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  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. 3 points
    Update: Had to file an appeal due to my MTC being denied initially. Appeal was won, and decision was overturned. I began the arbitration process, and JDB attorney has yet to pay filing fee. He sent an email to our arbitrator stating that in JAMS agreement, if claims are made in Court and other party is granted MTC, then it is JDB responsibility to initiate arbitration proceedings. In same email, it was mentioned that state case was dismissed. However, I have not received any documentation confirming that statement. Looks like I am in a good spot, but the arbitrator is wanting a response from me - seemingly agreeing with the JDB about who should initiate proceedings. Anyone ever ran across this situation? @fisthardcheese
  8. 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, with 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.
  9. 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.
  10. 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.
  11. 2 points
  12. 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.
  13. 2 points
    @themxb17 The Ohio threads by @MikeB35, with the help of Ohio's @nobk4me should have useful info for you.
  14. 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,
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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]"
  20. 2 points
    I’ve been wrong plenty of times. We’re all still learning. 🙂
  21. 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
  22. 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.
  23. 2 points
    Nothing good comes from speculation and guessing. The judge has his reasons and it is only based on procedure and law, not his personal opinion of you or the case (ideally - at least we must work under this assumption). I noticed that the Plaintiff really offered no real reason for a continuance, so this could be the reason for denial. You introducing your motion in court would give them a good reason for a continuance, however, also if you note that you do not object, could change the judge's mind and he might order a continuance. Don't let nerves take you away from the focus. You have your MTC that contains the solid case laws on why the judge must order arbitration. This is all that matters today. You will have time. I am confident this will not even be an issue.
  24. 2 points
    As I was told by a very wise person on these boards, you can't expect other people to do the work for you. I would call AAA today. Write a SIMPLE outline of what has transpired so you'll have something in front of you while you're on the phone... just in case you find yourself at a loss for words. Be professional and courteous.
  25. 2 points
    I don't think anyone can be any clearer in their efforts to help. You need to call AAA to get this resolved right now, not on the 12th, not tomorrow, not in an hour,
  26. 2 points
    This is very good info. I would suggest printing off these case names and excerpts to have in court with you as notes that you can refer to in the event the lawyer tries to say you waived your right by waiting too long.
  27. 2 points
    @Beachykeen You haven't filed an Answer to the Complaint in writing, you haven't sent requests for production of documents to plaintiff, and you have not answered any of their requests for documents, any questions in writing or made any written admissions to any statements, correct? You've attended a pre-trial conference where the judge suggested you and plaintiff privately discuss a settlement, and were unable to reach any agreement on a settlement, correct? Plaintiff may try to claim you waived your right to arbitration by your actions so far, but these rulings make a strong argument that you haven't. (I am not a lawyer.) Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) : "We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). We have long held that a party's contract rights may be waived by actually participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 680 (Fla.1973)." "The Florida Supreme Court has found that the right of arbitration can be waived by actions inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005). The Florida Supreme Court warned that the right to arbitrate "must be safeguarded by a party who seeks to rely upon that right and the party must not act inconsistently with the right." Id. For example, the active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived. See Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003); see also Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 688 (Fla. 2d DCA 2009). "Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners As-sociation, Inc. v. Ibis Isle Homeowners As-sociation, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012). "A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right." Inverrary Gardens Condo. I a&#036;&#036;'n, v. Spender, 939 So.2d 1159, 1161 (Fla. 4th DCA 2006) (quoting Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994)). In this regard, this Court, as well as the other district courts, has held that "propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration." McLeod, 15 So.3d at 688; Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) ("[T]he active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived." (emphasis added)); see also Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811, 812-13 (Fla. 3d DCA 2007). Ibis Lakes Homeowners, 102 So. 3d at 731.
  28. 2 points
    The United States Supreme Court has consistently explained that the FAA, which was enacted in 1925 as a response to judicial hostility to arbitration, establishes a liberal federal policy favoring arbitration agreements. McKenzie Check Advance of Florida, LLC v. Betts, 112 So.3d 1176, 1183 (Fla.2013)(See CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 669 (2012)).
  29. 2 points
    So I did confirm that the case was dismissed last week. Thank you guys SO MUCH! To answer the question, after winning the appeal, I filed JAMS paperwork to initiate the arbitration process. After several attempts by JAMS to collect the initial deposit from JDB, he sent an email saying that according to JAMS policy: ""On page 4 of that agreement, “Resolving a Dispute with Arbitration” is discussed. On the following page 5, under “How to start an arbitration, and the arbitration process”, under number 2, “If a party files a lawsuit in court asserting claims(s) that are subject to arbitration and the other party files a motion with the court to arbitrate, which is granted, it will be the responsibility of the party asserting the claims (s) to commence the arbitration proceeding.” All these conditions are satisfied in this instance. Therefore, under the terms of this agreement (JDB) must be the party bringing the arbitration"" Regardless, my case is dismissed. Still wanted to provide this info in case anyone else runs into this situation in the future.
  30. 2 points
    Did you file an answer at all? Anything that denied all their allegations in writing? I would type up an MTC using the template in the link in my signature. When you attend court, you want to cite the Supreme Court case law in that template which states that if there is a valid agreement between the parties to arbitrate, that arbitration is to be the preferred method. You would ask the judge to stay this case and order the parties to arbitration per the underlying Card Agreement contract. Bring the Card Agreement in with you that includes the arbitration section. Bring 3 copies of the Motion and the Card Agreement. 1 for the judge, 1 for the attorney and one for you to reference. If the attorney attempt to bring up the debt or any other aspect of the case, you should object and politely state that according to the Supreme Court, if This Court finds that there is a valid agreement to arbitrate between the parties, then all other issues are for the arbitrator to decide only. This means that with your MTC the ONLY issues the judge should decide on is if the agreement to arbitrate is valid. Which, if they somehow say you don't have a valid card agreement, then you would ask them to show proof that you don't have a correct copy. They won't have it, or if they have another agreement it should also have an arb section anyway. If anything happens that you are unsure of, such as the judge asking if you have something you don't have or a question you can't answer, ask the judge for a little time to find that. Ask for another 30 days. That is always a last ditch effort to extend it and come back here to re-group if needed. Midland does not even deal with arbitration. Once the court orders them to go there, they will want to agree to a complete dismissal. According to the card agreement and the JAMS rules, Midland is the one on the hook for all of the arbitraiton fees. You pay nothing.
  31. 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!
  32. 1 point
    Yes, affidavits are signed, or sworn to and signed, in the presence of a notary, and then the notary signs and/or affixes the seal if required. Yes, a copy of the original (signed, notarized) affidavit goes to Plaintiff, then the original with the proof of service to Plaintiff gets filed with the court. Sorry, I posted my latest before I read your most recent post. Call the clerk, or ask the clerk when you schedule the MTC hearing time and date if your judge wants a "judge's copy" before you waste the paper. Remember to make copies of everything sent to Plaintiff and submitted to court for your own files No, the court does not label your exhibits, you do. The "Exhibit A" cover sheet that you posted is fine. It's also acceptable to hand write it in at the top or bottom right corner of the first page, but your cover sheet stapled to the entire contents of Exhibit A looks more professional IMO. Law firms use digital exhibit labels for electronic filings or an old-fashioned exhibit ink stamp and pad or a printed exhibit label sticker, but some use the cover sheet as you have. You need to get on the court's schedule for motion hearings. Some judges have specific days for hearings. The Notice is to let the Plaintiff know what kind motion is being heard and the date, time and location of the hearing. Attaching the actual MTCA to the Notice of Motion and Hearing is allowed by MCR 2.119. At the bottom of the court form (shown below) it states first-class mail, so first-class mail must be an accepted method. If you sign this you are certifying (swearing) that you sent it by the method stated in the certificate of mailing. If you sent it by another method, like CMRRR, you must change the wording and then swear (certify) to that. (IANAL) I know of no requirement that the notice of motion and hearing be served CMRRR. Please reread the MCR 2.119 motion practice rules I posted previously to make certain you're compliant with them. CERTIFICATE OF MAILING I certify that on this date I served a copy of this notice of hearing and motion on the parties or their attorneys by first-class mail addressed to their last-known addresses as defined by MCR 2.107(C)(3). (IANAL) As I mentioned in a prior post, I believe you can fill-in the "Motion" section with something like, "See the attached Motion, Affidavit and Exhibit A," or "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A." The form has a place for the Motion Title: Motion to Compel Private/Contractual Arbitration and Dismiss,or in the Alternative, to Stay the Proceedings Pending Arbitration. Moving Party: Defendant pro se, Want2beclear.
  33. 1 point
    Hi Again, Case was dismissed without prejudice today 1 day prior to trial. Thank again for all your help. I hope they don't try this again as the last payment was May 2015 and now the SOL is over? The SOL clock does not stop when they filed their suit right? thankful and appreciative to all that helped.
  34. 1 point
    It is not an admission that you acknowledge the debt. A JDB claims to own the account and, therefore, is bound by the arbitration provision. How are they going to oppose it? The plaintiff can’t say it’s not a party to the contract because that would be admitting it does not own the account. It cannot say you are not a party to the contract because that would be admitting they sued the wrong person. The Consumer Financial Protection Bureau has copies of credit card agreements. By law, credit banks are required to provide their agreements to the Bureau. That’s where you would get the copy. 15 U.S.C. 1632(d) (d)Additional electronic disclosures (1)Posting agreements Each creditor shall establish and maintain an Internet site on which the creditor shall post the written agreement between the creditor and the consumer for each credit card account under an open-end consumer credit plan. (2)Creditor to provide contracts to the Bureau Each creditor shall provide to the Bureau, in electronic format, the consumer credit card agreements that it publishes on its Internet site. It would be difficult for the plaintiff or the judge to discredit a copy of an agreement that was required by law to be posted with the Bureau. “When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision. An agreement to arbitrate a dispute is an agreement to submit oneself as well as one's dispute to the arbitrators' jurisdiction.” Midomo Co., Inc. v. Presbyterian Hous. Dev. Co.,739 A.2d 180, 186 (Pa.Super.1999).
  35. 1 point
    Did you actually file to use the benefit? It is not automatic and not all financial losses qualify for the coverage. You have to apply and they approve or disapprove the coverage. What exactly is your counter claim?
  36. 1 point
    Please read MCR 2.119 Motion Practice rules below. If you do have to file the "contested" MTC after the rejection of the proposed order, you have to first schedule the hearing date for the motion and then "notice" the Plaintiff of the hearing date and time. Courts often have specific days motion hearings are scheduled. The court clerk will know what day and whether your judge requires her/his own marked "Judge's Copy" of the motion in addition to the one you file for the court file. Here is the MI Supreme Court Approved general fill-in form for the Notice of Hearing and Motion. In the "Motion" section you can write, "See attached Motion, affidavit and exhibits." or something like that, then attach your separate MTC with its own court heading and motion title, or you can I suppose write in your MTC in the space provided and extend it to several pages as needed. (IANAL) https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc326.pdf Rule 2.119 Motion Practice (A) Form of Motions. (1) An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must (a) be in writing, (b) state with particularity the grounds and authority on which it is based, (c) state the relief or order sought, and (d) be signed by the party or attorney as provided in MCR 1.109(D)(3) and (E). (2) A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C) regarding citation of unpublished Court of Appeals opinions. (a) Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits. (b) Except as permitted by the court or as otherwise provided in these rules, no reply briefs, additional briefs, or supplemental briefs may be filed. (c) Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type. (d) A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE’S COPY on the cover sheet; that notation may be handwritten. (3) A motion and notice of the hearing on it may be combined in the same document. (4) If a contested motion is filed after rejection of a proposed order under subrule (D), a copy of the rejected order and an affidavit establishing the rejection must be filed with the motion. (B) Form of Affidavits. (1) If an affidavit is filed in support of or in opposition to a motion, it must: (a) be made on personal knowledge; (b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and (c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit. (2) Sworn or certified copies of all documents or parts of documents referred to in an affidavit must be attached to the affidavit unless the documents: (a) have already been filed in the action; (b) are matters of public record in the county in which the action is pending; (c) are in the possession of the adverse party, and this fact is stated in the affidavit or the motion; or (d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion. (C) Time for Service and Filing of Motions and Responses. (1) Unless a different period is set by these rules or by the court for good cause, a written motion (other than one that may be heard ex parte), notice of the hearing on the motion, and any supporting brief or affidavits must be served as follows: (a) at least 9 days before the time set for the hearing, if served by first-class mail, or (b) at least 7 days before the time set for the hearing, if served by delivery under MCR 2.107(C)(1) or (2) or MCR 1.109(G)(6)(a). (2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows: (a) at least 5 days before the hearing, if served by first-class mail, or (b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or (2) or MCR 1.109(G)(6)(a). (3) If the court sets a different time for serving a motion or response its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order. (4) Unless the court sets a different time, a motion must be filed at least 7 days before the hearing, and any response to a motion required or permitted by these rules must be filed at least 3 days before the hearing. (D) Uncontested Orders. (1) Before filing a motion, a party may serve on the opposite party a copy of a proposed order and a request to stipulate to the court's entry of the proposed order. (2) On receipt of a request to stipulate, a party may (a) stipulate to the entry of the order by signing the following statement at the end of the proposed order: “I stipulate to the entry of the above order”; or (b) waive notice and hearing on the entry of an order by signing the following statement at the end of the proposed order: “Notice and hearing on entry of the above order is waived.” A proposed order is deemed rejected unless it is stipulated to or notice and hearing are waived within 7 days after it is served. (3) If the parties have stipulated to the entry of a proposed order or waived notice and hearing, the court may enter the order. If the court declines to enter the order, it shall notify the moving party that a hearing on the motion is required. The matter then proceeds as a contested motion under subrule (E). (4) The moving party must serve a copy of an order entered by the court pursuant to subrule (D)(3) on the parties entitled to notice under MCR 2.107, or notify them that the court requires the matter to be heard as a contested motion. (5) Notwithstanding the provisions of subrule (D)(3), stipulations and orders for adjournment are governed by MCR 2.503. (E) Contested Motions. (1) Contested motions should be noticed for hearing at the time designated by the court for the hearing of motions. A motion will be heard on the day for which it is noticed, unless the court otherwise directs. If a motion cannot be heard on the day it is noticed, the court may schedule a new hearing date or the moving party may renotice the hearing. (2) When a motion is based on facts not appearing of record, the court may hear the motion on affidavits presented by the parties, or may direct that the motion be heard wholly or partly on oral testimony or deposition. (3) A court may, in its discretion, dispense with or limit oral arguments on motions, and may require the parties to file briefs in support of and in opposition to a motion. (4) Appearance at the hearing is governed by the following: (a) A party who, pursuant to subrule (D)(2), has previously rejected the proposed order before the court must either (i) appear at the hearing held on the motion, or (ii) before the hearing, file a response containing a concise statement of reasons in opposition to the motion and supporting authorities. A party who fails to comply with this subrule is subject to assessment of costs under subrule (E)(4)(c). (b) Unless excused by the court, the moving party must appear at a hearing on the motion. A moving party who fails to appear is subject to assessment of costs under subrule (E)(4)(c); in addition, the court may assess a penalty not to exceed $100, payable to the clerk of the court. (c) If a party violates the provisions of subrule (E)(4)(a) or (b), the court shall assess costs against the offending party, that party's attorney, or both, equal to the expenses reasonably incurred by the opposing party in appearing at the hearing, including reasonable attorney fees, unless the circumstances make an award of expenses unjust.
  37. 1 point
    A, it was your own mess, as was mine and virtually everyone else that comes here looking for credit repair advice. B, you're not just talking about being aggressive. What you are describing is prohibited activity. That your opposition has chosen to let it slide for whatever reason doesn't change the fact that you've violated court rules in cleaning up a mess that you created. Again, to each their own, but it's irresponsible to make these sorts of suggestions without also explaining the serious risks that accompany them.
  38. 1 point
    @MysticRhythm ARBITRATION-RELATED LITIGATION IN TEXAS UPDATED AUGUST 2018 Waiver is addressed on pages 13-15. Some excerpts with footnote citations: "A party waives arbitration by substantially invoking the judicial process to the other party’s detriment.181 To determine whether a party has waived its right to arbitrate, courts look to the totality of the circumstances, including the following factors: (1) whether the party asserting the right to arbitrate was plaintiff or defendant in the lawsuit, (2) how long the party waited before seeking arbitration, (3) the reasons for any delay in seeking to arbitrate, (4) how much discovery and other pretrial activity the party seeking to arbitrate conducted before seeking arbitration, (5) whether the party seeking to arbitrate requested the court to dispose of claims on the merits, (6) whether the party seeking to arbitrate asserted affirmative claims for relief in court, (7) the amount of time and expense the parties have expended in litigation, and (8) whether the discovery conducted would be unavailable or useful in arbitration.182 No one factor is dispositive." 182 RSL Funding LLC v. Pippins, 499 S.W.3d 423, 430 (Tex. 2016); Perry Homes, 258 S.W.3d at 591-92. "There is a strong presumption against waiver.183" 183 Perry Homes, 258 S.W.3d at 590. "Mere participation in litigation is not enough to establish waiver.184" 184 In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006) (per curiam); see also In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006); In re Bank One, N.A., 216 S.W.3d at 827. "A party attempting to establish waiver must also show that it has been prejudiced. 196 Prejudice in this context is “the inherent unfairness in terms of delay, expense, or damage to a party’s legal position that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.”197 For example, the court found prejudice in Perry Homes where one party’s delayed arbitration request resulted in extensive discovery and delayed disposition, while at the same time limiting its opponents’ right to appellate review.198 A party asserting waiver should offer proof of how it would be prejudiced, rather than relying on general allegations of delay and expense.199" 196 RSL Funding, 499 S.W.3d at 430. 197 Perry Homes, 258 S.W.3d. at 597. 198 Id.; see also Raju, 709 Fed. App’x at 319 (affirming finding of prejudice where defendant was “required to answer the complaint, to file a counterclaim, to consult with two law firms, and to gear her legal strategy to court proceedings instead of arbitration.”). 199 See IBS Asset Liquidations LLC v. Servicios Multiples Del Norte SA de CV, 419 S.W.3d 573, 575-76 (Tex. App.— San Antonio 2013, pet. denied).
  39. 1 point
    Right - I doubt they are going to keep making the same mistake, but it's certainly something to keep in mind when folks come here with Cavalry suits.
  40. 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
  41. 1 point
    @Jimmy E I do believe at this time arbitration would be the best for this case. I have read so much my head hurts and still law confuses me. There is so much information on this site and understanding what i do about arbitration this is the course I will follow.
  42. 1 point
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Want to say THANK FOR ALL YOUR HELP with this journey. Couldn't of done it without your help. Everyone is friendly and very knowledgeable. Keep up the good fight against JDBs.
  43. 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.
  44. 1 point
    It's fine. Proposed orders are very minor issues. If the judge doesn't like something he will change it or write one up himself. The Motion is the most important one.
  45. 1 point
    Big congrats on your appeal! That is a huge win! You said you began the arbitration process but nothing is initiated yet? Can you clarify exactly what has happened step by step in JAMS so far?
  46. 1 point
    You can file an answer if you don’t engage in further litigation. The Thus "[t]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver." Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976). It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992). In a case factually similar to the case at bar, this court held that the filing of an answer two months prior to filing the motion to compel arbitration did not constitute waiver. Benedict v. Pensacola Motor Sales, Inc.,846 So.2d 1238 (Fla. 1st DCA 2003)(see Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999). In that case, the defendant's counsel had not received a copy of the contract which contained the arbitration clause at the time the answer was prepared and served. However, based on a review of the case, it is hard to imagine how the party opposing arbitration could have been prejudiced simply because the answer was filed two months before the motion to compel arbitration, absent any other participation in the litigation. Id. @fisthardcheese
  47. 1 point
    On the contrary, they have learned from longtime members on this board and previous ones, that something like a demand for arbitration letter is essentially the same as a dispute and to cover the legalities a verification of debt is sent. They are not obligated to do anything else unless you file an arbitration case and subsequent PTC in Federal Court.
  48. 1 point
    MORE DEBT COLLECTION CONFUSION AND MISCONCEPTIONS 1. THE CONSENT ORDERS BETWEEN THE CONSUMER FINANCIAL PROTECTION BUREAU (CFPB) and MIDLAND FUNDING and the CFPB AND PORTFOLIO RECOVERY ASSOCIATES ARE “LAW”. FALSE The CFPB is not a legislative body that can enact laws. Check out the following two links to the CFPB website https://www.consumerfinance.gov/policy-compliance/guidance/supervision-examinations/institutions/ https://www.consumerfinance.gov/about-us/the-bureau/ None of the information in either link implies the CFPB has the authority to enact law. Now to the Consent Orders. There is no statement in either Order that declares the provisions within those Orders to be “law”. The requirements listed in the Orders are imposed upon the “Respondents”. All one must do is read the Orders and the “Respondents” are identified. The Respondents are the defendants. The requirements are not placed upon any other debt buyers. If they were “law”, ALL debt buyers would be required to adhere to them. As to enforceability, the following is from the United States Supreme Court. The Supreme Court has held that "a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it." Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). While instructive, the Consent Order is not binding on this Court. Madinya v. Portfolio Recover Assocs., LLC, No. 18-CV-61138, 2018 WL 6590829, (S.D. Fla. Dec. 14, 2018) (See Christensen v. Harris Cty.,529 U.S. 576, 587 (2000)). The Consent Orders are between the CFPB and Midland Funding (Encore) and the CFPB and Portfolio Recovery. They include specific consumers who were affected by specific acts during specific timelines. Therefore, only those parties are affected by and can enforce the provisions contained within. Here is a quote from the Consent Order between Midland Funding (Encore) and the CFPB. Page 62 193. The provisions of this Consent Order will be enforceable by the Bureau. It DOES NOT state that courts can enforce the provisions. Just an added note, in the event the CFPB does not have to initiate another action against the two debt buyers, the requirements placed upon Midland and Portfolio expire years from the date of each Order. Page 62 of the Midland Order 190. This Consent Order will terminate 5 years from the Effective Date or 5 years from the most recent date that the Bureau initiates an action alleging any violation of the Consent Order by Encore. That same statement is located on page 58 of the Portfolio Order. 2. WHEN AN ORIGINAL CREDITOR TAKES A TAX DEDUCTION, IT IS KNOWN AS “ACCORD AND SATISFACTION”. THIS RENDERS THE DEBT SATISFIED AND LEGALLY, NO ONE CAN MAKE ANY FURTHER ATTEMPTS TO COLLECT ON THE DEBT. FALSE The following is from the U.S. Code of Federal Regulations. 26 CFR 1.166-1 - Bad debts (f) Recovery of bad debts. Any amount attributable to the recovery during the taxable year of a bad debt, or of a part of a bad debt, which was allowed as a deduction from gross income in a prior taxable year shall be included in gross income for the taxable year of recovery Notice the above cited federal regulation states "[a]ny amount attributable to the RECOVERY". Then it states "which was allowed as a deduction from gross income in a prior taxable year". Those phrases show that a business which claims a tax deduction for a bad debt is allowed to RECOVER some of that debt at a later time. Once it recovers some of that bad debt, it must claim the amount of the recovery as part of its income. This means that the original creditor can sue a consumer, or it can sell the account to a debt buyer in order to recover some of its loss. In the following ruling, the Michigan federal court noted that Chase and WFNB sold accounts AND were allowed to receive a bad debt tax deduction. Instead of amassing interest on a worthless account, Chase and WFNB sought to sell the accounts and shift the risk of nonpayment to a third party for a nominal fee. This practice also permitted Chase and WFNB to remove the account from the financial records and receive a bad debt tax deduction. See I.R.C. § 166(a)(2). McDonald v. Asset Acceptance LLC, 296 F.R.D. 513 (E.D.Mich.2013). As to “accord and satisfaction”, that defense is available only if the consumer is a party to the agreement. An agreement between the original creditor and the Internal Revenue Service regarding a tax deduction does not include the consumer. Allen v. R.G. Indus. Supply (Ohio Supreme Court, 1993) "An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Lazzarotti v. Juliano (Pennsylvania Supreme Court, 1983) "An accord and satisfaction is the result of an h which may be and usually does result from an implied agreement arising from the circumstances. If an agreement stems from a disputed claim, the acceptance of an amount less than the creditor claims to be due, when tendered by the debtor in full satisfaction of the creditor's claim, becomes a completed accord and satisfaction." Horizon Well Service, L.L.C. v. Pemco of New Mexico, L.L.C. (New Mexico Court of Appeals, 2015) "When considering the existence of an accord and satisfaction, we should examine the following elements: (1) [d]id the debtor make an offer in full satisfaction of the debt; [(2) w]as there an unliquidated or disputed claim which formed the basis of this offer; [(3) w]as this offer accompanied by acts and declarations which amounted to a condition; [(4) w]ere those acts and declarations such that the offeree was bound to understand them; and [(5) w]as the offer accepted in full satisfaction of the debt." MECO, Inc. v. Township of Freehold, NJ (Superior Court of New Jersey, Appellate Division, 2011) "The traditional elements of an accord and satisfaction are the following: (1) a dispute as to the amount of money owed; (2) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the disputed amount; (3) acceptance of satisfaction by the creditor." 3. DEBT BUYERS CANNOT REPORT TO CREDIT REPORTING AGENCIES. FALSE The Fair Credit Reporting Act does not differentiate between an original creditor, collection agency, or debt buyer. It refers to a “person”. Fair Credit Reporting Act, 15 U.S.C. 1681a(b) (b)The term “person” means any individual, partnership, corporation, trust, estate, cooperative, associati no one can attempt any further to collect this debt. Regarding collection accounts: Fair Credit Reporting Act (FCRA) - 15 U.S. Code § 1681c(a)(4) Requirements relating to information contained in consumer reports (4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. A debt buyer is a “person” as defined by the FCRA. As a “person”, it can report a collection acco From the Consumer Financial Protection Bureau -page 8 “Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).” https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf From Experian: “Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.” https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/ 1692e(8) of the Fair Debt Collection Practices Act (FCRA) (8)Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. The FDCPA only applies to debt collectors. This shows that a disputed debt applies to a debt reported on one’s credit report. From the Consumer Financial Protection Bureau -page 8 “Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).” https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf From Experian: “Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.” https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/ Midland Funding is a debt buyer. The following is from a consent decree issued by the Consumer Protection Financial Bureau with Encore Capital and Midland Funding. “i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement: ‘The law limits how long you can be sued on a debt and how long a debt can appear on your credit report.’” The above shows that due to a time limit, Midland cannot report a debt to the credit reporting agencies. Page 38 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf BUT, if the debt is not beyond the 7-year reporting period, Midland can report it to the credit reporting agencies. ii. for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement: "The law limits how log you can be sued on a debt. Because of the age of your debt, we will not sue you for it." Page 39 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf Notice that the two requirements in the Consent Order state when Midland can and cannot report debts to credit reporting agencies. If a debt buyer were not allowed to report to credit reporting agencies, the CFPB would not include those requirements.
  49. 1 point
    There is a big difference between how long they have to send you a bill, submit a claim to your carrier, and to sue on a past due balance. It sounds like you may be confusing the three. There is no SOL on how long they have to send you a bill. They can sue you up to 6 years past the date of service in VA as it falls under written contracts. How long they have to submit a claim to the carrier varies but is usually anywhere from 30 days to 6 months. Most insurers stopped allowing a year for claims a while ago. 6 years is correct. Written agreement to pay. WAY too late for a DV letter they already sued you and have a judgment. You have one problem is that if you do not answer the debtors exam interrogatories they sent you the court can issue an arrest warrant for failure to comply. I would immediately consult a Consumer Attorney to discuss the use of sewer service. You may have a claim against this doctor and the attorney who represented him. Most will do a first consult by phone and for free. If there is a case they will take it on contingency at no cost to you. Before you do anything or panic start there. Come back here for more help as you need it or have questions.
  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.