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  1. 3 points
    Lack of evidence of a claim doesn't inherently make it frivolous. Frivolity means you have no basis at all for the claim. Your own testimony that you saw numbers in your phone, returned the call and discovered the called party was Unifund is evidence. It's not enough to prevail on the claim if Unifund denies making the calls, but it absolutely pushes you past the frivolous threshold. This is why we keep telling you to quit worrying about "frivolous". You're not in that camp. The lawyer's ignorance over the fees is IMO a much bigger concern with potentially catastrophic results.
  2. 3 points
    After following much advice and reading many post over and over on this forum , I have had my day in court and my MTC arbitration and stay the proceedings was granted. In Louisiana you must file your answer , MTC and a memorandum in support of your motion, a little different than the MTC examples posted here. You must also state if a court date has been set, if not you must request a court date and include a order sheet. When I filed my MTC the judge ordered PRA/Rausch Sturm to show cause as to why arbitration should not be granted. I followed all the court rules and advise from this fourm. The Rausch Sturm attorney was served as required by my state. They did not object or show up to court this morning. The judge granted my order and chucked/smiled while signing it. He said he was impressed with my ability as a Pro Se. I thank everyone for their post about arbitration, without that I would have been lost.
  3. 3 points
    They didn't show up and I won my motion for sanctions against them. It's only $272 but I won, nonetheless. Fight back, folks! LVNV Sanction Motion .pdf
  4. 3 points
    Same story and congratulations - great job! Can't believe attorney said you got agreement from a "bogus website" - because I'm sure someone has the time, money and insanity to create a bunch of realistic, yet fake, credit card agreements and post them online - classic!!!!
  5. 2 points
    Things I would ABSOLTELY include with my reply: 1. I would state that I DO NOT object to a 60 day stay. 2. I do not object to filling the Demand for arbitration, and in fact, already have the paperwork ready to file immediately upon granting of Defendan't Motion to Compel. I would state that I am only waiting for the MTC to be granted, as it would be improper and against common sense to file an action in arbitration when the same is part of an active case before This Court. 3. I would submit a copy of a JAMS demand. --- JAMS --- since they are so sly as to mention all of the AAA rules in their response (I am assuming some attorney breifly skimmed the AAA rules only at some point to come up with their silly response). I would make my JAMS demand an exhibit in support of point number 2 above. 4. I would get as much case law as I could on MTCs granted after the start of a lawsuit to show that it is, in fact, commonplace to file MTC when a lawsuit is filed which contains an underlying arbitration clause. And also that there is NO case law stating that arbitration must be filed first. 5. USE JAMS. USE JAMS. USE JAMS.
  6. 2 points
    I see two options here (after skimming their response): 1. reply citing Capital One v. Rotman (https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf) The responsibility for initiating arb is on the plaintiff, not the defendant. 2. They have agreed to a 60 day stay. So you promptly initiate arb and pay the fee. The court should stay the case pending arb after that. Case should be over when they get the big arb bill.
  7. 2 points
    Notice where they say "To be clear, Discover does not oppose..." Discover? They copy/pasted this from another case!!!!
  8. 2 points
    1692c (c) Ceasing communication If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except -- (1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt. Did you send a C&D and they continued to call you? That would be an FDCPA violation, for the 9000 time. You already asserted "FDCPA violation" in your demand, so your brief should include this part of the FDCPA as what they violated. In addition I would motion to additional claims like I stated above. You MUST READ these statues and corresponding case laws. The TCPA is triggered when you said stop calling and they called your CELL PHONE. A statutory $500 PER CALL is allowed to be awarded for those violations.
  9. 2 points
    If Unifund and Pilot are affiliated with each other, you have to consider the possibility that Pilot didn’t sell the account to Unifund. It may have simply assigned or transferred the account to the JDB.
  10. 2 points
    Small claims in Wisconsin can be very different from county to county and even case to case within the county. In most situations, the magistrate or some other facilitator wants to get the case off the docket NOW. They have a rather heavy load. Sending the case off to arbitration gets the case off their load. I would suggest going into the hearing with a MTC in hand, and of course a copy for the opposing counsel. If possible, file this at least a few days before the hearing, and send a copy to their attorney CMRRR, so they can't claim they didn't get it. Trust me, if you do NOT send it Certified Mail Return Receipt Requested, many law firms will just claim they never got it, and that puts a burden on you. If you go into the hearing with the MTC, better yet if you have sent it in advance, then all the magistrate has to do is rule on your MTC on the spot. If you have written out a good one, then he won't listen to their complaints. Unless the magistrate just feels like ignoring the law. If that happens, you can appeal to Circuit Court. The advice of @firsthardcheese is not bad advice. It's just that if you have an MTC ready for action before you are even served, you can get this case over with at the initial hearing date. EDIT TO ADD: That, of course, assumes you can get an MTC ready in time. If you can't, ask the magistrate at the hearing for some time to prepare one.
  11. 2 points
    Personally, I think it’s a good thing that JDBs can buy debts. The reason is that the OC can sue you, or a JDB can sue you. You have a much better chance of winning if you’re sued by a JDB. In addition, JDBs are bound by the FDCPA whereas OCs are not.
  12. 2 points
    Hello All, LVNV did file a trial de novo as expected however, I filed a motion for monetary sanctions in the amount of $3,500 for their failure to attend the arbitration hearing and they immediately filed a request to dismiss the case. Hmmm, I know they will be back and if not them one of the other pretender debt collectors with phony assignments and BS. When they rear their ugly heads I will be ready. Good luck to all of you and may God Bless you and your Journey with these lying thieves. LVNV Request for dismissal .pdf
  13. 2 points
    Arbitration is very informal. Many people just type up an email with these things. I, personally, format them in the Federal Court format just as a way to dab on the opposing attorney Timing is the most important aspect, however. If you don't have time to do a formal format, just put it in the body of an email.
  14. 2 points
    Just assume they have enough to win (they almost always do these days) and use the arbitration strategy to make them dismiss the lawsuit. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  15. 2 points
    If the plaintiff has sent you discovery, you need to answer it, but in a particular way so as not to waive your arbitration rights. You need to OBJECT to them all, citing that arbitration has been elected, and the scope of discovery is to be determined by an arbitration forum.
  16. 2 points
    Yes, in my arb case in a muni court, I noted that as well. So I styled my motion as a Motion to Dismiss, or in the Alternative, to Stay Pending Arbitration. The case wasn't dismissed but was stayed. You definitely want to ask for a stay, since Ohio law makes a stay mandatory if there is a valid arb clause. But, in the years since, a number of posters here in Ohio have filed MTCs in muni courts, with success. It apparently doesn't make a difference.
  17. 2 points
    And ONLY change part of the arbitration section to state that the consumer is responsible for their portion of the filing fee per the JAMS consumer rules. I guess that means the person setting up this site making these changes are also making bogus JAMS rules stating that the consumer is only responsible for $250 and not 100% of the filing fee.
  18. 2 points
    UPDATE: Well, the attorney met me in court yet again and the judge wanted to know what was going on with this case and mentioned that this is the longest case he had ever had regarding a debt collection. The attorney blabs on about how I agreed to pay the full amount of the filing fees and also said that it didn't seem fair that they had to pay $1250 and I only had to pay $250. Haha. That made me laugh a little. He obviously ignored every piece of mail that I sent that had the JAMS rules and fees. The judge took some time to read the letter the attorney sent and my response. Then he asked how much was in question, which was ~ $950. Then he asked for the credit card agreement, which I gladly gave him. I had a notarized affidavit, and he told me that didn't matter, that I'm not allowed to certify anything. Don't really know what that meant. Then the attorney stated that I got that agreement off some bogus website, and who knows where I got that. The judge asked PRA if he had an agreement, and the attorney said no. Then finally, the judge told the PRA attorney, "I hate to say this, but the language in this agreement says that if the dispute is under $75,000, then the consumer pays their portion of the filing fees, which in this case is $250. No where does it say that the consumer has to pay 100%, and I don't recall the defendant saying that either. So you can decide to proceed with arbitration and pay the filing fees and hope to recoup some of that money back, but I'm not sure if that's what you want to do when the dispute in question is $950. Or you can dismiss this case. You have 60 days to pay the filing fee or this case will be dismissed." Although the way he worded it made it sound like he was apologetic to the PRA attorney because it was out of his hands. This is the judge that does not like me, and questions every piece of document I submit. Anyway, YAY!!! Thank you all for helping me through this case until the very end. I'll still need to wait 60 days to see what this PRA attorney does, but crossing fingers he won't pay, then I can request a dismissal after that period is over. I've been fighting this guy for over a year. I appreciate all the advice here, and the confidence you've given me! I think I've had 6 cases go to court, two I had to settle until I found this board, and now, this is my 4th that I've been able to get dismissed thanks to everyone's help. However, each time I get one dismissed, I seem to get another letter in the mail. My backstory is basically a family medical emergency which cost us our whole life's savings, and in order to stay in our home and have food, we had to stop paying on CCs. Trying to slowly climb back to where we used to be, so I really am grateful to the people that help with their experiences and strategies and advice. It has made such a huge difference!
  19. 2 points
    You have to do 7503(a) no matter what if going the arbitration route. That's simply making a motion, the motion process itself is more or less pretty basic even if the argument can be complex. That's not that bad. However, if you also follow (c); when you make the motion creditor can't say arbitration agreement is invalid. Which is pretty nice to have in your pocket.
  20. 1 point
    Oops, right. We did. I've got to reread that thread. Thank you. You did an awesome job yourself!
  21. 1 point
  22. 1 point
    I also misunderstood @Harry Seaward's point, but he is exactly right. The goal is to get them to lose by folding. rather than lose by winning. They will lose, either way, with the bill, but if they follow through, they could win the case. Not sure it makes a difference in this case, as it seems limited to the alleged FDCPA violations - nothing else. In the 22K case, if that gets to arbitration, you don't want her going all the way to final judgement. But to Harry's point - it seems important to clarify, even if that means another call, that Unifund is not getting their money back - lawyer needs to understand that in no uncertain terms.
  23. 1 point
    Is this something that should be brought up now, perhaps for it's own call/hearing - something to get "on the record," that this is a Consumer Arbitration, with no further financial exposure to said Consumer? Just to avoid the Discover fiasco? Seems highly unlikely. Isn't this akin to taking Best Buy to arbitration over violations to a service agreement for a TV and having Best Buy try to use that proceeding to go after late payments on a toaster oven?
  24. 1 point
    Submit the proof you have and stop worrying about it. YOU NEED TO SUBMIT THIS ON TIME AND SEE WHAT THE OTHER SIDE REPLIES WITH BEFORE YOU KNOW ANYTHING ELSE. When consumers show up to court very unaware of procedures and laws, do these attorneys cut them any slack and do judges allow that to be a defense? Seems like the same situation to me.
  25. 1 point
    Don't get hung up on this. The courts are not "out to get you". If you are served only 9 or 10 days before a hearing, just show up to the hearing with at least an answer that denies everything. Tell the judge you were just served and have not had time to look or prepare anything yet and ask for more time. Perhaps even say you intend to file a Motion to Compel Arbitration in this case, but need 15 - 30 days to do so. The judge will understand that having only a few days is not enough time and will set a new hearing date. Now, in the meantime, just prepare your answer and work on your MTC. With the help here, you can possibly have everything ready to do anyway for when you are served and it won't be a big deal anyway.
  26. 1 point
    I defaulted in the days when arbitration had just dramatically changed, collectors had no idea what to do about it, and records were often bad. Just the threat of arbitration used to keep debt collection attorneys at bay. Then, right before SOL, I started hearing from lawyers about old debts. In one case, and I am NOT making this up, a small town law firm lost their one and only debt collection attorney, and my file sat in the bottom of a desk until a new lawyer discovered it right before SOL. There is something I did in arbitration I could not do in court. Some of the arbitration agreements had clauses that Delaware state law be used in arbitration. Delaware state law SOL is 3 years. So I countered their claims by saying they couldn't collect on these debts past 3 years. Nobody was willing to take that to the hearing.
  27. 1 point
    If I'm not mistaken, Synchrony clause has language that states they will pay "if a Motion to Compel exists." BK is right - get MTC granted, before demanding payment - but they will fold then, anyway.
  28. 1 point
    I had a partial win. They didn't show up for court ordered judicial arbitration in California. I in turn filed a motion for sanctions. After I filed the motion for sanctions they dismissed the case without prejudice and the court still heard the motion and I won a couple hundred dollars. LVNV Sanction Motion .pdf
  29. 1 point
    Yes. A class action is when you have multiple plaintiffs suing one defendant. The “class” has a class representive who, for lack of a better description, is the main plaintiff. The lawsuit is in his name, and he stands in place of each of the class members (other plaintiffs). The allegations in the complaint would be based upon each class member’s account.
  30. 1 point
    Be sure to study this thread on arbitration:
  31. 1 point
    I just found this WA case discussing waiver of arbitration: https://scholar.google.com/scholar_case?case=14880428191182346048&q=waiver+arbitration&hl=en&as_sdt=4,48 So based on this, I would be looking at filling an amended answer to assert your right to arbitration. You'll have to check your court rules for procedure. It usually involves filling a motion with the court to grant you permission to file an amended answer.
  32. 1 point
    Do you happen to have the original contract? Is there anything in there about arbitration?
  33. 1 point
    I suppose it's true that they CAN refuse, but they haven't yet. I highly doubt they would. But, also, even if they do, AAA is potentially available as well if the contract language has the usual language saying if JAMS is not available another similar arbitrator may be used.
  34. 1 point
    Use whatever claims you have that you can support with at least SOME kind of evidence. Barclays has agreed to mutual dismissals in the past, so I would at least shoot for that kind of settlement once you get your claims filed and the arbitrator is appointed. They are not as hard line as AmEx and will do a cost/reward analysis of your case. If they feel like arbitration will cost them more than they can recover from you, they may settle for nothing.
  35. 1 point
    First thing you need to do -- make absolutely 100% sure they can no longer collect. It sounds like you did the research to find out how long the judgments are active, but I don't want to assume. The reason for this -- applying for a mortgage can wake sleeping dogs. If this is not completely dead, they might come after you as soon as you apply for a mortgage. You also need to figure out what the repercussions are for having that on your record. Sometimes the mortgage lenders will go back a certain number of years, so it is possible they won't go back almost 15 years. I don't know for sure. You need to talk to the mortgage people at a bank or credit union. If they won't look back 15 years, maybe it doesn't hurt you to have that on your record. Assuming this is 100% completely and totally dead, you should be able to petition the court to have the judgment removed. The way to do this is different in every state, and your state is often different from other states. It can even vary from parish to parish within your state. In a nutshell, if this is truly dead, it may not even be worth the trouble to get this off your record. If it is worth the trouble, you could probably file with the court to get it removed.
  36. 1 point
    So, let's not give the judge or the plaintiff any wiggle room on this. Submit a properly drafted, proofread motion and motion papers with irrefutable citations as authority. And hope you don't have to use it!
  37. 1 point
    Judge's hands are essentially tied with arbitration rulings. There are so many state and federal case laws on the matter, thanks to the banks and other major companies want to hide behind arbitration so bad, that if a Judge does not grant your MTC he is ruling against Superior Judges from your state as well as the Supreme Court of the USA. That would make any denial overly-ripe for an appeal.
  38. 1 point
    Per the CMS, JAMS can refuse to accept jurisdiction because the original contract doesn't comply with the CMS.
  39. 1 point
    It sounds like you have, but you haven't been served yet. Take a look at your original loan paperwork to see if there is anything there about arbitration.
  40. 1 point
    Shortly after my above linked thread, my wife also fought Midland. She was successful by following in my footsteps. As you go through my thread, read all of it, as I did make mistakes in the beginning. I later was guided along the right path. I wish you luck , and if there is anything you need just tag me or PM me.
  41. 1 point
    Send the cease and desist. If they don't sue them.
  42. 1 point
    You did everything you were supposed to do. You didn't screw anything up. What law firm was this?
  43. 1 point
    You can beat Midland by using the Arbitration strategy and they will settle with you for $0. You just need to put in a little time and work to get it to that point.
  44. 1 point
    Or, should the title be: DISMISSED WITHOUT PREJUDICE (and how much of a win is this?) Ok, I realize there may be some pitfalls in that PRA could re-open my case. But, do they/would they do that? I ain't gloating. The lead up was stressful, I was flailing and there were some things I could've done better. See my original post. A recap of the past two weeks: My last hearing was to set a trial date of Feb 8. The judge handed us both an Advance Trial Review Order. ( Look it up for California to see samples of it.) I was confused by the document. It basically was an inventory of case evidence and witnesses. The contract attorney for the plaintiff filed it with nothing listed. (Suspicious: No evidence? No Witnesses?) I did the same. I was late to send out my Discovery/ Demand for Documents to the Plaintiff. This was a mistake. The deadline is tricky. I understood it to be 30 days before trial. But it closes 30 days before trial. I feel I still don't completely understand the deadline, but I now at least know to get it done early, at latest 65 days before trial. That being said- it would have been understandable and permissive for the Plaintiff to just ignore my discovery requests. However, they ended up replying the day before the trial with a point by point refusal of each of my discovery demands per my violation for CCP 2024.020(a) So, why even bother sending me that? Did they have to? Or, were they trying to psyche me out? Anyway... TRIAL DAY! I wake up early, keep a positive attitude, go the gym, "Mama Said Knock You Out" on repeat! Get to the court house early. Breathing deep. Courtroom doors open at 9:00 am sharp. Friday trial call. Everybody signing in. All kinds of people and civil matters stacking the day's schedule. Contract lawyer for the Plaintiff strides in, calls me out while he signs in and announces "I'm going to dismiss your case" . We wait for the judge to call us into the octagon to make it official. And that's it! 5 minutes. So, what happened here? Am I lucky? Did I simply answer and show up? Did I use the Magic Words? Well, like I said- no gloating here. I got TWO MORE of these things on deck.
  45. 1 point
    https://www.gabar.org/forthepublic/fileacomplaint.cfm
  46. 1 point
    @MikeB35 See Rule 10 (D). IANAL. As I read this rule, you are required to refer to an exhibit or attach the agreement as an exhibit to your affirmative defense section. RULE 10. Form of Pleadings (C) Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument attached to a pleading is a part of the pleading for all purposes. (D) Attachments to pleadings. (1) Account or written instrument. When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.
  47. 1 point
    AAA can do whatever they want. And they will almost certainly combine them. That would not stop me from submitting my strong objections, however, for the record.
  48. 1 point
  49. 1 point
    Hi Gotasha, Thanks so much for sharing your arbitration journey. Like you, I am dealing with Harris and Zide in CA, and the JDB is LVNV. My debt is also a little less than $2K. Your story gives me hope that despite their rudeness and bravado, Harris and Zide/LVNV will not pursue such a small amount all the way through arbitration. I am wondering if you can share more about how you got to judicial non-binding arbitration. Is this what you asked for, and if so, at what point in the legal/court process did you do this? I ask, because I'm still within the 30-day response period where I could ask LVNV to verify the debt and where I'm thinking of inserting the language that I opt for arbitration. I'm counting on the JDB to back off due to the cost of arbitration and offer me a settlement closer to what I can afford. Any thoughts or advice you can offer would be much appreciated!
  50. 1 point
    Want to be notified when someone responds to your posts via email? Mentions you by name in a post (that's what the @Mention link is for under your name when you post)? You need to set this in your notification options. 1. Go to the top right corner of the forum, click on your user name then: 2. My Settings > Notification Options> Notify me when there are new replies to my topics My Settings> Notification Options> Notify me when someone mentions me in a post 3. Select how you want to be notified and boom, you are in the loop!