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Showing content with the highest reputation since 07/17/2019 in all areas

  1. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  2. 5 points
    Updating my thread as I am now officially finished. After initiation with JAMS PRA did not want to further the case so they asked for a mutual walk away. I told them only if it is w/prejudice. So this makes win number 3 now. Arb in Ohio is a viable strategy, and I wouldn't have been able to do it without the help from the wonderful community! This win is for you guys!
  3. 4 points
    Just wanted to give everyone an update of my case... I was able to get the digitally signed promissory note from Prosper and I filed the MTC arbitration with the court. While I was waiting to receive the promissory note I sent a letter to Plaintiff's attorney electing arbitration. There was a scheduling hearing on July 26th at which time the Plaintiff's attorney stated that they wanted to wait for the court's decision on the MTC arbitration before scheduling a hearing. The judge granted me a stay on the discovery and interrogatories since they were due the following day. I was called the day before the MTC hearing by the court clerk and she said that I had not provided the court with a courtesy copy of the motion. I literally had to leave work, run home and print everything out, 3 hole punch the 18 page document, rush to Walmart to get a binder (clerk said it had to be in a binder) and drive all the way downtown to deliver it by 3 PM. This was very stressful but I managed to get it done! The MTC hearing was on August 1st and, lo and behold, the Plaintiff's attorney filed a motion for non-suit without prejudice at the last minute. Sort of anti-climactic but at least it's over with unless they sell it to someone else that tries to sue again. Thanks again everyone for your assistance.
  4. 3 points
    First off, is there a case number on the papers you were served? If not, they plaintiff is using pocket docket and you will need to send your answer to the plaintiff, not the court house. This needs to be done within 20 days from the day you were served. If there is a case number on the papers, then you file with the courts but be prepared to pay the court fees which might be quite high for $1200 case if they are using civil court rather than conciliatory court. You indeed use the state form to file an answer and under affirmative defenses, you check "Lack of Jurisdiction" and in the reasoning part, you state that the contract contains an arbitration clause and that you elect to use arbitration. The arbitration clause has a small claims exemption but that is only if you sue. Again, see above as to where you send the form. If you have to file in the court, conciliatory court will be about $75 and civil court will be $0 if they used pocket docket (just make sure you send your answer to the plaintiff attorney using CMRRR postal method). If they ever do file in civil court, those fees are about $350. You have 20 days to prepare and file this with the appropriate person. You then need to prepare a MTC arbitration. We can help you with that too. What I would do is take as long as possible to answer the summons and complaint and then a week later, either send the plaintiff attorney the MTC (if pocket docket) or file it with the court (if filed in court). I don't know the cost of filing a motion in conciliatory court but it is $175 in civil court. We will help you get further if need be. Since the fees are so high, if you are in pocket docket, what I might do is once I send the MTC to the plaintiff attorney, I would offer them the $600 I would pay in court and arbitration fees as a settlement as long as they do not file in court (with the understanding that once they file, the deal is off).
  5. 3 points
    @Robby8900 I added "in Ohio" to the topic of this thread to help make it easier to find in a search.
  6. 3 points
    To test this, I did a number of searches in my local court. I searched the small claims court docket for the most common JDBs: Portfolio, Midland, CACH, Cavalry, LVNV. None had ever filed in small claims court. Others in Ohio can try similar searches.
  7. 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
    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.
  9. 2 points
  10. 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.
  11. 2 points
    @themxb17 The Ohio threads by @MikeB35, with the help of Ohio's @nobk4me should have useful info for you.
  12. 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,
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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]"
  18. 2 points
    I’ve been wrong plenty of times. We’re all still learning. 🙂
  19. 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
  20. 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.
  21. 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.
  22. 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.
  23. 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,
  24. 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.
  25. 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.
  26. 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)).
  27. 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.
  28. 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.
  29. 2 points
    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.
  30. 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.
  31. 1 point
    I also agree with the arbitration route. I know you feel swindled by them not applying the insurance coverage, but the reality is, clydesmom is probably right (especially with a bottom of the pool creditor like CreditOne) in that there is almost certainly a procedure for triggering the payments. You can read your card agreement if you're that interested in it, but honestly, i wouldn't bother. You said you could end up with a judgment against you if you "make a mistake". Honestly, you could do everything exactly right in court and still end up with a judgment. Getting the case out of court and in to arbitration is going to be your best bet at getting though this unscathed. You said they are asking for $10,000 judgment? Anything $10,000 or more is supposed to be filled in Superior Court. If the judgment they are asking for (minus court costs and legal fees) is less than $10,000 then justice court is the right venue.
  32. 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?
  33. 1 point
    I would let court go and not try to reopen the case there. However, your arbitration is technically still pending, correct? I would try to send the attorney a settlement offer saying you will dismiss the court ordered arbitration case against their client in exchange for a mutual release agreement. A "mutual release" settlement would be worded that you are released of all liability regarding the account and debt. This would be just as good as a dismissal with prejudice. I don't know if they will respond or just ignore the entire arbitration until it's closed anyway, but it's worth a shot imo.
  34. 1 point
    It would be best for you to post the MTC and the other motion papers for comments/proofreading before you file them. Also, don't be suprised if you receive a pretrial statement from Plaintiff. BitsyM's thread has what she received, plus a discussion with suggestions on how to fill it out.
  35. 1 point
    Might have stumbled onto something here. Check this out. Ohio Revised Code 1925.02(A)(2)(a)(ii). http://codes.ohio.gov/orc/1925.02v1 1925.02 Jurisdiction: (A)(2)(a): A small claims division does not have jurisdiction in any of the following: (ii): Actions on any claim brought by an assignee or agent, except a claim to recover taxes that is filed by any authorized employee of a political subdivision or any authorized officer or employee of the state or a claim filed by a person designated under section 1925.18 of the Revised Code to act as the representative of a prosecuting attorney; 1925.10 Transferring case 1925.10(B) In the discretion of the court, a case duly entered on the docket of the small claims division may be transferred to the regular docket of the court upon the motion of a party against whom a claim, counterclaim, or cross-claim is instituted or upon the motion of a third-party defendant. A motion filed under this division shall be accompanied by an affidavit stating that a good defense to the claim exists, setting forth the grounds of the defense, and setting forth the compliance of the party or third-party defendant with any terms fixed by the court. The failure to file a motion under this division to transfer a case to the regular docket of the court constitutes a waiver by the party or third-party defendant of any right to a trial by jury. Found this case which has some information in it but not exactly what i am looking for regarding ''Assignee'' https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2011/2011-Ohio-6281.pdf Here is a case that starts speaking about arbtration during a small claims case starting at {¶ 32}https://cases.justia.com/ohio/tenth-district-court-of-appeals/2017-15ap-911.pdf?ts=1497993336
  36. 1 point
    Im so glad I can help others going through tough times. Please keep in mind as you go through my thread that I did learn as I went. YOUR court rules may be different then mine, but make sure to check and see. I hope the info guides you to success, and calms your nerves a bit. Proofread many many times and check for any kind of errors.
  37. 1 point
    I agree. However, the Michigan defendant has to be mindful of answering the complaint allegations regarding the contract. To my knowledge, we've had at least one case where the Michigan defendant denied in his answer entering into the contract with the OC then later filed his MTC. The judge denied the motion, stating she couldn't enforce a contract the defendant denied ever entering into the first place. This is why I believe it's best to use the "lacks knowledge or information sufficient..." response if a defendant plans to later file the MTC.
  38. 1 point
    The law is not completely settled on whether filing a court case after election of arbitration is an FDCPA violation or not. True, there is no case law backing it up. OTOH, I am not aware of any case law saying it is NOT a violation. If there is any, please let me know. At least there wasn't in the old days when I used to use this strategy years ago and it worked well. If there are bona fide violations, and @pulpfiction0 has been aggressively suing, most debt collectors will want to shy away. Web Recon even provides lists to its members of people to avoid. I remember, there was a law firm that had lost to me twice. At one point they got third case against me. They contacted me. I called them up and reminded them of who I was. They dropped that account like a hot potato. The strategy of sue-a-lot is riskier these days, because debt collectors are a lot more careful. In the old days, there were ALWAYS violations, and often TONS of violations, by the time any case got to court. But those were the old days. Would an election of arbitration in a DV letter be sufficient for Midland to forego suing? Maybe, maybe not. Would it hurt to try? I don't think so. I agree with sending a notice along with the
  39. 1 point
    @Xtreme98 Attached is a redacted version o f the MTC I submitted Motion to Compel Redacted_Redacted.pdf
  40. 1 point
    Xtreme98, btw, you may find that saving the ARCP to PDF will be more helpful, since you can search for certain rules, or even keywords. While it's important to know as much as you can about ARCP, I believe you agree that arbitration is the way to go on your case(s). Over the course of time, the JDBs have tried to plug every legal hole that would lose them a case -- making arbitration the most attractive option, imo. Best, Jimmy
  41. 1 point
    Just a short and sweet letter will do fine: "Dear Attorney, I dispute this debt and demand validation. Sincerely Cibach" Just remove the quotes and replace whatever you need. Realize that validation is a real low bar to get over for debt buyers. They cannot repeat what they said but they do not have to supply a ton of stuff that some internet letter claim you can request. It just has to be a simple letter stating who the OC is and that they have done their due diligence and that you are the correct debtor. As to your 2nd question, when a debt buyer purchases a debt, the step into the shoes of the original creditor. They obtain the rights of the original creditor but also the responsibilities. That means that if the original creditor forced arbitration in it contracts, the debt buyer must also abide by the arbitration clause. In this case, Midland has taken the place of Synchrony. They have the rights that Synchrony had but they also have the responsibilities that Synchrony had too.
  42. 1 point
    Did you ever post the original complaint? It would be helpful to see that to ensure you addressed everything they had in there. Also, you need to add a Certificate of Service statement after your signature. Example: CERTIFICATE OF SERVICE The undersigned certifies that I have on the 26th day of July 2019 served <insert law firm name and address> with the foregoing Response by placing the same in the U.S. Mail, certified, return receipt requested with sufficient postage attached Your Signature, pro se I do recommend that you use certified mail, return receipt requested for ANYTHING you send to the Plaintiff via their law firm in case you need to prove they got it.
  43. 1 point
    I, believe that i mentioned yesterday, to show up and file your motion prior to going into the court room, that way your motion would be heard.
  44. 1 point
    Okay, let me put it this way. If I knew that I once had a HSN account backed by Comenity Bank, and that account contained a card agreement, and I have an agreement that is from HSN/Comenity Bank which has the same or similar wording and is from around or near the time my account was open, then I, personally, myself, would be comfortable stating in an affidavit that "TO THE BEST OF MY KNOWLEDGE AND BELIEF this is a true and correct copy" of my card agreement. Of course I can't say "without a shadow of a doubt" because the human brain is not flawless to that degree. That is why the legal term "to the best of my knowledge and belief" is used daily. You know enough to know. Do you see what I'm getting at? Because if you don't know at all, then you might as well not bother at all.
  45. 1 point
    If you haven't sent them a letter, just eliminate number 2 and renumber. It looks fine otherwise. If time permits I would try to look up some FL case law regarding arbitration to add in there in addition to the Supreme Court case. @Brotherskeeper might know of some FL case you can add. No need to bother mailing a copy since you aren't filing this until the day of the hearing and you will be handing it to the attorney instead. That will be your service to them. I would look for the attorney to ask for a continuance to have time to respond to your motion since you are filing it the day of the hearing. When they ask, I would tell them that you have no objection to a continuance and accept a new court date. This time will help you out too. If the judge denies your MTC you have the right to an appeal and SHOULD win on appeal, but I don't know what that would completely entail in FL off hand. You probably have somewhere between 10-20 days to appeal, so should that be needed you can come back here afterwards and figure it out. If the judge denies your MTC and wants to immediately move to rule on the alleged debt, ask for a continuance for 30 days (it's a hail mary to stop things and come back to re-group). If the continuance is denied, then do your best to refute their claims and make them prove that they 1) Have the proper chain of custody showing they in fact own this account and 2) can show how they calculated the alleged amount owed. Just deny knowledge of the amount or owing anything and force them to prove it. (also a hail mary).
  46. 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?
  47. 1 point
    I don't know why this attorney told you this, since the suggestions and plans here are to absolutely NOT litigate this case in court. Sure, if you did that, they will win on summary judgement. But that is why we use the arbitration method and force the case out of court. That is what we spend 2 pages in this thread explaining and going over. It's a proven strategy. Most attorneys just dont understand it for whatever reason*. (*the reason is because it doesn't make them money).
  48. 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.
  49. 1 point
    UPDATE: Just got back from my hearing on my Motion to Compel Arbitration and Plaintiff's Motion for Summary Judgement. Judge granted my MTC and gave me 60 days to pay the $200 filing fee. We have another hearing in April and as long as I have paid the $200 filing fee, the judge is closing the case. Judge said, "I am asking this as a compliment, are you an attorney by trade and if not what trade did you study?" Me: (laughed) and said no I am not. I have an Associates in Accounting but I stay home and raise my kids. @fisthardcheese @Harry Seaward and everyone else on this forum, I owe a big shout out to you for receiving this compliment! Definitely couldn't have done ANY of this without everyone's help on here! I will be forever thankful for all the help from everyone here!
  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.