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  1. 5 points
    In case anyone is interested, I filed the MTC for arbitration. The law firm was reasonably quick to get back to me, though I wasn't quick to respond (life got in the way). Once I did communicate with them, I asked for mutual walkaway with prejudice and TL deletion. They took it back to their client who agreed. Paperwork has been signed and I got an email from the lawyer today with a copy of the paperwork they are filing with the court for dismissal.
  2. 5 points
    @fisthardcheese @Harry Seaward @BV80 @Brotherskeeper @Pericles @Norfolk&Wayman @Goody_Ouchless Just got a email from Midland's attorney agreeing to the settlement offer @fisthardcheese told me to use. DISMISSED WITH PREJUDICE!!!!! I will celebrate more when it's in writing and in my hands. I will post a picture of it when I get it. THANKS to everyone on this forum for the help. Couldn't of done this with out you.
  3. 4 points
    Great update! I lucked out. The attorney that showed up for Unifund was completely clueless. The judge forced us to mediate, so I told him I had a signed court order to arbitrate, and I also had a letter from AAA indicating that because I had a signed order, they could not pursue in small claims and it said that they had to pay $3250 immediately or the case would be closed. It specifically said that the claimant had fulfilled their obligations and was waiting on the respondent. The attorney looked it over for 10 minutes. He reviewed his paperwork, and then looked at his phone, then finally made a phone call, and then asked me that I could sign a consent agreement and go ahead and settle because he was planning on trying to get the court order vacated because of that one sentence in the citibank agreement about "small claims court". I told him that it was too late, that I had a signed court order and that we can go to trial. Well the judge then forced us to go through mediation with a mediator. I explained my situation, and the attorney said the same thing he said earlier. Then I was asked to leave so the mediator could talk to the attorney. When she called for me to come back and speak privately, she tried to tell me to settle!!! That they would be willing to settle for $700 and I could pay $50/month, and that it would clear my credit and that she was just giving her advice on what she would do. But I said that I had a court order!! And she told me she said the judge could decide to vacate because of that stupid citibank small claims section of the agreement. I told her I'd take my chances and wanted to go to trial. WELL I gave the judge my order and a copy of the letter from AAA, and she asked the plaintiff why they had not started arbitration! She said that if they didn't start it, then they would be held in contempt for violating a court order, and she said that she definitely would NOT vacate the order because the last time we were in court the Plaintiff agreed and signed off on it! We go back in 30 days, and if the plaintiff does not either 1) dismiss or 2) fulfill arbitration duties and begin proceedings, then they will be in contempt. She told me that if I had any motions to file, then I should do that prior to the next court date. But I'm not really sure what she meant by that for me? I don't have any motions to file, I think? So yes, finally I had a judge kind of see my side for once. THANKS for ALL THE HELP everyone! I hope to get a dismissal in the mail soon!!
  4. 3 points
    another update: "Plaintiff respectfully requests that this matter be dismissed with prejudice. Plaintiff no longer wishes to proceed." Does this really mean this is over????????
  5. 3 points
    I just want to say Thank you, to all of you who spend your time day after day assisting regular day to day people, with out asking for anything in return. My wife was served early 2014, just when we were starting to recover financially after the financial crisis. With the help of the wonderful people in this website, she fought all the way to trial. she settled at the end, and accepted an offer that she would not have received otherwise. I was then sued in 2015, however my case was dismissed a few months later. Five years later, we now have two kids, and looking at the possibility of purchasing a property in the near future. We would probably still be underwater without the help extended to us during those difficult times. The job i held the previous years game me the time to stick around and help those who are in the same position i once was; however, i am starting a new job and wont be able to sign in as often as i do now, but i just wanted to say one more thank you to all of you anonymous real life heroes. Thank you!
  6. 3 points
    Thank you to all that helped me along the way, case dismissed with prejudice!
  7. 3 points
    They went off the deep end - constantly begging for money, despite many users offering solutions - to the point it started looking like the site was being used as a source of passive income.At the end it was like Hitler in the Bunker, banning anyone who spoke up.
  8. 3 points
    Quit whining. Many of us are open to thinking outside the box. The arbitration strategy was considered lunacy when it was first proposed. There were some nasty battles fought here. Thing is, those of us advocating the arbitration strategy had numerous victories over our creditors. We didn’t whine about people not believing us. We beat the creditors and eventually others came around. One difference is the arbitration strategy was based on facts and laws and actual cases. Cases that could be verified online. Some of us tried aspects of the arbitration strategy that worked, and others that did not work That is how the strategy was refined If you want to win an argument, try it in court and either win and show us your victories or lose and take your lumps.
  9. 2 points
    No one is rolling over. “Scammers” do not register with a state. Note the word “scam”. Those businesses who register are not scammers. “Spoofed” phone numbers can belong to a party that has not called you. So, go ahead and waste your money filing lawsuits. You could be suing an innocent party or a party who cannot be located. Get your default judgments. It’s a bit difficult to collect from someone who can’t be located.
  10. 2 points
    In the past, I have suggested filling out the AAA or JAMS demand form and in addition to claims for usual violations and asking for statutory damages, also ask for an injunction order that the erroneous account (either due to not owing, or having other errors) be removed from credit reports and that the JDB stop reporting on it. Asking for an injunction as part of counter claims satisfies the "only remedy being sought is monetary damages" and eliminates the silly "ordinary claims" exception. I would use the filled out demand form asking for an injunction among my other claims as proof that my claims are not precluded by the "ordinary claims" exception, but I would not bring it up at all unless the other side does first and I need to present my evidence to refute their argument. Otherwise, I would file and go through the MTC hearing as usual.
  11. 2 points
    Yes, as evidenced by the fact it accomplished nothing. Your last letter told them what your next steps would be. Why did you make those threats if you didn't intend to follow through?
  12. 2 points
    I love hearing that my struggles have/still help people long after my fight is over. I've recovered from my poor credit decisions and you will too. The service of the subpoena has/will always be the biggest weakness of the junk debt buyers court case. That's why I stressed its importance so strongly. Its good to see that it's being backed now. Again, I'm truly blessed when I see how many people I've been able to help. I didn't get any return of my fees when I won so seeing others win makes up for that.
  13. 2 points
    The “arbitration procedure” link appears to be for wills, trusts, and probate. If your arbitration provision references the FAA, just include the case law in the post written by @fisthardcheese. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ It includes great case law from the U.S. Supreme Court. That case law is binding on the states. Here is some case law from the WA Supreme Court. “Further, both state and federal law strongly favor arbitration and require all presumptions to be made in favor of arbitration." Gandee v. LDL Freedom Enters., Inc., 176 Wash.2d 598, 603, 293 P.3d 1197 (2013) (citing Zuver v. Airtouch Commc'ns, Inc., 153 Wash.2d 293, 301, 103 P.3d 753 (2004)). "The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Zuver, 153 Wash.2d at 302, 103 P.3d 753.
  14. 2 points
    Filing in AAA is short and easy, but there are key things to include to make things better for you. 1. Find a claim against them to file with. Don't mention the alleged debt or their court case (other than include the signed order page by your judge and state that this is a court ordered consumer case). 2. Set an "amount in controversy" as the amount YOU are seeking from the JDB. 3. Type a cover letter that states this is for a new consumer case with a court order to arbitrate and that you request that AAA bill the company any required consumer portion of the filing fee per the enclosed contract. 4. Include the arb clause of the card agreement. 5. Send a copy of everything you submit to AAA, including your cover letter, to the opposing attorney. AND keep a copy of everything you send for yourself.
  15. 2 points
    You--a self-represented defendant driving a junker working for tips--had your motion granted today. The judge ruled against the Plaintiff's attorney's requests to stay the case pending the completion of arbitration or to even stay the case for 60 days. The judge dismissed the case without prejudice rather than stay it. I am not an attorney, but I think that any member of the bar besides Plaintiff's attorney would consider today in court to be a very good day.
  16. 2 points
    @Neenur From the 2018 Agreement: "30. Assignment. You may not sell, assign or transfer your Account or Card or any of your rights and obligations under this Agreement. We may, however, sell, assign or transfer your Account, or any balance due thereunder, and our rights and obligations under this Agreement to another bank or company without prior notice to, or consent by, you, which notice or consent is hereby waived. That bank or company will take our place in this Agreement." Good luck!!
  17. 2 points
    Dont even mess with AAA stuff until you go to court and your MTC is granted. You will just confuse yourself, add unnecessary work all at once and potentially create extra steps for no reason. Court stuff FIRST, then arbitrate only after the judge orders it.
  18. 2 points
    The ONLY affirmative defense I would use if it was me is "Lack of Subject Matter Jurisdiction: The underlying contract which is the basis of Plaintiff's allegations contains a private arbitration clause which the Defendant has chosen to exercise. Therefore, this Court is the improper venue and lacks subject matter jurisdiction over this dispute." When you file your answer, ask the clerk about a fee waiver, if in fact there are fees that high (or at all).
  19. 2 points
    Did the Plaintiff file a written opposition to your MTC?
  20. 2 points
    Sounds like you have all the answers. Let us know in a couple months how that judgment tastes.
  21. 2 points
    This feels fantastic, doesn't it? Congrats to you!! (I confess their payment of the fee scared me more than a little into thinking you might just be made an example of to discourage this strategy.)
  22. 2 points
    Great work!! Congrats on following through and not letting them paying the initial fee scare you into folding too early. Text book arbitration use.
  23. 2 points
    There is a huge difference between creative and asinine. Guess which yours is? If there was a "creative" option it would have already been suggested. You don't want help with this lawsuit you want to be told what you want to hear and as @BV80 stated you came to the wrong site for that.
  24. 2 points
    Look into the arbitration strategy:
  25. 2 points
    OK - that didn't make any sense. Can we refer to each case as something like AAA3K, COURT3K, AAA22K and COURT22K? My understanding is that AAA3K is currently open an active, COURT3K doesn't exist, COURT22K is open and active with an MTC for AAA22K that was never paid and was subsequently closed.
  26. 2 points
    I never bother. No one wants to accept defeat with a list of chores. IMO you are just making it more likely to prolong the settlement process or get a rejection right off the top. Aside from that, a dismissal with prejudice can be used to get it off credit reports later. That dismissal with prejudice is a strong paper to have that wipes out your liability of the debt completely.
  27. 2 points
    Great news! I thought I was doing well at 720 and getting a new Corvette at 3.7%. Good to see you're still alive and well.
  28. 2 points
    On an $1,100 debt. This is absolutely astonishing. I'm speechless. All hail @fisthardcheese.
  29. 2 points
    Courts accept that the listed plaintiff is indeed the correct party. A defendant who challenges it has to do more than offer observations. Have you checked your credit report as I previously suggested? We don’t know the formula (or whatever it would be called) that banks use for selling or retaining accounts. Perhaps it’s based upon percentages. They sell a certain percentage and keep the rest. It could also be based upon individual states such as those that allow wage garnishment. Judges don’t care about the opinions of defendants. They want proof in the form of law, court precedent, or physical evidence. It doesn’t matter to a judge if an affiant has been signing affidavits for 10 years. That’s not evidence of anything other than the fact that she’s been signing affidavits for 10 years. I’m not sure what you mean by “sloppy.” You may not believe that an employee of Cap1 created the affidavit, but you’re going to have to do more than suggest that sloppiness and 10 years of signing affidavits is evidence that Cap1 doesn’t own the account. In regard to shady law firms, I’m not claiming that what you’re suggesting has never or would not ever occur, but it would not be common. The reason is because attorneys really don’t need to lie about the identity of a plaintiff due to the fact that the vast majority of defendants do not defend and default judgments are awarded to plaintiffs. It doesn’t matter if the plaintiff is an original creditor or a debt buyer. Most defendants believe just don’t fight back. In addition, any attorney who cares about his license to practice law is not going to risk losing his license along with a hefty fine. Again, please check your credit report. All the being said, we understand that most posters who come to this site have never been sued before and don’t know where to start. I was certainly scared to death the first time I was sued. You’ve already taken a good first step by doing some research. However, be careful. You need to research the research. Some information you read may sound good, but it may not be supported by law or court rulings. A lot of people will simply offer their opinions, but fail to realize the importance of supporting those opinions with law or precedent. On this site, most of us research and offer case law, court rules, and/or statutes to support what we claim. Unlike some information you find on th3 Internet, we don’t expect readers to “take our word for it” because we understand that judges don’t care about our opinions and unsupported information.
  30. 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.
  31. 1 point
    Go to the courthouse and get a copy of what she filed.
  32. 1 point
    It is going to be best to start a new thread for your other cases as to not get things mixed up and confusing in this single thread with your MSJ case. According to the rule you posted, it appears you would need to file a Motion For Leave To Amend Defendant's Answer To The Complaint. In the motion, you ask the court for leave to file an amended answer due to new information. You then add your new answer with that motion and file them together. Also you would send copies of both items you file with the court to the attorney as well.
  33. 1 point
    You are fine following @fisthardcheese advice. You are going to court for COURT22K and can show that court ordered AAA22K was closed for non-payment. End of story. Any talk of AAA3K should be shut down hard for bringing up an unrelated and confidential matter that is of no concern to the court.
  34. 1 point
    I don't remember how the CMC was scheduled, it's been a few years now. If you have a thread started post in that and someone will answer it for you. Sounds like with the law being clarified now on the service of the subpoena they are basically hoping you mess up something they can capitalize on.
  35. 1 point
    There was probably a communication error between you and the clerk. The clerk probably thought you were taking about court sponsored arbitration, which few places have. According to the US Supreme Court, you are entitled to private contractual arbitration outside the court system. There have been others in Texas who have gone through arbitration. Look up how they did it.
  36. 1 point
    Here is the law to which I believe you are referring. 559.715 Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default. It says the “assignee” (not the OC) must provide notice at least 30 days before attempting to collect the debt. However, that’s a he said/she said situation. You can claim it was not sent while they can claim it was sent.
  37. 1 point
    Yeah, I would like to see how it came about that the Plaintiff was initiating the arbitration first. Also, if you start JAMS and the Plaintiff then sends the granted MTC to AAA and they re-open the case, you will have done the work (and potentially paid the $250) for nothing.
  38. 1 point
    So a few years ago I got into some financial trouble. I found this site, and it helped me immensely. I won 3 court cases, I sued Gold's Gym for collection violations, and I have been cleaning up my credit. I was at an all time low of 430. I protested every negative on all 3 credit reports. some things were removed, some were not. Some I had to wait until they dropped off after 7 years. But, last week I decided to refinance my house. I thought my score was pretty good now, so thought I'd get a decent % rate. eh, todays market, it was 4.2, but still better than the 5.6 I've been stuck with for 10 years. My credit score came back at 840! Pretty much cart blanch if your trying to get credit. I do have a couple of credit cards, with like 15k limits, but I won't go down that road again. If I have a major purchase I won't use it unless I have a plan to pay it off in a month or 2. I carry a low balance on my main card so it reflects well with payments, etc without getting socked for huge interest. Just wanted to revisit, and let others know this site is a wealth of info if your willing to invest the time. Thanks to all those that contribute! Oh my new house payment is 350.00 less per month, and will be paid off 2 years earlier. So even though I didn't get the low rates of a few years ago, it was still worth it.
  39. 1 point
    I emailed my former MI attorney and asked him. He stated the retainer agreement is a work product and protected by attorney client privilege. The only way the law firm representing Capital One could reveal its content would be with the express written consent of the client/Capital One. The court cannot compel them to disclose the information if they disagree and it is immaterial to the case as the complaint is filed. He also put the chances that a major bank waives that confidentiality privilege at ZERO. Especially considering they do not typically hire a law firm on a case by case basis but as part of a global retainer.
  40. 1 point
    The reason it is getting confusing for others is because OP keeps going back to issues already resolved and irrelevant to the current standing on the cases. At this point we are just rehashing the same 2 pages of this thread over and over. You are sending way too many emails and talking to the administrators too much. This letter has nothing to do with the AAA3K case. The only facts here that matter have not changed in weeks now. The AAA22K is closed and the court should be notified of such. My preference is by way of a sanctions motion. The AAA3K has a reply brief due. File it on time with objections and refutes to their assertions along with asking for the award to find that their claims are frivolous by dragging in a separate irrelevant case. And that's it. Still the same course of action I have suggested a comically number of times now.
  41. 1 point
    While OPs listed assets (the car) is fully exempt from being levied in IL, I am not sure how they view marital assets (i.e. a bank account that both parties access, etc). If OP has her name on the same accounts as her husband who is working full time, she may not qualify for the Midland hardship program (nor from exempt bank levy). Unless op can find the answers to these issues for sure, I think arbitration is probably the best way to dispose of this lawsuit. https://www.illinoislegalaid.org/legal-information/money-and-property-exempt-judgments
  42. 1 point
    Here's a few things I noted after looking through the Affidavit in Support of Motion for Summary Judgment. I don't have much experience writing legal statements. I'm just trying to help in the absence of input from others. B 3 – They’re claiming you erroneously indicated your name was XXX. I’m still not sure what your position is on the agreement. You say it’s questionable. Why? Did you sign it? Is their copy not true and correct? B 6 – There’s your default interest rate. B 9 – The Bill of Sale dated September 5, 2018, submitted by the Plaintiff as Exhibit B, is incomplete. It does not include the Asset Schedule that was attached and made part of the agreement. The Asset Schedule describes the loans, judgments, and evidence of debt that that were sold, assigned, and conveyed to the Buyer. In the absence of the Asset Schedule, Plaintiff lacks standing to bring suit against Defendant. C – Plaintiff cannot establish Exhibit D is a true and correct copy of the account history. The origin of this document is unknown. If the document was created by the OC, the Plaintiff requires an affidavit. Defendant contends this information is incomplete and inaccurate.
  43. 1 point
    Stop. Take a breath. Don’t panic. If you can show to Midland that your only source of income is exempt income, such as public assistance, their policy is to stop collection. Call Midland and ask them about their hardship program. At least one other person on this board got them to stop a lawsuit after showing Midland financial hardship. Call them. If you meet their criteria, they will drop the case.
  44. 1 point
    I have to ask this, when you get back from court today, please let us know where this strategy led you, even if it led to you getting your rear end handed back to you. It would be at least educational to us and would be helpful to others who might harbor the same thoughts. As for whether they sold the debt in your case or not, @BV80 has asked you multiple times to state what your credit report says regarding the status of the Capital One debt and you have not yet answered. That would be the quick and dirty way for you to tell how well your theory will fly. And yes, all banks can act differently since there are multiple paths they can follow. Capital One, American Express, and Discover all sue on their own debts for the most part. That is well known. Capital One has removed the arbitration clause whereas Synchrony Bank swears by such a clause regardless of what is going on. Each bank can and does make their own business decisions so it is not hard to imagine one bank doing debt collection in one manner while another bank does debt collection in another manner. As for suits on low balances, again that is a business decision and most do it anyways because 98% of the time, they get a judgement so it is worth the effort. In fact, most banks and JDBs keep attorneys on retainers for a set fee for a set number of cases. That is why some plaintiffs are willing to walk away when a defendant puts up a reasonable fight. So again, we have a reasonable belief on what will happen in court today BUT we could be wrong so we want you to report back. Realize that if you don't report back, the silence itself will be very telling.
  45. 1 point
    I had no response to my request for with prejudice. I signed the stipulation without prejudice, sent it in, the case is dismissed. Thank you all so much for your help. I appreciate it, there is no way I would have been able to do this without all of your help! Another win!
  46. 1 point
    Again, I would stop nitpicking over these lessor important details here. I explained how I would respond to the phone issue. The facts are unifund called you, they did not offer any evidence that you consented to calls to your cell phone, therefore, TCPA claims of $500 per call should be awarded in your favor. I would then move on to the far more important issues in this case. IMO you are getting close to coming off just as insane as their attorney by spending so much time arguing over side issues and losing the main point
  47. 1 point
    The "Restatement" analysis you posted earlier means the court should apply CT SOL over NC because CT has a much more significant relationship to this debt than NC. You could try to argue the OC was headquartered in NC, payments were received there and the breach of contract occurred there when your payments were not received there according to the terms of the agreement. Anecdotally, I tried this argument in AZ (we also use Restatement here) on a SOL defense and it didn't work. If this were me, I would contact AAA to find out if they would arbitrate this as a "consumer" debt since it was personally guaranteed. If so, that's the route I would go.
  48. 1 point
    The biggest rookie-mistake everyone makes is to think there is something inherently nefarious about what places like Midland do. The fact is that everyone in the court (including the judge and the cleaning lady) knows that you bought stuff, you didn't pay for it, Paypal sold debt to Midland and Midland has the legal right and evidence to sue you and, worst case, garnish your wages for the amount due. This is like being arrested for robbing a bank and forgetting your mask so you end up on security video. Arbitration gets you out of court. It doesn't change the morality of the situation, if those things bother you - it's just a loop hole that we use to get out of paying debts and it works virtually 100% of the time.
  49. 1 point
    sued by asset in early 2013, I BOP'd them, they dismissed, then they refiled the case in Dec of 13 general denial>BOP>do nothing until 45 days from trial>CCP 96 them>they dont respond> ready to hammer them but then trial date gets vacated due to court calendar, necessitating CMC to reschedule, and then: CMC today: myself and rent-a-lawyer appear judge apologizes for delay, and asks when we want to set date, suggests "i think it should be a few months out to make sure we have plenty of time for any subpoenas, motions, etc" Rent-a-lawyer (RAL) says, "I would like 90 days to see if this issue could be resolved" I say "I would like the trial as soon as possible your honor, I am ready for trial, discovery is complete, I dont see any reason why plaintiff would need 90 days" Judge: " OK lets cut it to 45 days" RAL: "May I have a moment outside to confer with defendant your honor?" Judge: "please do" ::we shuffle outside:: RAL:How can we settle this? me: well, I will only settle with full dismissal. Your client has missed every single deadline in this trial and has no admissible evidence. I recommend your client cut their losses and dismiss immediately to prevent incurring any more costs. RAL: Let me make a call and see if I can save us some time I go back into courtroom, he follows, we go before the judge and he requests dismissal without prejudice ::judge gives me the grinning "well how bout that?" look:: I say " Your honor, I would prefer dismissal with prejudice, as this case is well past the SOL anyway" RAL: "we will stick with dismissal without prejudice and let the plaintiff sort out the SOL issues" me: "I accept that dismissal without prejudice" (not sure why i said that, as if i have the power to stop the plaintiff from dismissing, but it seemed like closure)
  50. 1 point
    Need advice on best way to beat or discredit an Affidavit or Declaration from a creditor in an unlimited jurisdiction case. I am currently in the discovery phase of California unlimited jurisdiction case (over $25,000) against an original creditor. I have beat lawsuits by original creditors and junk debt buyers in limited jurisdiction cases before, but this is my first unlimited case. After doing quite a bit of research on this website and others across the internet, I have found it very difficult to get information on which California codes (CCP) apply to limited vs unlimited jurisdiction cases. Specifically as it relates to Affidavits or Declarations made by the creditor. Typically, in a California limited jurisdiction case I follow this general process used by many CIC members on this site. They include: 1)Answer Complaint 2)Send Bill of Particulars 3)Various types of Discovery- 35 max CCP §§94-95 4)Motions if required 5)Request Witness List, CCP §96(a) 6)Subpoena Witness after receiving Affidavit in Lieu of Testimony, CCP §98 7)Motion in Limine 8)Trial, maybe or maybe not witness shows up. Its a simple process and it works very well but you need but you need limited jurisdiction codes to do it. Common California Codes used only in Limited Jurisdiction Cases: CCP §§94-95 , limits on Discovery allowed only to the extent permitted which max out Discovery requests at 35 interrogatories, production of documents and admissions CCP §96(a), Either party may serve a request for disclosure of witnesses who will be called, and documents, photographs, and other evidence that will be offered at trial. . Make the request on the mandatory Judicial Council form, Request for Statement of Witnesses and Evidence—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-015). CCP §98, A party may, in lieu of presenting direct testimony, offer the prepared testimony of witnesses in the form of affidavits or declarations under penalty of perjury. Since the process mentioned above really can't be done in an unlimited jurisdiction case because the codes are not available, I am not sure the best way to fight the case through normal discovery. Especially as it relates to affidavits or declarations. Since I cannot get the witness list through CCP 96, could I possibly get it through discovery using CODE OF CIVIL PROCEDURE SECTION 2034.210-2034.310. Requires a witness list during discovery 70 days before trial. Anyone know of any other way to get a witness let using another code or strategy? Under CCP 98 my understanding is that a Affidavit in Lieu of Testimony is not admissible in unlimited jurisdiction and is therefore considered hearsay. Because of this it seems there is no need to Subpoena the declarant to come to court because really I don't want them to show up anyway. It would be better just to see if they have a witness stated on a witness list, and this witness works for the original creditor. Especially since there are costs associated with getting a subpoena witness to Trial. Plus I am not even sure how to subpoena someone in another state. It seems it would be better to just prepare for cross examination of this witness at trial. If for some reason I still wanted a person to show for trial (likely located in another state) would subpoena SUBP-001 and SUBP-002 still apply per CCP 1985 & 1987 in an unlimited jurisdiction case? Also, I have also noticed that some courts like Orange County and Santa Clara (maybe others) require other rules in unlimited jurisdiction cases. Things such as joints statements between plaintiff and defendant lawyer for Case Management Conference instead of just filing out CM-110. Joint production is also required for the Pre-Trial Statement and a Joint Witness List. Has anyone actually had to do these in a unlimited case or know the process for working these documents out with the Plaintiff's lawyer? Any help would be appreciated.