Popular Content

Showing content with the highest reputation since 08/10/2019 in all areas

  1. 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!
  2. 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).
  3. 2 points
    Hi there all, Sorry in advance for the length of this saga, but I promise there is a good ending. I haven't been on the forum for a while and wish I'd seen the original posting. So, I was sued by Midland for an alleged 5k Care Credit (Synchrony) account about 2 years ago. There was a lovely arbitration clause (like yours) in the card agreement. Kohn Law Firm was doing the dirty work and brought the suit against me in my county's Small Claims Court. I was very grateful to receive significant information and strategic suggestions from members here (several who have been posting on this thread). I also did a boatload of research, including using PACER and almost memorizing WI's Consumer Act. I filed my Answer along with my MTC and appeared for the Hearing. The attorney representing Kohn had graduated from law school months prior to the Hearing (again, research). That very young man was representing Kohn on several matters before the Court that day and had rudely asked (demanded) each Defendant to confer with him prior to the proceeding. He'd been able to threaten and convince several parties to sign agreements admitting their debts because, "you'll get a better deal this way," and was, no doubt, expecting me to fall in line. He started by denying he'd received my Answer or MTC. This was either a blatant lie (my bet) or abject incompetence (possible) as I'd filed them electronically using WI's e-file system. I highly recommend filing everything this way as it is hassle-free and, I believe, shows the Plaintiff you are engaged in the process. When I slid a hard copy of the documents across the table to him, he shoved them back at me without looking at them. At that point, I told him we had nothing else to discuss and walked out. As I'd been astutely warned by forum members, the Small Claims Court Commissioner (who presides over the initial Hearing in consumer debt cases), barely glanced at my MTC. The Kohn attorney told the judge that he had no idea what I was proposing and had never seen the document. The Commissioner said that it didn't matter anyway because he was ruling in favor of Kohn/Midland and entering a judgement against me. I immediately (via e-file) requested a hearing before a Circuit Court judge. I received notice of an assigned judge and hearing date. Research (again) led me to understand that the judge was likely the most pro-business, anti-consumer on the bench in the Circuit and filed to request a new judge. I received a new judge, one who appeared, at least on paper, to view consumers in a more favorable light. Before the hearing date, I was notified (via e-file) of Kohn's Motion to Deny my MTC. I was actually surprised at the apparent lack of thought and legal reasoning contained in the document. It felt like they were not taking my Motion seriously. I responded to Kohn's Motion point by point and filed a copy of my application to JAMS. At the hearing, it was obvious that the Judge had actually read and thought about my MTC. He told the Kohn attorney that his Motion had not really addressed the issues I'd raised and asked him pointed questions as to why the case law I cited would not be relevant. If boy-lawyer had not been such a jerk, I would probably have felt sorry for him. He sputtered and turned red- especially when my MTC was granted. Then started what I call the JAMS dance. I was really trying to not pay the $250 filing fee. There were many emails back and forth with Kohn. My case was now being handled by boy lawyer's supervisor. In retrospect, I would likely have been okay not paying but admit I blinked when JAMS said they were closing the case because of not receiving filing fees from either party. I just did not want to be in defiance of the court's Order. So I paid my $250. Magically, Kohn filed for a Dismissal of the case, with prejudice. Again, none of this would have been possible without the wisdom of the forum members and the kindness they show by sharing that. PM me if you have any questions.
  4. 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.
  5. 1 point
    I deserved that! Yes I waited too long to file. Thank you for responding. I received an email today from JAMS forwarding an email from the lawyer. He said that his client is electing not to participate in the arbitration process and they have dismissed the lawsuit. I haven't received any notification that the lawsuit was dismissed. JAMS responded that they will proceed with arbitration unless it is withdrawn by the Claimant. I responded that I would like some time to confirm the dismissal of the lawsuit before considering dropping the arbitration. I then emailed the lawyer directly saying I would drop the arbitration in exchange for a dismissal with prejudice and payment for my JAMS filing fees. We will see what happens next. Have you ever seen a law firm refund the JAMS fee back to the claimant? Again, thanks for your time!
  6. 1 point
    The OP is in Cuyahoga County. Rivera v. RENT A CENTER, INC, Court of Appeals, 8th Distrct, Cuyahoga County, 2015 “Thus, if a dispute even arguably falls within the parties' arbitration provision, the trial court must stay the proceedings until arbitration has been completed.”
  7. 1 point
    Thank you so much. That is what I leaning towards too I sincerely appreciate your help!!!!
  8. 1 point
    Take this one step at a time. You are in Florida. That puts you in a very tricky situation. You need to do things the right way. If you formulate the correct strategy now, your chances of winning are much better than if you wait. This is from someone who waited until it was too late and got socked in some situations, and was very proactive and won in others. And I did beat Citi cards on two accounts First step - how long ago was the first contact? Was it within the past 30 days? If so, send a DV letter right away. Just say “I dispute this alleged debt and demand verification”. That’s all. Short and simple. And send it certified mail, return receipt requested. If it has been over 30 days, it is too late. Second step. Get copies of the Citi card agreements online from the CFPB web site. Download the agreements. Read the arbitration clause, if any. The questions you need to answer: a. Is there an arbitration clause? b. Is there a small claims exemption to the arbitration clause? The Citi arbitration clause has changed since I dealt with Citi Others may know the answer, but don’t count on everyone else. Third step. Find out how much you allegedly owe on the accounts. Find out if these would be small claims or not. This would be important for your strategy. Get back to us soon for your next steps.
  9. 1 point
    Who is the plaintiff? Citi or a buyer? What's the date of the agreement? Citi had delegation language from 2001 until late 2016 or early 2017 (depending on the style of account). The delegation language looks like this; Citi removed this language a couple of years ago. But if the agreement that governs the account in question does contain this language, then the court can't consider the small claims cut-out. The Supreme Court re-enforced this interpretation earlier this year in Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___, 139 S. Ct. 524. See also; U.S. Supreme Court Holds That Arbitrators, Not Courts, Decide Arbitrability Under Contractual Delegations—Even When the Answer Is Obviously “No” SCOTUS Rejects Exception to Compelling Arbitration—Delegation clause means arbitrator decides scope—no plausible argument required Supreme Court Gives Teeth to Delegation Clauses in Arbitration Provisions U.S. Supreme Court Rejects ‘Wholly Groundless’ Exception to Delegation Clauses in Arbitration Agreements — If the agreement that governs the account in question does not contain the delegation language, then you might not have this leverage unless delegation is somehow incorporated by reference to the rules of the arbitration forum — as was the case in Schein.
  10. 1 point
    You're most welcome. Listen, you're being tasked with learning a whole new skill set in a whole new language under duress with high stakes. If you don't ask, you might make a mistake and not even know it until it's too late. Your thread will contain a lot of information to help the next poor deer in the headlights soul who finds his/her way to this forum. Thank you. My participation on this forum began as way to "pay it forward," and I encourage everyone here who gets a helping hand during a difficult time to do the same in any way they choose. A little unexpected kindness can be a powerful thing.
  11. 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.
  12. 1 point
    Just wanted to make sure that you send Plaintiff and file a Notice of Hearing and Motion. Also, ask the clerk if your judge requires a separate "Judge's Copy" of all of the MTC motion papers that you file with the court.
  13. 1 point
    I understand your point, but an appeal on either side is de novo. If I would be denied arbitration, yet win the case on other points, an appeal by the plaintiff would still let me bring up arbitration at the higher court as if I filed the appeal myself.
  14. 1 point
    Agreed. IMO, this is a solid claim, in terms of getting over the already low frivolous bar.
  15. 1 point
    The Magistrate Judge would be ruling against several Supreme Court rulings regrading arbitration. As far as I know, your Magistrate Judge has not been appointed Super-Supreme Judge with the power to over-rule SCOTUS. Therefore, his error should easily be overturned. Although that isn't even what you would be doing. The de novo appeal means nothing from Magistrate court is brought to the higher court and it all starts over new. So you aren't even appealing the erroneous decision, you are just starting the case over because the rules allow for it and the reason is irrelevant. Find an agreement as close to your date of default as possible. That is the correct one. - Or ANY agreement that you swear to in an affidavit that the JDB can not counter-testify to is also the 'correct one', if you know what I'm saying. I don't even see it as moxy or a risk. You submit an MTC and the entire case shifts to whether or not there is a valid agreement to arbitrate. The debt and everything else becomes irrelevant in that moment. So I don't see a problem admitting to the portion that I am a party to the valid arbitration agreement.
  16. 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.
  17. 1 point
    If Magistrate Court is small claims, then you can file an appeal after the case has ended. The idea is that you can decide you want a more formal hearing of the case than what small claims provide.
  18. 1 point
    No template needed. If they have asked you for a mutual dismissal, just reply and state that you would be amenable to a mutual dismissal with prejudice.
  19. 1 point
    You mean like filing an affidavit testifying that to the best of your knowledge the card agreement you are filing is a true and correct copy of the original agreement which is the basis of the Plaintiff's alleged debt? Yeah, without that, a judge COULD deny it. Although that is also extremely ripe for appeal.
  20. 1 point
    File the MTC anyways and if the magistrate refuses to grant it, file an appeal to a higher court that is more likely to know the Federal Arbitration Act and would be more likely to grant it based on your arguments. Magistrate court is similar to small claims and quite a few times, the judges treat that as their own fiefdom. You need to either get the case out of that court OR have another judge tell the magistrate court judge that they are wrong.
  21. 1 point
    If the judge denies a MTC, you’d probably have the right to an interlocutory appeal. That would allow you to immediately appeal the judge’s denial to.a higher court.
  22. 1 point
    Hi Again, Case was dismissed without prejudice today 1 day prior to trial. Thank again for all your help. I hope they don't try this again as the last payment was May 2015 and now the SOL is over? The SOL clock does not stop when they filed their suit right? thankful and appreciative to all that helped.
  23. 1 point
    It is not an admission that you acknowledge the debt. A JDB claims to own the account and, therefore, is bound by the arbitration provision. How are they going to oppose it? The plaintiff can’t say it’s not a party to the contract because that would be admitting it does not own the account. It cannot say you are not a party to the contract because that would be admitting they sued the wrong person. The Consumer Financial Protection Bureau has copies of credit card agreements. By law, credit banks are required to provide their agreements to the Bureau. That’s where you would get the copy. 15 U.S.C. 1632(d) (d)Additional electronic disclosures (1)Posting agreements Each creditor shall establish and maintain an Internet site on which the creditor shall post the written agreement between the creditor and the consumer for each credit card account under an open-end consumer credit plan. (2)Creditor to provide contracts to the Bureau Each creditor shall provide to the Bureau, in electronic format, the consumer credit card agreements that it publishes on its Internet site. It would be difficult for the plaintiff or the judge to discredit a copy of an agreement that was required by law to be posted with the Bureau. “When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision. An agreement to arbitrate a dispute is an agreement to submit oneself as well as one's dispute to the arbitrators' jurisdiction.” Midomo Co., Inc. v. Presbyterian Hous. Dev. Co.,739 A.2d 180, 186 (Pa.Super.1999).
  24. 1 point
  25. 1 point
    Hat trick!!! Congrats, Mike!
  26. 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?
  27. 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.
  28. 1 point
    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.
  29. 1 point
    @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]"
  30. 1 point
    Just looking around on this thread...Great job OP! I too had PRA cases dismissed but none as exciting as this one! I just had to quote this from @fisthardcheese this was fantastic! you had me giddy with excitement at sticking it to them hahah!!! Great job team! I love to hear successes as well. I only wish everyone out there knew about this lovely forum!
  31. 1 point
    Exactly what I have been saying for years. They consider it a burden to merely have to get their feet down off of their desk (or miss a session of golf) to show up in court so when they can't accomplish anything when they get there it is like the end of the world to them. Said stack of papers includes the bogus affidavits, bill of sale and barely readable microfiche copies of old statements from the OC. Always go out of your way to be a thorn in their side making them work so they will go on tilt every time they come across your name on a paper.
  32. 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.
  33. 1 point
    Yes, the attorney was mad because you prevented her from getting the default or consent judgement with no work on her part, which is what she expects to happen. If those attorneys intend to put ANY work into a case, it is merely to intimidate a consumer with that stack of papers, at least half of which are not admissible in Magistrate court anyway if one knows the rules. But you did a great job by reading here and preparing yourself, having your MTC and not backing down when she lied about how "expensive" it is, implying you will be on the hook for even a single dollar of that (you're not). The Synchrony agreement states they will pay for all arb fees, so when I file my arbitration with JAMS I just send a cover letter stating that this is what the agreement says and that I am requesting that PRA forward my consumer portion of the filing fee directly to JAMS. Make sure you read the JAMS Demand form carefully for instructions on how to file. You need to send JAMS 2 copies of each , the Demand Form and Card Agreement. Send it CMRRR and keep a copy of what you send too in case you need to show up to court before you get a response from JAMS. It has become more common for the Magistrate judges to set a new hearing date rather than dismiss cases. Don't let that rattle you. Also, PRA is not going to participate too far into JAMS. They just don't do that. My guess is that once you file and JAMS sends the commencement letter, you will find a dismissal from PRA on the court case soon after. JAMS can move slow, so just prepare to show up at your next court date with the proof you filed and let the judge know you are still waiting on JAMS to set a hearing date, etc. Rinse and repeat until PRA quits. I like people who do their homework ahead of time and stick to their guns in the face of these professional bullies like the PRA attorney. You continue to do that and you won't have to worry about this issue for too much longer.