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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
    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.
  4. 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).
  5. 2 points
    Did the Plaintiff file a written opposition to your MTC?
  6. 2 points
    Sounds like you have all the answers. Let us know in a couple months how that judgment tastes.
  7. 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.)
  8. 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.
  9. 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.
  10. 2 points
    Look into the arbitration strategy:
  11. 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.
  12. 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.
  13. 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.
  14. 2 points
    On an $1,100 debt. This is absolutely astonishing. I'm speechless. All hail @fisthardcheese.
  15. 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.
  16. 1 point
    I was just also reiterating for the sake of others who may read for answers to their similar cases.
  17. 1 point
    If it was absolutely a consumer credit card, then I would definitely file the MTC and go with JAMS arbitration.
  18. 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.
  19. 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. .
  20. 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"
  21. 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..
  22. 1 point
    Ok, let's think about this for a minute. You incurred a debt with Cap1 and never repaid it. As part of your contract with Cap1, you agreed that Cap1 may sue you in court to collect any debts you don't pay back. So say some random person goes to the courthouse and files a lawsuit against you in the name of Cap1 that just happens to be for the same amount and account that you had with Cap1. First, why would anyone not affiliated with Cap1 file a lawsuit in Cap1's name? Second, even if some rando did file a lawsuit in Cap1's name that happened to match the amount and account you had with Cap1, the rando isn't going to collect a dime on any resulting judgment - any judgment resulting from a lawsuit which names Cap1 as the plaintiff is going to be a judgment for Cap1 ONLY. (A lawyer representing Cap1 does not get their fees paid directly from the defendant. If a crooked lawyer was trying to cash in, they would have to ask Cap1 for fees. Do you think Cap1 would just stroke a check to any lawfirm that puts their hand out? If so, why bother with the lawsuit shtick? Just send an invoice and Cap1 will pay.) Ipso facto, it matters not the name of the person/entity that files the lawsuit paperwork. All that matters for the purposes of any judgment entered are the names of the plaintiff and defendant. Here's my final attempt at trying to get you to accept common sense. Whatever standard you believe Cap1 is obligated to adhere to, so are you obligated. If you were to hire a lawyer to represent you, and Cap1 claimed your signature was not sufficient evidence that your lawyer is authorized to represent you, you would have to accept a default judgment against you for failure to appear.
  23. 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.
  24. 1 point
    If you are in small claims, file a counter claim and try to settle for a mutual dismissal. Otherwise settle or use your own ideas to get a judgement. It's really that simple. We have been around this board a VERY long time helping people the best we can. If your idea was thought to have any way of working, trust me, we would absolutely have explored it long ago.
  25. 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.
  26. 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.
  27. 1 point
    True. Arbitration would be a great plan B if Midland won’t drop the case. The OP should prepare both strategies.
  28. 1 point
    If there was EVER one single valid case of the Plaintiff not being the actual original creditor as named in a suit the consumer lawyers would have been ALL OVER this a long time ago. I have never heard of anyone claiming this.
  29. 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
  30. 1 point
    Why would you pay 40% when you could pay 0%? Assuming there's an arb clause, use it. The only reason to EVER pay a JDB is if they're suing on an account without an arb clause. Sure if paying 40% allows you to sleep better at night, it may be worth it. I enjoy battles with collection attorneys and such; others may not.
  31. 1 point
    Another approach: since the OC is Comenity, there is probably an arbitration clause, so you can use the arbitration strategy:
  32. 1 point
    Yes, your draft answer is looking good. The only thing I would add is in Section E, Request for Relief, is to also check the first box that states: "Dismiss this case because of the defense(s) stated in Section B." And I would stress that you want private, contractual arbitration. There may be a court-sponsored arbitration available, which you don't want.
  33. 1 point
    While that may have been true in your own case, there are times when people will have to pay a debt collector to accomplish certain things. Like obtain a mortgage, for example.
  34. 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
  35. 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.
  36. 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/
  37. 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.
  38. 1 point
  39. 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.
  40. 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.
  41. 1 point
    You need a consult with a good Consumer Attorney ASAP. It is very possible that the small payment she made did NOT reset the SOL under CA law. If so, you have a gold plated defense that the SOL is expired to sue. Yes If she applied on line there won't be an application with a live signature but they should be able to get that application from CITI. They do not need every statement on the account. Under the law a consumer only has 6 months to show that a charge was fraudulent and dispute it. After that 6 months expires the charges are valid. The last few months of statements is sufficient to win a case in most courts. I would definitely be getting this information from them. Showing your wife alone made payments would help you personally. CITI should produce documents they have if requested. Unifund doesn't wan't to get them because it will be an expense to do so. Your wife can also get her bank records on her own directly from her bank. Yes You can file for BK at anytime. I would probably wait until the case is over because if you win then you don't have the credit issue of the BK. If you lose you can still file. If you file BK, win, or settle the debt: yes. This is potentially winnable for you BUT.....you are going to have to throw your wife under the legal bus. She will have to go to court and admit that SHE opened the account(s) in your name without your knowledge or consent and made herself the authorized user. Unfortunately the major problem is CA is a community property state and it may not make a difference. Is her name on the house? If not, then get it tossed they may not be able to lien it if they drop the case against you and sue only her. The problem is MOST spouses will not make their other half admit to what they did and take responsibility in court. The spouse counts on it. Consult a few consumer attorneys about that SOL and see if that is an option to send them packing first. If not, then consider BK if you are not going to hold your wife accountable.
  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
    @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!!!!
  44. 1 point
    I would say to file a response pointing out that Citi never defines "small claims" and hope the court agrees. That's about all that can be done.
  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
    The lawsuit could be filed in the county where the account was opened. If the account was not opened in the county where the lawsuit was filed, it’s an FDCPA violation. @BitsyM This is from the 35th district court website. The 35th District Court serves the five communities of Canton, Plymouth City, Plymouth Township, Northville City, and Northville Township. We currently have three judges serving. The court is located in Plymouth, Michigan, in Wayne County. Do you live in one of those communities? Did you open the account in one of those communities?
  47. 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
  48. 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.
  49. 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.
  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.