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  1. 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.
  2. 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.
  3. 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!!
  4. 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.
  5. 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).
  6. 2 points
    Did the Plaintiff file a written opposition to your MTC?
  7. 2 points
    Sounds like you have all the answers. Let us know in a couple months how that judgment tastes.
  8. 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.)
  9. 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.
  10. 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.
  11. 2 points
    Look into the arbitration strategy:
  12. 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.
  13. 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.
  14. 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.
  15. 2 points
    On an $1,100 debt. This is absolutely astonishing. I'm speechless. All hail @fisthardcheese.
  16. 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.
  17. 1 point
    What they paid is irrelevant. They are contractually allowed to sue for the balance on the account and any costs of collections. FL Law used to require that. No longer. I believe it was a a couple of years ago they got rid of that. @LawKittywas the one who pointed that out some time back. Also, they don't have to prove your received the letter only that they sent one. Producing a copy is sufficient for the court. You didn't have to. As others have explained under basic contract law they bought the rights to your account and that includes being able to sue you for the balance owed whether you agree or not. If you hope to get arbitration compelled the last thing you do is participate in the legal process because that is waiving your right to arbitrate. It is one or the other not both. Not anymore.
  18. 1 point
    @rhonda352 Along with what has been suggested by @Harry Seaward, you can eliminate most of your defenses because they do not apply to your case. Unless your state laws require the above, it is not applicable. Your cardmember agreement states that accounts can be sold or assigned. If Midland could prove it purchased the account, then that’s the same as having an account with Midland. This is not required unless your state laws require it. If they provide a bill of sale or affidavit from Synchrony, then Synchrony knows it sold the account. An agreement between Midland and Synchrony was strictly for the purchase of the debt so that Midland could collect. Midland did not make an agreement to pay for the account and not hold you liable. Accord and satisfaction only applies to the parties of an agreement. You were not a party to the sale between Synchrony and Midland. It would only apply if you had already settled and paid the account.
  19. 1 point
    If you want to use arbitration you'll have to file an amended answer to include arbitration as an affirmative defense. Check your court rules for how to go about doing that.
  20. 1 point
    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.
  21. 1 point
    @Neenur Good luck today!! Please come right back and let us know what happens. Here's some Michigan specific language from gg2008's successful motion: "NOW COMES Defendant Pro Per, gg2008, and hereby moves this Honorable Court to compel private contractual arbitration based on the GE Capital Ret ail Bank/WalMart.Cardmember Agreement, (the "Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681-1713, as grounds and authority. 10. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established. There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "Enforcement" section. (Pl.'s Ex. D, page 5)."
  22. 1 point
    They will say "You just got this card agreement off the internet". If you filed an affidavit with your MTC saying it is the correct agreement, that will help you. If not, you may want to bring one to the hearing. You should also tell the judge that "the internet" is actually a government data base where all banks are required to register and archive their card agreements for consumer use and that this is a true and correct copy of the agreement that governed the account you once had with the OC bank. If you have time, I would fill out the AAA Demand form and bring 3 copies to court with you. This will head off any argument about you "not being serious" about going to arbitration or using it as a stall or something of that nature. You can show the judge you have the paperwork filled out and ready to immediately file and you are only waiting for your motion to be granted so that it will be proper to file. When the attorney or judge tells you it will be very expensive for you or asks why you want to go to arbitration, a response that I like is "I am familiar with the AAA procedures and prefer the informal and private forum". Never try to argue the AAA rules in court, especially regarding costs. Don't say "actually, THEY will pay for it all" or something along those lines. I would just stick with "I am familiar with the requirements and procedures of AAA".
  23. 1 point
    I was just also reiterating for the sake of others who may read for answers to their similar cases.
  24. 1 point
    If it was absolutely a consumer credit card, then I would definitely file the MTC and go with JAMS arbitration.
  25. 1 point
    Nice, however the certificate of service doesn't have to have all the headings, it can just be page two under the answer as shown in my example, and it doesn't have to have under the penalty of perjury stuff. .
  26. 1 point
    @Theorist "The Structure and Practices of the Debt Buying Industry"  FTC (2013) "In addition to the FDCPA, debt buyers and other debt collectors are governed by Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.”18 An act or practice is “unfair” under Section 5 if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”19 A practice is considered “deceptive” if “there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.”20 Certain practices by debt buyers and other collectors that violate the FDCPA also violate Section 5 of the FTC Act.21 The Commission uses the FTC Act to stop unfair or deceptive debt collection practices by creditors22 and others that are not covered by the FDCPA.23" BV80 has asked you repeatedly if you've checked your credt agency reports to see if/how the debt's ownership is being reported : "Another federal statute governing debt buyers is the Fair Credit Reporting Act (“FCRA”),24 which imposes data privacy and accuracy standards on consumer reporting agencies (often referred to as “credit bureaus”) and entities, including debt buyers and other debt collectors, that use consumer reports or furnish information to them. Debt collectors and other entities that furnish information to consumer reporting agencies (often referred to as “furnishers”) violate the FCRA if they report information they know or have reasonable cause to believe is inaccurate.25 The FCRA also allows consumers to dispute the completeness or accuracy of information, including delinquent accounts, on their credit reports, and requires furnishers to conduct “reasonable investigations” of disputes submitted directly to them concerning the accuracy of information reported.26"
  27. 1 point
    Personally, if it were me, i, would ask the judge (since you speak first as the movant of the motion) if he has your motion before him and if he has read it entirely. If he says yes, then i would state that ''i will rely upon my written motion and have nothing further at this time'' and just wait to see what the OP says then start your objections and state arguments or etc..
  28. 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.
  29. 1 point
    Yes, if you are using it as an exhibit. But it may not be necessary to include it in your answer, as you will be including it in your Motion to Compel Arbitration. Be sure to complete the certificate of service part too.
  30. 1 point
    You did a great job, rob. And thanks to all those on this board who helped you. Superb advice from some very bright, very experienced "litigators."
  31. 1 point
    Agreed. There are attorneys who only defend consumers. Those attorneys are not in the business to lose. If those attorneys never raise certain claims as a defense or cause of action, chances are the claims are not valid.
  32. 1 point
    Another approach: since the OC is Comenity, there is probably an arbitration clause, so you can use the arbitration strategy:
  33. 1 point
    OK... I have a new direction for you here that's very important. I went through the Memorandum of Law in Support of MSJ Your strongest defense at the moment appears to be Lack of Standing. As I wrote earlier… 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. In the Plaintiff’s Memorandum of Law in Support of the MSJ, they’re claiming you didn’t plead to any special defenses. If this is true, you’ll have to amend your Answer to rectify this. Any special defenses, including Lack of Standing, should have been included in your answer. The legal cases cited in the Memorandum of Law pertain to the fact that you didn’t include any special defenses. There’s also some case law supporting the granting of summary judgements. It's your typical mumbo-jumbo. Instead of looking for case law to support your position, I would read the documents pertaining to your own case. Knowing and understanding these documents, as well as the JDB’s position, is what’s really going to help you here. In my opinion, you need to revise your Answer so you can enter your special defenses. These would include lack of standing. You could also try a Statute of Limitations defense, even though your state may not recognize the state law that governs the agreement. I found a website that should help you: https://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/Revise.pdf
  34. 1 point
    ALL of these should be answered: OBJECTION: this information is immaterial to the complaint as filed and not relevant to determining if the Defendant incurred a debt and is obligated to pay to the Defendant. OBJECTION: this information is immaterial to the complaint as filed and in no way establishes that the Defendant has any obligation to the Plaintiff in the matter before the court. You need to re-think this answer and any like it. Essentially you are admitting to having the Synchrony account and it would be a cake walk from there under the business records laws for PRA to prove you owe them. You need to make them prove you opened and used a Synchrony account AND that they now own the rights to it. This is your best option if VT law will still allow you to try it. Some states require you raise this as an affirmative defense when you answer the suit others require you not answer and file a MTC arbitration instead. You will need to find out what your courts require if you want to attempt this option.
  35. 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.
  36. 1 point
    They aren't going to mess with a $3,500 car. $3,500 private party is probably $2,000 wholesale, and that's for someone that deals in used cars. JDBs aren't in the car sales business so they might net $1,200 after fees and commissions, etc. It's not worth it to them. A $50,000 would be a different story. They might put lien on the title, but that's just so you can't sell it until they get paid. Plus, your state might have laws against them taking your sole means of transportation anyway.
  37. 1 point
    I'm not familiar with Alaska procedural rules, but it looks like you have to use these forms? You need in your answer an affirmative defense of lack of jurisdiction due to a binding arbitration clause in the contract. You can include in it "other." I would also check Defense No. 3, challenging the JDB's standing. Note the JAMS consumer rules: https://www.jamsadr.com/consumer-minimum-standards/ See No. 5: The consumer must have a right to an in-person hearing in his or her hometown area. Yes, that means the arbitrator is travelling to Alaska. Note this is the best info on arbitration: https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  38. 1 point
    You were a victim of ID theft, and courts view those instances differently than people that admit to having an account, but are disputing an individual charge or balance due. Part of the conundrum you are in by not 'flipping' on your wife is that the court may find you liable for the debt. Just FYI, i read between the lines on your original post and i get that you have your reasons for not wanting to report this as ID theft. While i totally respect that decision, we have a duty to let you know the potential consequences. Maybe things are different in CA, but here in AZ, a judgment creditor is essentially prohibited from collecting a debt from a married person unless both spouses were named in the lawsuit. The only exception is when the judgment creditor can show that one spouse's assets are not used to benefit the community. Like, your money is used to buy food, clothing, home furnishings, medical expenses, etc., etc., etc. ONLY for yourself. If your wife benefits at all from your wages (and vice versa) , it's considered community property. This amazes me every time it happens. It's such a layup for the plaintiff to name a Jane/John Doe in the complaint, it just seems to me it should be hardwired in to the template these guys use.
  39. 1 point
  40. 1 point
    @Harry Seaward @Norfolk&Wayman @fisthardcheese @Goody_Ouchless @BV80 @Brotherskeeper Just got off the phone with JAMS. I wanted to verify that they got the same email I did. And they did. Also found out that Midland did pay $1750. That's my portion which was $250 plus the $1500 they had to pay. I didn't ask to see if they would get a refund. I hope they don't and if they do it's not all of it. So my next step is to send Midland's attorney a settlement letter for $0 and that they dismiss with prejudice and to have it removed from my credit report. And once that is done I'll dismiss the arbitration case. I will keep everyone informed on what they say and do. I want to say THANK YOU to everyone that has helped me on this adventure. Couldn't of done it with out you.
  41. 1 point
    You are heading straight to summary judgment. The defenses for a JDB are very very different from an OC. The court will see right through it. Violation of what? I am 1000% certain your answer will do that and that is NOT a good thing. We know based on the number of threads that openly state the consumer is being sued by "creditor". The three top answers for OCs are Discover, AMEX and Capital One. You can theorize all you want but you are completely wrong and are going to find out the hard way. First any information you got from Ravindra in an overseas call center operation is irrelevant. He has no more knowledge of what is going on with that lawsuit than Fred the plumber is Missouri. The CSR is reading from a script and nothing more. Once that account was sent to the law firm ALL communication must go through them on any issue related to the account which would include settlement talks or who is suing. Next ANYTHING he said is hearsay and inadmissible in court. Your strategy was not oddball it was good fortune of consumer friendly state laws. You took advantage of them. This OP does not have that. MI is VERY creditor friendly and he is going to get hammered on this. The entire discussion is a waste of time. He isn't interested in true help. I can't even tell what the goal really is with the length and bizarre ranting of his posts. It is most likely why the 2-3 experts from MI have not jumped in on the thread. NO.
  42. 1 point
    Wow - I was wrong, Mr F. H. Cheese was right! Yes, interested to know what they paid, and if Midland was able to get a refund.
  43. 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.
  44. 1 point
    @robf270 I would send them over a offer settlement for $0, mutual dismissal with prejudice and a agreement that once the court case has been dropped you will then drop the JAMS case. @fisthardcheese @Harry Seaward what do you think? Sounds like he won this one!!!!
  45. 1 point
    If arbitration is available, I would go with that. Being in Alaska gives you some advantages, I think. If JAMS is in the contract, you are entitled to a hearing in your area. Imagine the travel expenses for an arbitrator based in the east coast to Alaska. Expenses which the JDB will have to pay.
  46. 1 point
    @Norfolk&Wayman @fisthardcheese @BV80 @Harry Seaward @Brotherskeeper @Pericles Well I just got a email from the attorney for Midland saying that they DON'T want to proceed with arbitration at this time. I hope this is a victory for me. I haven't received anything from JAMS yet on this. What should be my next move?? Should I wait for something from JAMS before I contact the attorney and tell them I want a dismissal with prejudice before I drop the arbitration case? Any help would be appreciated. Thanks for the help
  47. 1 point
    Once i filled my answer and MTC i got a letter in the mail saying they were going to file to dismiss the case at a certain date. The date came and the status of my case showed dismissed without prejudice. Just file your answer and MTC as soon as possible and you should be fine, they seem to only be interested in winning by default.
  48. 1 point
    Sometimes they don't respond to the motion. Is the plaintiff a JDB? Their attorneys usually aren't legal scholars. They are used to easy prey, the default judgments, and responding to a MTC Arb is above their pay grade and skill level. If they don't respond to your motion, then your motion should be granted by default. Be sure to stress this in court. The court wouldn't give you a break if you failed to respond to a motion filed by the plaintiff, right? So they shouldn't get a break either.
  49. 1 point
    I just got a letter in the mail from Midlands attorneys a notice of dismissal, supporting declaration, proposed dismissal and certificate of mailing. Im assuming they are offering a dismissal without prejudice. Whats exactly should i do next? This was after i filed my answer and MTC, i also sent them a copy of both.
  50. 1 point
    When a JDB attaches the bill of sale to the complaint, read the bill of sale. It will state that the accounts sold to the JDB are listed in exhibit 1, if it is not redacted. When they attach the redacted spreadsheet with just the account number on it and some basic information about the debtor, while redacting the file that it came from....that is not the same document the JDB would of received as part of the sale. It needs to be attacked as a document created for the sole purpose of litigation and it is hearsay.