COMES NOW the Defendant, My Name, pro se, submits this opposition of Plaintiff’s Motion to Mediate on the grounds that the court has already held a hearing and granted the Defendant's Motion to Compel Arbitration, the Plaintiff's counsel agreed to arbitration during that hearing, and a case has already been submitted and accepted by the American Arbitration Association.
  36. 1 point
  37. 1 point
    What would you have done differently if they had disclosed their witness ahead of time? Edit: at this point, your issue isn't with the plaintiff for failure to disclose. The potential issue is with the court for allowing the witness to testify against your objections. So the remedy is either a motion to reconsider (waste of time), or an appeal.
  38. 1 point
    @ej24 Here's the link to Midland's Consumer Bill of Rights info: CONSUMER BILL OF RIGHTS Article 2: Hardship -We suspend collection activities when a consumer demonstrates that he or she is experiencing significant financial hardship due to medical issues.
  39. 1 point
    Ok, so don't be surprised if they respond to your objection saying they want mediation first, which is their right under 44.102. If you claim they agreed, you have to prove that. If this is that important to you, I'd get copies of the court transcript for your hearing where the MTC was granted.
  40. 1 point
    Just wanted to update this thread. I reached out to the JAMS case coordinator to ask if I was holding anything back by not paying the$250. She responded that I was not, in fact they had not heard anything from the opposing law firm. About 3 days later I received an email from the law firm requesting a mutual dismissal. Case has been dismissed. Over 4k cleared off for the price of 2 certified letters, one trip to court, and LOTS of reading! You can do it!!! Another one down!!
  41. 1 point
    Either he doesn't understand what you meant by "arbitration", or they are realizing fighting these motions is a fool's errand. Most courts have compulsory arbitration (aka "mediation") that is sponsored by the court and is free to the parties, so its possible he thought that's what you were asking for. You'll find out once you get your arbitration case open and they get their first $1,700 bill.
  42. 1 point
    Had my court hearing today. Filed my motion to arbitrate. Their lawyer was fine with that. Got a 60 day continuance to return to make sure Arbitration process has been started. The only thing that seemed odd was the Lawyer said arbitration was fine before we were called up.
  43. 1 point
    I posted the linked thread above because it was the C & W law firm, and because the poster struggled to understand and follow instructions. I hope that @FUjdb can avoid those mistakes.
  44. 1 point
    It also seems that person didn't follow directions.
  45. 1 point
    Great outcome! Thank you for posting links to your documents. This will certainly help others from California. @fisthardcheese
  46. 1 point
    No, you will not have to pay thousands. Your cost is limited to the filing fee. If it were me, I’d have my MTC arbitration ready to be filed. You might also print out the JAMS forms and have them filled out to show the judge. Have you read this thread? https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ @fisthardcheese
  47. 1 point
    It's good that the agreements "pretty much" state the same thing, especially if the arbitration section is identical across all of the agreements. If you can locate the the exact branded name agreement with the correct APR with a date that is within the period your account was still in good standing, or one in effect with the last activity, that is the ideal one to submit with an affidavit. Even if challenged, all of the possible agreements you've located and any agreement the plaintiff could produce will have an arbitration provision that is favorable to you. The survivability clause of early credit card account agreements sometimes stated that the contract itself and not just the arbitration provision survived changes to the agreement and the termination of the account. When some of the credit card companies removed their arbitration provision, forum members were able to use their original contract containing the survival and arb provisions. In your case, the arbitration provision you've quoted survives the termination of your account.
  48. 1 point
    Thanks for replying, @Goody_Ouchless! One of my pet peeves in this great forum of ours are the people who comment with a "vomited" and extremely negative answer -- in the process scaring the -isht out of people who are already scared and asking for help -- and then leave. Most often these people offer no solutions whatsoever. Again, thank you for replying. 🔥❤️🔥 In my humble opinion, here is where I think we have to be careful, and make sure we point out CLEARLY words like "most states" when we are trying to help people. Sweeping generalizations are extremely dangerous in general (besides being faulty logic). But, especially when it comes to the law. I'm in California, so I tend to stick to helping California folks. That's my forte. That's where I've won cases. That's where I've actually guided other members of this forum to their own wins. I would never presume to know the intricacies of the other 49 states, and always make sure to point that fact out when I become involved in a thread. Your very last point (#4), pointed out the fact that for California, Texas, and "a couple of other states" it may be different. Thank you for doing that. Iin the spirit of "helping" (If I may be so bold), could we have, instead, led this discussion with something like: "For some states, like California, Texas, and a few others, information like this may still be useful. But be very careful, since a lot of the states, like (insert states here), have ruled differently (insert examples here), so you must be very thorough in making sure this applies to YOUR state and YOUR specific case." I mean ... "worthless" is such a strong word. Isn't it? Wonderful! This is crucial information that we must make sure to point out to newcomers looking at a pinned post for the first time! But ... "worthless"? 🤔 There is a lot to unpack in this paragraph: Is the advice old? Well, the first article was written 9-years ago, and the second 7-years ago. The age of the article must definitely be considered. Also, in which states the attorneys practice (the first one in California and the second one in Maryland -- both authors point out this fact). [Although, in the world of the law we still refer to things much older than this, right?] Is it "stale and worthless" -- we already addressed this above. The sweeping generalization made (this "doesn't work," this "doesn't work," this "doesn't work") that presupposes that every case, in every state, is exactly the same (except, perhaps, for those in point #4) ... Besides this being a fallacy of logic ... Is it helpful? "Chain of Custody" doesn't work because settlements of the various lawsuits brought by States have led to an industry-wide policy of debt buyers not reselling debts." Hmm ... someone I just helped win a case had a debt that was sold three (3) times. Yep ... four (4) different companies. And this win happened in the last two weeks (suit filed in 2018). Can this be happening only in California? Maybe. Doubt it, though. But, I am sure as heck not making any sweeping generalizations, or telling everyone that I know it for a fact. So ... here is where I am genuinely curious (I'm serious). Now, remember, I am in California. But ... 1. Other states don't let you face the affiant (person signing the affidavit) in person? 2. ANY piece of paper that anyone chooses to propound is AUTOMATICALLY ACCEPTED by the courts? So my 14-year-old niece can go on photoshop and doctor up some billing statements, I can grab Microsoft Word and type up some Bill of Sale, I can go online and find out your address, slap it all together, sue you, and I DON'T HAVE TO PROVE TO THE COURT THE VALIDITY OF THESE RECORDS?? When did the burden of proof switch to the defendant in these states?? Or is all I need to do is to get Tricky Sally Sue to sign on a piece of paper saying, "Yep, I do declare under the law of the state of (insert state here) that all of these papers here are authentic." And the court AUTOMATICALLY ACCEPTS this!?!? No matter who she works for? What her job is? When she worked there? Am I missing something here?? "As for legal technicalities and "magic discovery," most judges look at a pile of credit card statements with your name and address and put an end to the party right there." I mean .... I've seen some pretty funky Bills of Sale (no person or account named, dates that don't match, on and on ...). So ... nobody questions this? No one brings this up in court? Tricky Sally Sue just has to sign a "correctly worded affidavit" and NO MATTER WHAT ... EVERYONE IS TOAST? REALLY!? I mean ... really? (I'm serious) I keep hearing that arbitration is amazing and works like a charm. I've never used it, so I'm not going to even begin to offer an opinion on it. And I always tell everyone to PLEASE explore ALL options, including arbitration. After all, I'm not a lawyer. I'm definitely grateful to everyone who's blazed the trail for this option that has helped so many! IN CONCLUSION I do hope that you guys take the time to answer my questions (I'm genuinely curious and it would really HELP those new to this forum and this pinned thread!) I always try to be helpful in pointing out what may work and may not -- making sure people explore EVERY OPTION to the fullest -- without making any sweeping generalizations ("Well, this worked for me, so it will obviously work for you." or "This didn't work for me, therefore it will not work for you.") After all, I'm not a lawyer, and a particular strategy may work in a specific case, depending on the SPECIFICS of THAT CASE ... which may differ a lot or a little from a similar case. If everything was black and white as far as the law went ... then we wouldn't need the Courts of Appeal, State Supreme Courts, or US Supreme Court. Right?
  49. 1 point
    Now Unifund has filed a Summery Judgement, stating that AAA closed its case due to lack of payment. I have not payed the filing fee because I was waiting for Motion to Compel Arbitration to be granted first. I am writing up my opposition for summary judgement right now. The Motion to Compel Arbitration hearing is January 28, since they did not show up to the one in November. In the Summary Judgement, Unifund states "Plaintiff did not object to the Defendant’s demand for arbitration." So after I submit my opposition for Summery Judgement, would it be wise to submit a Motion to Dismiss since in the Summary Judgement they stated that Plaintiff did not object to demand for arbitration?
  50. 1 point
    @HockeyFan some helpful atty written blog posts here if you haven't ran across them yet. http://georgiacreditlawsuits.com/about-the-georgia-credit-lawsuits-blog/magistrate-court-trial-guide-contested-hearings-credit-card-lawsuits/ http://georgiacreditlawsuits.com/the-burden-of-proof-in-a-georgia-credit-card-lawsuit/