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  1. 15 points
    Arbitration Overview Arbitration is a clause that is found in most Credit Card Agreements. Your Card Agreement will state that you may use either AAA or JAMS as the arbitration firm. The Card Agreement may also state something about who pays for arbitration. It may say that "they" (the OC or JDB) will pay all of your filing fees. This means arbitration will cost you a grand total of $0, while the creditor will be billed a minimum of $5,000 to complete an arbitration (and many times that price can climb much higher). However, even if your arbitration clause is silent on costs, the rules of the arbitration firm cap all consumer fees at $200 for AAA and $250 for JAMS. This means you would never pay more than $250 max, while the company will still be paying many thousands to arbitrate. Just due to this cost structure alone, almost all JDBs will refuse to arbitrate. This is why getting your case out of court and into arbitration - especially when facing a JDB - is almost like having a golden ticket to a win. Of course, like everything there is no guarantee. However, the odds are strongly in your favor with arbitration against a JDB. (If you are dealing with an OC - especially a big bank like Discover or AmEx - then your arbitration experience and strategy will be much different than with a debt collector JDB like Midland or Cavalry. More details on differences in taking an OC bank to arbitration are below). Strategies of arbitration: 1. It's not a Bluff, it's arbitration - You are going to ask the court to move your case to arbitration because that is the proper forum per the card agreement. This is not a "bluff" to scare off the JDB. This is a strategy that must be followed through with. It is ok if the JDB does not magically drop the case just at the mention of arbitration. The JDB will continue to work the case as if arbitration was never said, even after you file a Motion to Compel Arbitration in court. The JDB may even pay the initial filing fee of $900 to follow you into arbitration once you start the case. However, soon after that $900 filing fee, the JDB will be sent a first arbitrator retainer bill of about $5,000. This is why you continue arbitration. You are not bluffing, because your case is the same in arbitration as it was in court. You will be making the same arguments and have about the same chance of winning on those arguments (slim, in all honesty). The big difference here is that the JDB must now pay large sums along the way to allow this to happen. So you are not bluffing, you are just moving your case into a forum that they do not like and which forces them to make a cost/reward analysis on whether to continue the case or not. 2. Settlement Opportunities - The goal of arbitration is to create a situation that gives you the best settlement advantage (i.e. settling for $0 with a mutual dismissal with prejudice). There are 3 key points where this comes into play. #1 - After the court grants your MTC and before the JDB pays the $900 filing fee to the arbitration firm. #2 - after the JDB pays the filing fee but before their $5,000 retainer is due (after the arbitrator is chosen). #3 - After the first conference call and before the discovery deadline, just before the hearing where another large retainer bill is due. If the JDB does not reach out first to talk settlement, these are the points I would send an email letting them know I am willing to offer a mutual dismissal with prejudice (minimum). Do not forget to always include an expiration date for your settlement offer. I like to make my offers expire on the same day the next event is due (i.e. a payment deadline for them to pay the arbitration fees, or the discovery deadline date, etc). If they do not agree to your offer, or counter for a higher amount you can not or are not willing to pay, then I just decline the offer and allow arbitration to proceed to the next step until you get to the next key settlement point where I make my same offer again with a new expiration date. 3. Object. Object. Object. - In arbitration, if you do not object to something in writing you lose your right to it. Therefore, anything that happens that falls outside the arbitration rules and especially the supplemental consumer rules, you must object in an email to the arbitrator and CC'd the JDB attorney. Objections not only preserve your rights under the consumer rules, but they also can create side issues that must be dealt with by the arbitrator. The arbitrator's hourly rate to respond to these side issues can really eat up the JDB's $5k retainer before you even get to discovery. Especially if you have phone hearings on these side issues (HINT: always ask for a phone hearing as part of an objection). This causes arbitration to be slow and expensive, which can position you into a better settlement opportunity. 4. Initial Conference Call - This first call once the arbitrator is appointed is where you can set the tone to let the other side know that you are not bluffing and you mean business. They should come away from the call knowing very well that you intend to see this case all the way through to the final hearing (even if you really don't want to). This call is usually fairly quick and informal. It is designed to set the scheduling of discovery and a hearing date. However, you should assert some things during the call that tips the other side into knowing it will not be an easy push over win like they would have in court. I would ask the arbitrator for the other side to submit the name of their witness they will bring to the hearing with personal knowledge of the alleged account. If not already covered by the arbitrator, I would ask for an in person hearing. I would be prepared to give a time-frame when the arbitrator asks how long you will need to present your case at the hearing (I would say at least half a day - aprox 3 - 4 hours). 5. What About an OC? - If you are dealing with an Original Creditor (not a JDB) they may take the arbitration all the way through to the final hearing. Money is far less of an issue with the big banks, and unlike a JDB, these banks are not counting on collections as their sole source of income. Therefore, the OC banks will proceed with arbitration with much less trepidation than a JDB, so you must modify your strategy and expectations. With some OC's, they will never agree to a mutual walk away, however, using arbitration may help you get a much cheaper settlement offer than you would by staying in court. My goal with an OC would be to use the long, slow arbitration process to buy some time to save up a lump sum to offer them for settlement. You can use the same settlment opportunity points as yo would with a JDB, but instead of "mutual dismissal", your offer may be to pay 50% of the debt, for instance (or what you can realistically offer as a lump sum payment) in exchange for a dismissal of their court case against you. If you can't come to an agreement and go to the hearing and "lose" the final hearing with an OC, check your card agreement for any arbitration appeal language. Some OCs like Discover and AmEx have an appeal option written into the contract. The appeal is before a 3-arbiter panel. This means the arbitration process starts all over again, only this time you have 3-arbitrators which triples the bank's costs. This is where arbitration costs can skyrocket well over $100,000. After you file an appeal and get 3 arbitrators appointed, this is likely the best settlement opportunity with an OC. (when they are staring at a new $20k initial arbitrator retainer bill after just paying around $10k - 20k for the first arbitration in total). Starting Arbitration First thing is first - Your court case. If you have been sued, you must answer by the court's deadline. Don't worry about the actual arbitration case for now. You must file your answer and/or Motion to Compel Arbitration with the court before your deadline. (A sample Motion To Compel Arbitration is at the bottom of this post) In court, the important thing to remember is when you are asking for arbitration, you effectively put everything about the alleged debt and account in the back seat. You are saying that the court has no jurisdiction to hear this subject and that it is for arbitration only. Therefore, do not fall into the creditor attorney's trap of trying to continually bring back up the debt and anything related to it. Do not answer their questions prior to going in front of the judge about the debt. Instead you just assert that it is a matter for arbitration and you will be asking the court to grant your MTC. When facing the judge, they may talk to the attorney first who will go into the information about the debt. Just wait for your turn to speak and state that you have a pending MTC that speaks to jurisdiction and that you would like to have that heard first before getting into the merits of the case. Getting a granted MTC is like a golden ticket against a JDB. This should be ALL that you focus on in court. When you file the MTC you essentially put a wrench into the JDB's auto-pilot lawsuit mill. The ONLY question now before the court is whether there is a valid arbitration agreement between the parties (you will show that there is with your card agreement and affidavit). And if there is found to be a valid arbitration clause, then according to case law (from state and SCOTUS), then the court MUST order arbitration. This is the one and only issue that should be covered in court. AFTER the court grants your MTC and orders the parties to arbitrate, then you should move on to actually filing the case in arbitration. Filing your Answer and MTC in Court VERY IMPORTANT NOTE: Before doing anything in court, you should look up (or get a copy from the court) your local court rules! All courts have their own set of rules and it is impossible for anyone on this board to know for certain your specific court's rules. You especially want to read the rules on filing an answer and filing a motion and be sure you are complying with those rules (and time-frames) when you are taking these actions in court. When you are sued, you are required to answer the lawsuit within a certain time-frame. That time-frame is different for each court, according to the rules of that court, but a general time is between 20-30 days. In some courts, you are allowed to file a Motion in place of an answer. However, in this thread, I suggest filing an answer WITH your Motion to Compel Arbitration (MTC). This is not a requirement, but it may change this one element in your case: Filing a MTC only (in place of an answer) allows the Plaintiff to dismiss the case without prejudice on their own before the MTC is ruled on by the judge. However, if you have filed an Answer AND the MTC, most courts do not allow the Plaintiff to dismiss the case on their own and they would need to get your cooperation to file a joint stipulated dismissal. When that happens, you have the right to tell the attorney that you will only agree to a dismissal WITH prejudice (and this permanently puts an end to your case and the alleged debt too). Very Important Note: It is imperative that when you file an answer, you mention arbitration as a defense. In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration. In your answer, after you deny all allegations in the complaint, you should create a new section with the following title: “Affirmative Defense”. Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. Along with your MTC it is generally a good idea to include an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise". A quick google search will show you how an affidavit should be formatted and worded. It does not have to be complicated or special, it just has to be your own words stating you have the correct card agreement. The Affidavit should be notarized before filing with the court. This is the only document that is necessary to notarize, as it is a sworn statement. Having the affidavit is also a good way to counter the most common argument a creditor will make against your MTC, by saying you have the wrong card agreement. Your affidavit is your sworn testimony and the only way to counter this is for the Plaintiff to present a witness with knowledge of the bank's card agreements during the time your account was active. (In other words, it would have to be sworn testimony from the Bank itself, and not the JDB or the attorney's word). Because of this, your affidavit usually eliminates any doubt that the Card Agreement is accurate and valid. This answer and your MTC can be filed at the same time. However, if you are up against the deadline to file an answer, the answer is the most important element to avoid a default judgement. The answer should be a short and easy document to file, so get that done first if pressed for time. You may then file the MTC a week or two later (as soon as you can, but no later than allowed by the court rules). Some courts require that you set a hearing date for your MTC. If your court requires this, make sure you do this at the time you file. In some instances, you may be required to contact the other side's attorney to work out a date for a hearing after you file the MTC. Make sure you know your court's rule on setting up a hearing. Some courts automatically schedule a hearing for you, and in some cases the judge will rule on your motion without a hearing at all. This is a matter of a court by court basis as they all operate in their own way with their own rules. Checking court rules on filing motions is essential. Filing The Arbitration Case Go to the website of either AAA or JAMS, depending on which one your card agreement mentions. Find the document titled "Demand for Arbitration". The instructions for filing are at the top of this Demand form. Remember that you are filing for CONSUMER arbitration, so follow the instructions for CONSUMER cases. When filing arbitration, I very strongly recommend filing some claim against the JDB. Remember that when you ask for arbitration and file it, you have now flipped the roles. YOU are the "Claimant" and THEY are the "respondent". This is essentially like you are now "suing" the JDB, only in arbitration instead of court. Think of it just like that. You would not file a lawsuit against yourself, so do not do it in arbitration. I would never mention THEIR claims against me, nor the debt in any way. Instead, I only file MY claims against the JDB. Do not worry at this stage about the details of your claims because this initial claim is allowed to be changed, added to or dropped at any time before an arbitrator is assigned to the case (and even after, you can still make changes with the arbitrator's permission). If you have nothing very strong with proof against the JDB, I would file with something such as "violations of state and federal consumer debt collection laws" or perhaps, "Violation of the Fair Debt Collection Practices Act", etc. Or even a simple "Billing dispute" will do if you have no violations of law against them. Again, it doesn't need to be more detailed then that at this stage and if your claims never pan out, you have the ability to drop them later (or you may find NEW claims to add if the JDB violates the laws during the ongoing case). When sending in the Demand for Arbitration, I never send money initially. If you are required to pay the $200/$250 consumer filing fee (or any portion of it), then the arbitration firm will tell you to submit that in order to continue. They will never reject your filing, but will send you a case number and request for payment to move forward. Having the case number is key evidence that you filed the case (which may be needed for Court later). If the Card Agreement states that "they" will pay for your filing fee, I will include a cover letter with my Demand form stating that per the Agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS. Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time. I send both CMRRR and retain the green cards. Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail. If there is ever a question about service after I file, I will have the green card to submit as proof if needed. Remember, that this is now YOUR case against the JDB. It will be up to the JDB to file a COUNTER CLAIM in arbitration for the alleged debt. They have a set amount of time per the rules to file a counter claim. Make sure you know the rules. It will not be uncommon for the JDB to not file their counter claim in the allowed time frame. If they file after the allowed time, you must file a written objection noting this and ask for their claims to be stricken as untimely. Always file written objections to EVERYTHING that falls outside the rules in arbitration. When you object, also ask for a hearing on the matter (see arbitration strategies section above). NOTE: It is likey that in such situations, the arbitrator will rule in favor of the creditor almost every time and allow things like untimely filings anyway. Do not let this discourage you. The point is that you filed the objection, forced at least a response from the other side and for the arbitrator to make a ruling. All of this cost them time and money. Even if nothing goes your way on objections, you should continue to make them for every problem you encounter. They add up and they increase the pressure on a JDB (or an OC) to settle. The fact that using this Arbitration method has now reversed the roles (you are the claimant who has brought claims AGAINST the JDB) AND combined with the fact that the Court has granted your MTC, means that the JDB is now stuck between a rock and hard place. They can't just dismiss the court case on their own (they need your agreement for a stipulated dismissal because of the granted MTC) and they also can't drop the arbitration case without your agreement (not only is it not their arbitration case, but yours, but they would also be violating the court order to arbitrate). Because of this, you are now firmly in the driver's seat. The JDB does not want to spend a ton of money and time to arbitrate, but also does not want to violate the court order. This means YOU are in control of the settlement agreement. You can tell the JDB that you will stipulate to a mutual dismissal with prejudice (meaning you will dismiss your arbitration case against them with prejudice and they will dismiss the court case against you with prejudice). You win. Filling Out The JAMS Demand Form The Jams Demand Form is located on the JAMS Website at https://www.jamsadr.com/rules-download/ Tips on filling out the JAMS "Demand for Arbitration Form" are as follows: Instructions: Be sure to read and follow the instructions for filing a case on this first page of the form. Respondent: The respondent is the JDB/OC/Creditor who sued you. They would be listed as the "Plaintiff" in the lawsuit, but are the "Respondent" in arbitration because you are the party filing the case here. Fill out the JDB/OC/Creditor's name and contact information here with the law firm or attorney's information below them in the "representative" section. If you know or can find the attorney or law firms email address to add here, it will be helpful as most of JAMS' communications after the initial filing will be by email. This can also expedite the confirmation of your case being filed in JAMS. Claimant: You are the claimant. Fill out your information in this section and leave the "representative" blank. Mediation in Advance of Arbitration: Do NOT check this box. Nature of Dispute & Claims Sought: This is the section where you can briefly list what claims you have against the creditor. Again, this can be as simple as "Federal and state consumer debt collection law violations", or listing the actual law or statute that was violated, or listing "Consumer debt dispute". Following that with something such as "Seeking Actual, Statutory and Punitive Damages". Again, I would suggest to NOT mention the lawsuit filed against you on this form. Amount in Controversy: Use your best judgement. If you have no violations to claim against them, this could be the alleged debt amount, or it could be the alleged debt amount plus $1,000 for an FDCPA violation, or the debt amount plus $2000 for an FDCPA and FCRA violation. Or perhaps you don't want to list the debt amount at all and just have 10 TCPA call violations and want to claim $5,000 (10 TCPA x $500). Again, use your best judgement. Arbitration Agreement: In this section, I simply spell out where the Arbitration Clause is located. It usually looks something like this; "Section 7 on page 15 of the attached Cardholder Terms of Use Agreement". Request for Hearing: YOUR city, State. This is the location that JAMS will select should an in-person hearing take place. Election For Expedited Procedures: Do NOT check this box. Again, the entire point of this strategy is to make the process slower and more expensive for the other side. Checking this box will defeat that entire purpose. Signature: Sign and Date this section (should go without saying) Consumer and Employment Arbitration: Check the box that says "YES. This is a consumer arbitration." Respondent #2: If you have claims against a second entity, such as the law firm representing the JDB, then you would add them as a second respondent in this section. That is all. You may leave the remaining sections blank and you are ready to file. Again, be sure to double check the requirements to file back on page 1 and follow the instructions carefully. Filling Out The AAA Demand For Consumer Arbitration Form The AAA Demand For Arbitration Form is located at https://www.adr.org/ConsumerForms This form is a little more straight forward and shorter to fill out than JAMS. The instructions for filing are located at the bottom of this single page form. I always use the email address at the bottom of the instructions to send in my AAA case filings. I print off the filled out form and my Arbitration Clause (AAA does not require the entire card agreement, only the arbitration section) and any other item you are subitting with your case. I then scan the documents to a single PDF file and attach it to my email. In the body of my email, I explain that I am submitting a new consumer arbitration case and (if stated in the card agreement) that the contract states that the business is to pay all filing fees, so I request that the business forward all filing fees directly to AAA. If you need help filling in the sections of this form, see the answers to the JAMS form above, as they are essentially very similar. Sample MTC (Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea) MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION. (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY. (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT (d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US. (e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT. 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”. 6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 7. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration. Respectfully submitted this day ________________, 2014 (Your name), Defendant, pro se Sample Proposed Order Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order. Making the Judge's job easier to grant your MTC can't be a bad thing, IMO. Here is a sample Proposed Order you can include in a seperate page with your MTC: ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION Case No. xxxxxxx : COURT OF XXXXXXX COUNTY _____________ (name of plaintiff) VS. Case No. XXXXXXX _____________(your name) The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED: _______ GRANTED / _______ DENIED Further, this case shall be stayed pending the outcome of private arbitration. This _____ day of _________________, 2018 By: ________________________ Judge of the ____________ Court
  2. 10 points
    Victory!! CASE DISMISSED! Thank you, Thank you, Thank you to everyone who replied to my request for help and offered information. UNIFUND did not pay their portion of the JAMS fees by the deadline set by the Court. I updated the Court as requested and they dismissed the case with prejudice! To anyone who is new to this forum and needs help, pay attention to the great advice that is being offered here and follow it. Once again, THANK YOU!
  3. 9 points
    Hi guys, Just wanted to give an update. I GOT ACCEPTED INTO LAW SCHOOL! Two years ago I created a thread here stating I was studying for the LSAT and was going to apply for the fall of 2014. My first "cold" run at a practice LSAT was not so hot, so I decided to take a full year to study for it. I took the June 2015 LSAT, improved my LSAT score by 16 points and applied to six different in law schools in September. Today I heard back from the first school and the feeling is euphoric. I don't start school until September of next year, so I will still be around for a while but I will not forget the people here. My goal is to practice in the area of consumer civil litigation, among other areas. There is a dire need in the State of New York for affordable legal civil services to the poor or near poor. A lot of times people go unrepresented in areas such as divorce, custody matters, civil disputes etc and it can have just as a severe impact on a persons life as a criminal matter Much of what I learned from these boards will no doubt help me be a better advocate in the future. Thank you all
  4. 9 points
    My short story: I was sued by a creditor last year. I was lucky enough to find this site online. The people on this site were amazing in helping me figure out what to do and understand all the legal stuff. I want to thank you all for everything. There is NO way I would have been able to understand what was going on and how to fight the lawsuit on my own. My credit score is now 711! It was in the low 600's last year. Anyway, just wanted to say I am grateful to all of you who give so much of your time and information to help people on this site.
  5. 9 points
    I originally posted on this site for help in responding to a summons from PRA (regarding a 6k Citibank debt), however living in FL and not knowing the law i was excited to retain @LawKitty . She has been so thorough in explaining everything and being realistic about the possible outcomes of the suit. She allowed me to set up a payment plan!! I made my first payment on saturday, and she got to work on tuesday (monday being a holiday)! Tuesday afternoon she sent me an email with all the info she had submitted to the court electronically. Within HOURS, pra emailed her with a mutual decision. PRA dismissed with prejudice, agreed i would not receive a 1099, the tradeline would be removed from the cra's, and they would not sell the debt or ever attempt to collect on it again!!!!! @LawKitty got me the best possible outcome in less than one day!!! I strongly recommend anyone in FL being sued by the junk debt buyers reach out to her. I honestly thought this process would take months, and that absolutely was not the case. Thank you guys so much for all the help and directing me to @LawKitty.
  6. 9 points
    Let me start by thanking ASTMedic for laying out the guidelines in "How I beat Midland in California" that I basically copied and then updated with the Target v. Rocha info that Calawyer and several others pointed out. Because of what I learned here I was able to get Absolute Resolutions to dismiss their case the morning of the trial. If it had not been for this forum and the many helpful contributors I don't know what I would have done. Now it is my time to give back, so I am attaching redacted copies of the documents that I spent so much time researching and typing up. I hope this will help someone else as much I was helped by the other contributors to this forum.
  7. 9 points
  8. 9 points
    A quick recap: I was sued by Midland Funding over an old credit card debt for about $7,500. I answered the suit, we did discovery and they promptly filed for Summary Judgement. The first SJ was continued so Midland could get the proper document from CHASE spelling out my account. The second Hearing for SJ, I won by pointing out they did not have that. You can read about it here: http://www.creditinfocenter.com/community/topic/325986-a-victory-in-motion-for-summary-judgement-of-sorts/ So it's been six weeks or so since their motion for Summary judgement was dismissed and the case set for trial. And I really have done nothing to prepare. I was at a loss for exactly how to prepare for trial and really my hope was they would offer me a settlement in the $2,000 range. Their attorney had left me with a "we will send you our best offer right away" after the hearing but I had heard nothing until today. Today I get a letter in the mail from the attorneys (Love, Beal and Nixon) I figure it's a settlement offer of $5,000 or so and I think "let the negotiating begin". But no, it's a voluntary DISMISSAL from Midland. WOOHOOO... so frickin happy! And so glad all my hard work, late nights, effort and even representing myself pro-se in court paid off! Obviously they decided that fighting me to get a judgement they had little chance to collect much on just wasn't worth the time, energy and expense. I've already filed a complaint with AG of Oklahoma about their practices. I got kind of a cryptic response "we are aware of the activities of Midland Funding, LLC but we do not disclose investigation details" so maybe they are already being looked into. I have seen so many Summary Judgements due to a lack of activity on those being sued, I hope something happens to limit them. For those of you in a similar situation my advice is FIGHT! Fight hard! Do your research, file your papers, and just fight them tooth and nail at every turn. Don't let them scare you or intimidate you, when push comes to shove they usually don't have the necessary papers to win. Also just the act of fighting may cause them to give up and look for much easier targets. Forgive my back patting, but I am in a state of near euphoria today. This has been a long hard road and I haven't been this happy about something in a long time.
  9. 8 points
    The results are in.... PASSED! I submit my application to the character and fitness committee next week. If approved, I will be sworn in as an attorney June 12, 2019.
  10. 8 points
    I WON TODAYYYY!!!! MIDLAND FUNDING filed a lawsuit against me in Lancaster County Pennsylvania claiming that I owed a debt to an old credit card company. They had a lawyer out of Philadelphia Pennsylvania file against me in my local Magistrate Office. I was in the middle of moving when the first notification came through and missed the court date. Thank God the judge did a little research on Midland funding and decided to extend the date requiring Midland to prove that they own the debt and to prove how they got to the amount of that debt and to prove they have the right to have the debt. I think he called it 319b a local Magistrate ruling they can use. So when the new date came up I showed up for trial. I WAS SO SCARED!!! I ALMOST DIDN'T GO!! When I came across this website I began to gain confidence and decided to fight back. Midland funding LLC chose and attorney in Philadelphia to send me a letter that only showed the amount the last 4 digits of the credit card number and my name. They filed that letter with the local magistrate and I received a certified letter saying that I was being sued. I began to read about who Midland funding was because I did not know anything about them and I learned that they were buying debt by the thousands for only Pennies on the dollar and it made me even more angry. I put together a document "answer to the complaint" and a "request for documents", hoping Midland would have to prove their case. When I arrived there I was upset but ready to battle. They sent me into the Courtroom. I stood up as the Judge walked into the room. He said Thank you and allowed me to sit. He said, I did my research on Midland Funding and found they are a debt buyer and for pennies on the dollar. He said, Do you see Midland Funding or its Reps in the room? I stood up and said, no your Honor. He said, well do you have anything to say to the court today regarding your case? I stood up and said, I have prepared an answer to file with the court and he interrupted and said " well that's the beauty of your local court and answer is not required" He said AS HE LOOKED AT THE EMPTY PLAINTIFF SEATS WHERE MIDLAND WAS TO BE, " do you have any requests of the court today considering Midland funding is not present? And he kept saying that and then I got what he was saying and I said "um your Honor, I would like the CASE DISMISSED?" In a questioning voice. The Judge said CASE DISMISSED, DEFAULT JUDGEMENT ENTERED FOR THE DEFENDANT He reminded me they have 30 days to Appeal and good luck!!! YEAH, SO PLEASE SHOW UP NO MATTER WHAT!!! NO MATTER WHAT!!! TRY NO MATTER WHAT!!! #HappygirlinLancasterCounty
  11. 8 points
    The OH Supreme just ruled that debts accrue in the state of a credit card company. If the SOL of the company's state is shorter than the OH SOL, then the OH borrowing statute applies and the debt is time-barred in OH. Taylor v. First Resolution Investment Corp. "Today, we determine several issues relevant to the application of the FDCPA and the OCSPA to the collection of purchased credit-card debt in Ohio. We hold that the underlying cause of action for default on the credit card in this case accrued in Delaware, the home state of the bank that issued the credit card and where the consumer’s payments were made, and that Delaware’s statute of limitations—through operation of Ohio’s borrowing statute—determines whether the collection action was timely filed. We further hold that the filing of a time-barred collection action may form the basis of a violation under both the FDCPA and the OCSPA. We also hold that that a consumer can bring actionable claims under the FDCPA and the OCSPA based upon debt collectors’ representations made to courts in legal filings, specifically on a debt collector’s claim for interest that is unavailable to the debt collector by law. Finally, we hold that debt buyers collecting on credit-card debt and their attorneys are subject to the OCSPA." http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-3444.pdf
  12. 8 points
    I wanted to update everyone and thank everyone for their help . I received notice today that the JDB has had the case dismissed WITH prejudice. While it took forever and had me totally stressed, you guys were right, the JDB decided their best option was to walk away the safest way they could and that was an awesome result for me. THANK YOU ALL again and again!!!
  13. 8 points
    I just beat PRA at the Appellate Court level as a Pro Se.... http://www.creditinfocenter.com/community/topic/322477-in-need-of-some-direction-served-answered-received-interrogatories/
  14. 8 points
    WE WON! WE WON! WE WON! I say "we" meaning all of you! Hip Hip Hooray!!! Decision in.... and I quote, "On this record, the bar applies. The district court should have entered judgment for (MY NAME HERE). Reversed and remanded with directions to the district court to enter judgment for Defendant (MY NAME HERE) and to otherwise proceed in conformity with this decision." I started not to remove my name but decided I should for now. There is a link to the unpublished opinion, should I post it? I thank you all so much, if it weren't for the information, advice, help I received from this group I would not have won. Hell, I know I wouldn't have taken it all the way the the Appellate Courts!
  15. 8 points
    I agree with everything except number 3. And this is important. Even if you fail to serve a subpoena on the witness most of the testimony in a typical CCP 98 affidavit, and most of the documents attached as exhibits, should NOT be admissible at trial IF YOU OBJECT. This is because CCP 98 itself says, "To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case..." Most CCP 98 declarations do not contain testimony that would be admissible if the witness testified orally on the stand. The declarations usually do not set forth sufficient foundation. They usually contain hearsay that does not meet any exception. So even if you do not serve a subpoena, a judge applying California rules of evidence should not admit a typical CCP 98 declaration into evidence. I am not suggesting this as a strategy. But if, for some reason, you do not serve a subpoena on the witness, you should file a written objection to the declaration.
  16. 8 points
    Dismissed WITH Prejudice!!! I wanted to take a moment to express my gratitude for this place, without it I don't know where I would be. To two individuals here in particular, @debtzapper and @NormInGeorgia, thank you for all the advice and recomendation on an attorney. It was invaluable. @debtzapper I did end up using the attorney you recomended and they were great. This place truly is doing great things and has been a lifeline for many people in horrible situations. Had I not come here in '10, I would have lost before even getting started. It has been 4 long years dealing with this, the weight has finally been lifted. Now if I can just get the OC to remove their tradeline from my CR before late 2016... Here is the link to my original post: http://www.creditinfocenter.com/community/topic/325347-being-sued-by-asset-in-ga/?fromsearch=1
  17. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  18. 7 points
    Yes! I walked into the courtroom, sat down, heard someone mumble my last name up front and I said "that's me" and he goes "your case has been dropped you can go".
  19. 7 points
    A Look Back at 2016 There have been many successes over the past year for members of this site. Unfortunately, a few disappointing rulings have taken place, but I suppose that's to be expected. As the saying goes, "we can't win 'em all". Thanks to the knowledgeable members here, a number of collection lawsuits were dismissed in favor of the consumers. Some of those dismissals were a result of consumer/defendant demands for arbitration. A special thanks goes out to @fisthardcheese for his vast knowledge of and experience with the procedure. Thank you! Other members have taken it upon themselves to learn about the arbitration procedure in order to help new members. Thank you to @Harry Seaward, @shellieh98, and @Coffee_before_tea. I'm sure there are other members who have educated themselves about the procedure, so we thank you, as well. A special thanks to @Harry Seaward due to the fact that his willingness to learn about the arbitration procedure has enabled some Arizona defendants to successfully defend against lawsuits in very unfriendly courts. Some lawsuits were dismissed without a demand for arbitration. California is a prime example. Our California "regulars" are both knowledgeable and devoted. Due to their knowledge of CA civil procedure, the vast majority of debt collection lawsuits filed against the CA members of this site were dismissed. @calawyer, @Anon Amos, @RyanEX, @sadinca, and any CA member I've failed to mention, thank you! You guys rock! @texasrocker deserves thanks for his help to TX consumers which has resulted in dismissals. All of us, not just TX consumers, appreciate his help and devotion. We thank @debtzapper for his helpful case law research and constant words of support to members. If one ever needs supporting case law, he's the one most likely to locate it. Medical debts can be a "different animal". Thankfully, we have @Clydesmom. While many of us don't have to deal with such debt (a blessing), there are those that do. We are grateful that she can offer information and advice on that issue. @willingtocope and @Dylan Riggs are great admins. We thank them for their help and support. I'm sure there are other members that deserve a special mention, so I apologize to those I've omitted. Every member who offers helpful information deserves our appreciation. Needless to say, with so many different personalities on this site, there's been some contention. I believe in debate because it's provides the opportunity to both offer one's opinion and consider the opinions of others. In the future, I hope we can have healthy, informative debates without resorting to insults. Have a happy, healthy, and prosperous new year!
  20. 7 points
    So....here is the next one. Slapped the fire out of Midland today. Quote from the Judge to Midland, "When is your client going to learn and listen to what the CFPB has said?? If you keep coming in my court with this sort of evidence you should expect sanctions. " This makes the 5th case we have hit out of the park. I wish I had looked for FDCPA violations...but I got a dismissed with prejudice out of it.
  21. 7 points
    <I'm not a lawyer, and I don't play one on TV, but here's my story> It all started with a call from a Deputy Sheriff from the next state over. Appernatly I missed a trial for a suit filed by Calvary, by their attorney from NH, who hired a lawyer in MA. And there is a warrant out for me. Guessing he got my work # from the ex who resides in MA. I am to appear in MA Small Claims in Oct at 1pm. <What, am I part of the James Gang now? Should I be watching America's Most Wanted for a picture of myself?> So I hit the forums, read the court's self helps, read the forums some more........So I showed up on the date ready for a fight to find, that I already had a judgement against me and this MA lawyer asking me how I'd like to pay $1,049. (I use to live in MA, but this account would have been opened well after I moved to CT.) <what? Um, No!> Needless to say we appeared infront of the magistrate after I told the lawyer, "uh, no!", where I told him the magistrate I don't live in MA and this is the wrong venue. The magistrate actually said "what's the difference, you only live just down the road, don't you?". <Really? Um, No!> Then I proceeded to explain why the piece of paper he had in his hand was not evidence, just a claim that has the wrong address, and the rest may or may not be accurate. I need to see evidence of the debt. Needless to say he reversed the judgement and we set a new trial date for Dec. (check your State Laws on reversing judgement. While an appeal was 20 days, reversal based on new evidence is much longer) This site was invaluable to being able to build and file a counter claim, which I also served to the Plantiff via the NH attorney for $1,428.95, for violations of FDPCA, 811,a,2; 809, a, b; 807; 808 and 813,a,1,2 and Mass MA Ch 223A, 6 Mod of Service outside the Commonwealth, proof of service. A week goes by and and a letter comes from the NH attorney's office asking me to settle for $500. They want to GIVE me $500 to go away. "Mutual Release of All Claims and a Mutual Dismissal with Prejudice". <Huh? Um, Ok!> Guess my crash course in small claims law paid off. My new rule is to now say No twice before saying yes. Now I have to say, while I sat there in the court waiting to be heard, I lost count of the Debt Collector cases that went un answered and went to default judgement, prima facia. Basically what happened to me. I have always considered myself a fair guy, but when a company pulls this, its just wrong. Again, I want to thank all those here that are helping others out!!!
  22. 7 points
    This week Portfolio filed a dismissal with the court here in CA. I sent them a letter saying I will object, and in the meantime had a process server attempting service. I guess that scared them off. Thanks to all of those who contributed on my thread!! http://www.creditinfocenter.com/community/topic/323901-hunt-henriques-are-after-me-too/
  23. 7 points
    Another quick update for those following the thread: got my 100+ bucks back for process server costs from the JDB. They actually paid up pretty quickly (within a couple weeks). Wish I hadn't dumped so much money on postage, but hey, it helped me win the case.
  24. 7 points
    Update on Midland Funding Case Case was compelled to arbitration. Just received an email today stating "Please be advised, that the plaintiff will not be participating in the arbitration. The case was dismissed in the court. We will be closing the file accordingly". Thank you everyone for all the advise
  25. 7 points
    I won against UNIFUND today!! Dismissal with prejudice!! Thank you for this site and the Awesome people on it that were so gracious to help me!! i am going to pay it forward!!
  26. 6 points
    So if you're just reading this forum for the first time because you Googled "Midland Funding Summons" like I did 9 months ago I'm sure you're freaking out that someone showed up and handed you a summons. Your mind is spinning with all the options you feel you have at this point (and I know first hand that those options seem crappy) but the very last one on your list is "Fight these *expletives*". I'm sure it is the VERY last thing you think you could ever do and the thought of even being successful feels like a long shot at best. Well YOU'RE WRONG!!!!!! It's not as hard as you might think and the odds of you winning when going to court with a JDB (junk debt buyer) are more in you're favor than theirs 90% of the time. They are unwilling to buy the evidence they need to win and have to get someone to vouch for the docs they want to use anyway. So it's a matter of following the rules and calling their bluff and the odds are well in your favor. I am a 33 year old high school grad and work as a Paramedic for the past 12 years. I have a year of college education before becoming a medic so that gives you an idea of where I started my journey on this forum. I have been to the court house, not court before a judge, all of about 2-3 times in my life before this, and those were for traffic infractions. I have NEVER been in a courtroom and I was, to put it lightly, inexperienced in the area of law. So along came this forum and the people that are on here. These people are AMAZING and taught me how to fight my case. Now if you're here to have someone do all this for you then you need to reevaluate your intentions. YOU and only YOU can legally fight your case unless you hire a lawyer. So you need to understand everything about your case so you can defend yourself if your case makes it to court. Read this thread by Coltfan. It really helps us understand standing since it's the key to a JDB case, or any court case. This is how you take apart the JDB's case by making them prove they have standing to sue. Guess what, they usually can't. Two days ago I had court and today I found out I won my case. Here are the docs that I used while fighting Midland. These docs are for your reference and are not legal advice. You need to understand how they apply to your case and what is contained in them in the event you have to articulate a point to a judge. This case was in California and as such case law applies to Cali. Study your local court laws to find due dates for motions and other items. Please read around this forum since your case may not fit mine and other options might be better suited. I used a general denial since the content of the complaint wasn't verified. This, in my opinion, gives the JDB very little to grab hold of if you were to use the wrong affirmative defenses. KISS method, you know. I tried to play as stupid as possible to keep from tipping my hand that I was building my army. Just remember do you really want to ask for docs that will only help build their case against you?? All docs you send to the plaintiff need to have a proof of service attached and signed by someone that isn't a party to the case. Send everything, and I mean everything, by Certified Mail Return Receipt Requested (CMRRR) so you have proof they got it. Save the green card you get in the mail and attach it to your copy of the doc it applies to so you can reference it easily if they say they didn't get something. (Not uncommon) As you get docs from the JDB put them into a binder that is divided into sections so you can easily find what you need if you go to trial. It's easier to do this as you get them than later when you have a huge stack. I got my summons and answered the complaint with the general denial. Do this first since its due no more than 30 days after you were served. I sent my Request for Docs to start my discovery: My Request for Production of Docs (Discovery doesn't get filed with the court so just save copies and the CMRRR for each one you send) They sent me RFA, ROGS and Doc request and I responded: Response to Plaintiff's Request for Admissions Response to Plaintiff's Request for Docs Response to ROGS They responded to my Request for Docs with junk. Junk that most here seem to get in their discovery. When I say junk I mean nothing proving real ownership of your account. At this point I had a choice since most JDB's will respond with as little evidence as possible (since that's all they have). You can either send a Meet and Confer if they don't respond with the evidence needed to prove ownership. If they still side step you then you will have to file a Motion to Compel. But again do you want to tell them you know their docs won't win in court????? Because that is what you will do by forcing them to produce better evidence. Isn't the point to have a better case than your opponent? I was in the process of prepping a MTC and opted to just keep my mouth shut and drill them at the last second when they didn't have much time to work with. Here is the MTC and separate statement but again I never used them. So next was our Case Management Conference (CMC). The CMC is VERY basic and nothing to stress about (but you still will, I did). Dress for war since this will be the first time they get to size you up. This will be in front of a judge so be ready for that too. You will just be asked if things are going as planned and if anything needs to be ironed out. About 99% of the time the JDB lawyer will try and push trial back in hopes you will loose focus and forget something. Didn't work in their favor this time. You can try and fight this or use it to your advantage too since time can work on your side too. Be sure to file a CMC Statement prior to your CMC. After this I opted to go the route of being silent and vanished like a fart in the wind until 45 days before or trial date. This time was a total of 4 months since the rent a lawyer that they hired for the CMC pushed to have the trial moved as far out as they could. So at this point (45 days out) I sent my CCP 96. The CCP 96 makes the JDB disclose everything they intend to use in court. If they don't disclose it then they can't use it so it's a 100% mandatory tool in your case. DON'T MISS THE DEADLINE FOR IT!!!!!!!!! They will most likely respond with the docs they are going to use and any witnesses they plan to use. Most of the JDB will have a CCP 98 (affidavit in lieu of live testimony) submitted in an attempt to get the bogus docs past the business doc hearsay rule with out having to use a live witness. The key here is to subpoena the witness that is listed on the CCP 98 at the closest address to the court. The reason for this is that 99% of the time that person isn't going to be available for personal service there. Notice I say personal service, per CCP 1987(a) the service of a subpoena must not be in care of. It has to be to the witness. DO NOT let the JDB try and side step this. (Edit 6/25/13 - there is now Cali case law about the CCP 98 service. Calawyer posted a thread about it on the forum. Be sure to include it in your brief and MIL because they will attempt to side step the fact that service was unsuccessful.) So per CCP 98 you can attempt to serve the witness 20 days before trial at the address given. They address they give must be 150 miles at MAX from the court. If it's further it doesn't follow the code. They tried to give me 5 addresses to use for service but only one was in the 150 miles and that address was vacant (not good for them). So fill out a Subpoena and have the Sheriff Dept in the county where the address is listed attempt service. If they don't then use a process server. Be sure the server knows that service needs to be to the witness ONLY. It's the law. If service is unsuccessful then you can submit a Motion in Limine just before trial to get the CCP 98 affidavit tossed out. With no witness they have no way to back up the docs they want to use for evidence. I wrote this to help those after me understand why attacking the witness is so important. So next is the Motion in Limine and the Declaration in support of it. This will get the affidavit in lieu of testimony tossed and basically kill the case. No witness to back up the docs then the docs are hearsay and they can't prove they have standing. You also need to file a Trial Brief before trial. This presents your case to the judge. This will educate, him or her, as to why the JDB has no case. It has case law and references to codes of civil procedure in it. It's your case in a nut shell. I also filed a Request for Judicial Notice. This points out facts that may become part of the trial that are so obvious that they can't be contested. An addess is either outside the 150 miles or its not, no debating that. I submitted the request to point out that the mileage for 4 for the 5 CCP 98 addresses were clearly outside of the 150 mile range stated in the statute. I attached printouts from Google maps showing the miles. The MIL, Brief, and judicial notice all need to be sent to the plaintiff too. CMRRR remember? Here is a 60 day pretrial checkoff that was written by Seadragon. Links have been added to the appropriate docs. Next comes trial, if it gets that far. Wear a suit, rent one if you have to. I live in a county that has a fair amount of low income people and when I got called up by the judge I heard a guy behind me say "I thought he was a lawyer". That's what you want. Take your trial binder that you made. Act professional, it will go a long way with the judge. At the beginning of my trial the judge asked opposing counsel if he was a lawyer. I think he was so unimpressed with the lawyer's appearance that he really didn't think he was a lawyer, needless to say the lawyer was PISSED. I'm going to stop here for now. By this point you will be asking questions on the forum that apply to your case so you won't need this. (Edit: I added more about the trial in a post farther down in this thread at people's request. You can read more there about how trial went there) Just remember you can do it. They are beatable most of the time and they usually get stomped. Why do you think most don't go to trial? Thanks to Calawyer and Seadragon. Without them this wouldn't have been possible. Feel free to PM me with questions. I may not see your thread so you might need to ask me if you have a question. If others want to add to this thread feel free. (Oh and Midland if you read this :'> and send a better lawyer next time. The judge had to ask him if he was a lawyer at the beginning because he looked so lost, that's sad.)
  27. 6 points
    UPDATE: Just got back from my hearing on my Motion to Compel Arbitration and Plaintiff's Motion for Summary Judgement. Judge granted my MTC and gave me 60 days to pay the $200 filing fee. We have another hearing in April and as long as I have paid the $200 filing fee, the judge is closing the case. Judge said, "I am asking this as a compliment, are you an attorney by trade and if not what trade did you study?" Me: (laughed) and said no I am not. I have an Associates in Accounting but I stay home and raise my kids. @fisthardcheese @Harry Seaward and everyone else on this forum, I owe a big shout out to you for receiving this compliment! Definitely couldn't have done ANY of this without everyone's help on here! I will be forever thankful for all the help from everyone here!
  28. 6 points
    DISMISSED WITH PREJUDICE!!!! 🍾(Both lawsuits)
  29. 6 points
    @Brotherskeeper You have done an outstanding job helping the OP. Thank you!
  30. 6 points
    Hello, Here is the response I just received. I will hold my breath until I see the documents.... "My client will go ahead and accept your proposed settlement below. I will send you the settlement documents that you will need to sign and send back to me via email. Once we have received the signed settlement documents back from you – our office will notify the court of the settlement, and the court may remove the case from the docket".
  31. 6 points
    I know its been awhile.. and sorry for not updating about the case.. Anyways.. the week after I sent the letter (elect arbitration) to midland funding.. I received their complaint and sued me. During that time I haven't filed with JAMS. So, Answered their complaint with my MTC arbitration. Went to motion hearing. I was really scared. I panic so cant talk to the Judge properly. It was a bad experienced. The Judge want me to do the steps to arbitration in OC agreement. ( which I didn't do because plaintiffs filed lawsuit already I thought I need to wait for the Judge to grant my motion before I go forward.) Then, then plaintiffs asked for continuance and the Judge gave us 30days. After the hearing, I Followed the steps in the OC agreement for arbitration. With guidance of this forum, it was easy to do. Sent notice of arbitration to plaintiffs attorney, to midland and to synchrony bank with my JAMS Demand forms. Then I waited until they received my letter. After that I sent my JAMS demand form to JAMS. Few days later, JAMS received my demand forms and received an e-mail from them. I Print everything and made copies of all the documents I might need to show for the Judge. 30days passed and this morning was the 2nd hearing. The plaintiffs didn't show up. So my case got dismissed. They said they going to post the Order online and wait 24hrs. And I would like to THANK YOU ALL for the help and advices. The thread about arbitration really helped me A LOT! Again, thank you so much!!
  32. 6 points
    Not sure why you're taking this so personal. When an entity charges you $40 for neosporin and $75 for a bandage I am not sympathetic. Sorry.
  33. 6 points
    First rodeo, If you want this to succeed, please do exactly what others have advised you to do and start right away. The members here who advise on arbitration are extremely knowledgeable, and Harry Seaward knows AZ arbitration as well or better than most AZ lawyers. We have had a number of AZ posters like you who have had their cases dismissed by using the arbitration strategy. But they had to take the advice that was given and work at it.
  34. 6 points
    Hey, it's an UPDATE! Trial went down today - and it was dismissed. I arrived at the courthouse and was met by a different attorney than the gentlemen I'd had correspondence with - that is three different attorneys now, cycling on this case, and after I checked in, he asked for a conference room before introducing himself to me, and I kind of went on the defense. As the only other correspondence they've had with me since telling me "What contract?" and telling me to contact the OC was settlement letters, I steeled up. I said I was glad to meet him, surely, but I'd prefer that any conversation relating to the case goes into and stays in the courtroom. He then said, "Well, I figured that this was about your personal information, and I didn't want to bring that up and out loud in front of anyone." I said if it's kept in the courtroom, I was fine with the judge and the recorder being part of the discussion. He pressed again, with a "I thought we could talk this out." I said very clearly, "I'm not interested in settling, but thank you." He took that and sat back down, and we chatted about the weather and his trip up from the Valley before I pulled out some work notes I needed to study. We get called in, the nice judge comes on out (yay!) and we start with him bringing up my MTC Arb - it had been dismissed, and explained that it was going to be brought up again during the proceedings as to why, which was why we didn't receive any decisions or anything on it before trial. We agree that this is okay, I mean, what else do I do? I couldn't get anything binding it to the account from the OC. They just didn't have it. They didn't have it, and that was part of the problem I had getting the paperwork together to file the MTC - I said as much and apologized for seeming so unprepared when that was the matter of it. I figured I still have that class action suit settlement coming up, so I figure I could try to appeal but I still didn't want to settle. I charged in blindly at this point. So the attorney makes his opening statement that wasn't much a statement so much as it was here is all this paperwork we submitted upon service and are now submitting again as evidence let's all look through it again together, and the Judge and I flipped through it and saw it was nothing new at all, and then of course I had no opening statement. The attorney mentioned the denial of their affidavit witness Miss Persons, and then called me to the stand. So I go up and get sworn in and he asks, "So you filed the MTC Arb" - yes. "I see that you attached a Credit Card Agreement" - yes. "Is this your CCA for your account?" - This was a CCA provided to me by the OC after complaint but neither they nor I had anything that could link the CCA to an account. "So you don't know if it's to your account" - I was told that it belongs to AN account, but was not provided with any further information despite asking for it; I have copies of the response letter if that was something I should have submitted alongside it, but that doesn't have any other information on it either, linking it to the account. Meanwhile the judge is still shuffling through the evidence paperwork from Midland and the attorney shuffles through his before asking, "Did you file a discovery request with OC?" - No, I wasn't aware that the OC is represented in this case; I thought it was just Midland; I just wanted more information on the account and if Midland believed it to be mine per the OC, then isn't the OC obligated to just provide that information to me as an account holder with a simple personal request? "Did you file a discovery request with us?" - Yes, back in January, but I never received a response and I believe this came up in the pretrial conference; I opted not to send another as I had already done so once, had receipts on it, and was planning on the MTC Arb. He didn't have this in his file. There was a few things the other attorney didn't get, too, when it changed hands the first time so I don't know if that was part of it. "Do you deny that this is your account?" - Well, here's the thing, without proper information regarding it, I can't, nor can I affirm it; it's in dispute, hence, the MTC Arb. "I just want to clarify that you believe this account isn't yours, because if you're filing for Arb and providing this CCA that seems to lend to the fact that it's your account, if you're not denying that" - The account is in dispute, the amount is in dispute; why didn't Midland get this information from OC and maintain and correlate it so that the validity of it wouldn't have to come into question like this? That gave him pause, and the Judge and I both looked at one another bc I wondered if I overstepped, but he had this look on his face, and then it clicked for me. This was a good thing to point out. We looked at the attorney and we waited before the Judge asked for more questions. "Did you reside at this address" - (HAHA I WAS GLAD HE ASKED) Yes, though I would like to state for the court that the apartment number listed is incorrect, and I gave the correct one at that moment. This threw him back a bit and he shuffled around, and the Judge too a moment to say "I believe that property has changed management companies a few times since the date on this statement. A witness would be unreliable at this point." I leaned forward and said I had called asked and they had changed over, three times, and even if it were the same company, they don't have records kept back that far. Because I called and asked, to cover MY behind with that discrepancy. Judge seems to decide that this is enough and asks if there are any more questions. There aren't. I sit back down. The judge notes that I don't have anyone to cross-examine or call up, and the attorney again brings up this Emily Persons person, and how the court denied their telephonic appearance. At this point the judge acknowledges that and says OK, so about that. And says essentially, even if she were here the item would still be considered hearsay, and begins to tear down the affidavit point by point with a lot of language familiar from the Consent Order. The attorney starts to sputter about a couple of statutes that provide that the affidavit constitutes support of the evidence, and I took a quiet moment to politely ask for some clarification on who Persons worked for - Midland or the OC, and their knowledge as a Midland employee of OC's account management in regards to why Midland might not have all the paperwork I had to try to go to the OC for. The Judge nodded emphatically and walked BOTH of us through that point and reasoning. The attorney sputtered some more about the statute, and then the Judge goes on to address every other page of evidence, saying the exact same things I was saying about it all months ago when I was first served. How do we know this account was in that sold lot, how do we know this or that, when did any of that happen, how, how, how. He said not much of it was admissible. It was all "copy and paste, find and replace generic papers". He believed the affidavit was hearsay. The statement was a little troubling, but he said he was aware of the idea that it could constitute a contract of use and liability, and that that was the only reason why. But seeing as how even that statement couldn't be linked to more than half of the other pages, it had that address discrepancy, and that was the only statement provided - they really should have provided more proof of use of the account, or OC should have given that to them as well with the CCAs they didn't have... he was incredibly wary about its validity in the course of the life of the account. They went roundabout with this for a minute or few more before the Judge said, "Okay, okay. She can't attest to the validity of the CCA. You know this. It holds in the opposite direction, as well. You can't attest to the validity of this evidence, she knows this. I can't be inconsistent in denying her MTC Arb while affirming your evidence. That would be unfair. So I'm going to say, Miss 3am, you still have the opportunity to settle this before I make my final decision." "I'm not interested in settling." It fell out of my mouth like a piece of scorchingly hot food, I stg. "Okay. I'm going to dismiss this. Inadmissible evidence and lack of witness, possible lack of standing," he went on and filled out the paperwork. Then he plopped the copies of the evidence on the stand and said, "Here is your evidence back - unless you need the court to hang onto that for an appeal," (like wow that is savage!!!!) then he clarified that they'll be able to appeal it bc the attorney kept whining about how the court denied the telephonic witness but I don't know if they will or when they will, he was only representative counsel and it was not up to him; I get my $60 filing fee back and I don't have to opt-out of the Class Action suit (so I'm hoping that gets settled before an appeal can be brought about). I wished the attorney a safe drive back to the Valley and then I went to go get something to eat bc I was starving. So now that is that and I have two dismissal forms for the same case, lol. What can I expect as far as them appealing, does anyone know? This was a hot mess from the start but wowee, how about that?
  35. 6 points
    Welp a 6 month battle with Atlantic Credit, netted me a dismissal w/o prejudice. With my Denials of everything, it culmilated in a MSJ that they filed and i countered by attacking their affidavit of debt and calling heresay. I went in for oral arguments, and the judge extended the MSJ to allow a deposition of the affidavit. I found a place to setup the room, court reporter and all with a $500 refundable deposit, I sent the notice of deposition to the lawyers and witness and they filed (by the court date) for the dismissal w/o prejudice. I went so far as to get information on this witness and learned that while she worked in VA, her residence is in AZ, i believe i created doubt that she may be a robo - signer. While i will get my deposit back, it cost around $300 with all the certified mailings and notaries and filing to fight the suit, along with the countless hours i spent on this great site and also reading a few (outdated) books as well.
  36. 6 points
    Hey. Just wanted to say I "won" my case today. By "won",I mean had it dismissed with prejudice. This was on the day of trial after following all that you guys said including subpoena,MIL,etc. I dropped the ball a few times along the way,but it ended up working out. I am not pursuing costs or my own lawsuits at the time, but I did make sure these people will never come back and am satisfied. I want to give you guys the whole narrative soon and will.But,I also know what it's like to be in the middle of all this and just wonder if you can do it or be losing faith,so I decided to post this right away for that person that may have been on the fence and/or doubting themselves like me. Thanks @ASTMedic @Seadragon @calawyer and anyone else that helped.This has really saved my butt and been better than any attorney. In the meantime,I wanted to link to this: http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf If you decide to use SOL defense,this is a good reference to avoid 4 /choice of law clauses from the JDB.I didn't end up finding it until the day of almost,but I thought it was helpful. Also there is a guy on YT named MarvinArizona that I believe is a forum member.I learned a lot watching his response vid: Hmmm, what else...? The rest you guys have covered and I will tell the story in a few.I'm just kind of coming down from it all and don't want to miss any of the juicy stuff.I love your guys stories and want to do this one justice.Talk soon. - Nancy Q Su (ps this is the name of the attorney working for Resurgence Legal Group,I find this tidbit to be more entertaining after winning,now do your job Google SEO!!).
  37. 6 points
    Best news ever! Got to the mediation today and while waiting for this couple to stop arguing about the other couples son shooting their window with a bb gun. When the guy started talking ballistics a lawyer there asked who I was. She was representing PRS. She asked if I wanted to settle it while we were waiting....I said we could talk about it. We went I to the hall and she said she was prepared to dismiss everything! I only had 2 hrs of sleep because my schedule got changed and I had to work last night. So I totally didn't think to dismiss with prejudice. Lucky for me the other lawyer was on it and she agreed to dismiss with prejudice as long as I dropped JAMS. Win for me! And I just realized that I forgot to ask when my hearing is for my other summons I got about a month ago......I never got any correspondence as to when I am to be there for that. So I am super excited that one was dismissed and with prejudice! The SOL on it is this coming November! Makes me have more motivation to submit my jams paperwork for that one now. Hopefully scare them away again! Thanks for all your help!
  38. 6 points
    The stress relief on this side is amazing! I went to court in San Bernardino County on Monday afternoon and the judge started trial on time. No plaintiff in sight. Judge tells the clerk to check the halls and she yells out "Anyone from Winn/Calvary?" Judge then proceeds by stating "I'm going to give the plaintiff 3 more minutes". That was the LONGEST 3 minutes of my life of dead silence. Finally, Judge has the clerk go back to the hall to check again and when she showed up empty handed, the judge decided the case to be dismissed with prejudice and told to me to leave the courtroom as fast as I could (in humor, but seriously in case they showed up late). Take that Winn / Calvary!!! I write this post because when I was served and at first and that with my limited understanding of the court system, that I had a hurdle in front of me, yet was able to prevail because of this forum. If you are reading this because you just got served, understand there are many ways to go about your case, but YOU NEED TO DO the research! It is all here in front of you and the time just needs to be spent and be organized. Start a dropbox account to house all your documents so they are readily available for your reference wherever you are in the world. Start your trial binder now, just so that you have everything in one place. Setup a calendar or use an app to keep track of days. So here is my story.... Overall I would categorize my strategy as the minimal approach. I based most of my moves from @ASTMEDICS pinned post that describes how he knew what docs to use, but approached it carefully to not draw out the holes in the evidence too early on. And remember, don't take this case as personal - meaning that you feel like you do owe them any money or what they state is true. Over the other side, you are just a number and a financial delta. They are not eyeballing who you are, where you live etc...and they have a number to hit (spend as minimal money to litigate). They are producing documents that are pretty much hearsay (they as in Junk Debt Buyers) and they are not entitled legally to the amount they are claiming. You did not go into a contract or agreement with the JDB! I'll summarize how things went and I will also post my documents in the next few days after I redact them. - Served properly to my residence and I filed within the 30 days with an answer of General Denial. I did not list any affirmative defenses as to create any verbage that may come back to bite me. I e-filed it with proof of service (POS), paid the filing fee and sent the hard copies to Winn. - I procrastinated and did not ask for discovery with them or go with request of Bill of Particulars (BOP). They instead sent me the evidence, which was customer agreement (with no signature of sorts), alledge billing statements basically doing it for me. - Following that was Request for admissions and Interrogatories. This seemed daunting and rather hard to admit that it isn't your stuff at first. And they are doing there best here to try to trip you up. But after doing my research of many of your posts and docs, I typed out my responses and answers. Basically I answered that without proper authentication of the evidence, that I could not answer it correctly. - Next came the pre-trial hearing. Both I and the plaintiff was present (yet the plaintiff was running around between two courtrooms and was late). I was dressed in a suit and tie and stood confidently during the session. I requested that the trial date be set for 90 days out (this was my choice to give me more time to research and get ready for battle). Everyone that I came in contact with that day, everyone thought I was a lawyer. THAT's how you want to appear. CONFIDENT and SERIOUS. - Pay attention to Seadragon's (See ASTMedic's thread) trial checklist and follow it to a T. - 45 days out, sent the plaintiff CCP 96 - a request to provide evidence and witnesses that will be used in court. This is the big one and all evidence and witness will be listed out to you, so there is no "ambush" on trial day. This sent to Winn and with a POS. - I was waiting for the CCP 98 (affidavit in lieu of live testimony) that was due 30 days before trial. It never came and I basically kind of went bonkers, because everything I was reading about was how to subpeona the witness and filing a Motion in Limine. So back to the drawing board and focused on my trial brief. - I received back my CCP 96 with the same customer agreement, statements and this time a "bill of sale" with only a one sided signature from "capital one" and redacted amounts of all the accounts they purchased. No where on this document was my name or a mention of an attachement. The seperated garbled document that shows the amount of the alleged account, and some weird dates, but nothing official about it and no signature. They intended to call the witnesses, PMK (person most knowlegable) of Calvary's business and also myself. - I typed out the Trial brief based on another great post and tailored it to my case. I attacked the billing statements as hearsay, lack of foundation and that the bill of sale was only signed one sided. What happened to Calvary's signature?? Did the sale not go through?? Big hole in the evidence. Basically not a great trail of evidence that proves Calvary owns your account and the rights to claim against you under contract. I also attacked the PMK witness as one that only knows the business of Calvary's, not Capital One. - I waited literally to the last minute to file my brief which was 5 days before court as I wanted to give them the element of surprise and trip them up before trial. This probably should have been 10 days, so check your local court rules. Once again, electronically and it was under 10 bux. Sent the hard copies to Winn along with POS. - Once Winn received the trial brief, they called and left a message for me to call them back. I never called them back as I believe they were looking for the last ditch effort to reel me in on a settlement. - Showed up to court ready to battle and as you read above....no show! As I'm writing this, I am finding other cases just like mine were receiving case dismissals (and some without prejudice) via mail and avoiding this whole trial deal like I did. From what I gathered, they are doing some of the extra leg work early on that is pressing on their nerve to give up. By me going the minimal route, it ended up with the same result, but dragged out longer and a court appearance. Do your homework, take the time and post here with questions. Every law group and county will have different strategies, and you will have to do your best to make a judgement of how you fight your case. You can do this! Special thanks goes to ASTMedic, Seadragon, Rubytuesday, Coltfan, Anon Amos, shellieh98, mgp and countless others. I never had to post or ask questions because you all were thorough and helpful to everyone here. It takes a village! Thanks, Bill
  39. 6 points
    ive been out of the loop for awhile and wanted to update and thank everybody who helped me thru a real tough year or two. I'm happy to report that all of the defaulted debts are well past SOL, and that my credit score has been slowly climbing and has gone from 550 to almost 640 in just a year. My wife and i both recently got our first unsecured credit cards since the defaults. Were about 20 months away from the 7.5 year date since the last payment on the defaulted cards, at which negative credit reporting will cease. Was able to settle our underwater second mortgage for less than full amount and bring our home back into the black I owe so much to the people who helped me (you know who you are), and do my best to pay forward the knowledge i learned and documents and defenses i used to others in the same battle just wanted to give a little HOPE to people who get down in the dumps when it seems that your world is crashing around you. Time heals all and today is a great day to put your best foot forward. somebody recently gave me some words to live by: No amount of anxiety can change the future and no amount of gulit can change the past - so live in the day! <3
  40. 6 points
    UPDATE: 12/16/15 Just wanted to say thank you to all that gave advice, Reading the different forums on here helped greatly!! December 10, when I received their proposal to dismiss WITHOUT Prejudice: I replied, That I was more than happy to end this, BUT that they would have to Dismiss WITH PREDJUDICE. Otherwise I was more than willing and prepared to see them at the hearing 12/15/15. Believe or not, They airmailed me the correction on 12/11/15. Case was dismissed WITH Prejudice, and hearing was cancelled. Just waiting for signed papers from the court. Jan. 1 , 2016 according to credit report, its is all to drop off. My advice to anyone going thru this, however it ends up, answer, fight till the end, READ your paper work and make these JDB and their scum Attorneys work to prove it. Keep notes, and keep fighting! I was lucky as I think they had no proof, They did not follow court order, and worried when I told them I was going to counter sue. I did not. as I don't have the time, and I just needed this done with. Thank you Again!
  41. 6 points
    I WON!I WON!I WON! Case was dismissed with prejudice! The lawyer was waiting for me when I went to check in and asked me if I cared to discuss the case. I simply replied no. After roll call the sent us to mediation. The jbd lawyer stated the evidence he had and I rebutted them with the tools I aquire from this site. The mediator asked to speak with me alone and all but told me I should settle and that this particular attorney was very good at was he did. I told her I would take my chances in front of the judge. It didn't make it that far. When the jbd attorney came back in he told me he was willing to dismiss the case if I would drop my counter claim. I asked him if it was with or w/o prejudice and he laughed. Wanted to know how I know so much. I simply replied I had been given good advice. He told me once a plaintiff says they have no knowledge of the account it is dead in the water. I couldn't have done it without you guys! Thank you so much.
  42. 6 points
    Thank you all so much! I am a lurker. I got hit with a suit from Midland through Hunt and Henriques. I followed the playbook set forth by Seadragon and ASTMedic. They sent a Summons/Complaint. I sent a BOP followed by a general denial. They sent their discovery. And I answered them (thanks to others who gave their input). I sent my discovery. 30 days pass... no answer... until today. I got a request for dismissal. They're folding. Happy Thanksgiving to me. And, I am thankful for all of you and the help you give here. You peeps are awesome.
  43. 6 points
    Just to update. Went to court this morning on my motion to dismiss or stay pending arbitration. Met with the attorney outside the courtroom who offered to settle the matter for $200.00 After not much thought I declined and move forward with the court hearing. Judge was ready to approve my motion when the attorney requested to dismiss the case withour prejudice. I kindly requested it be with prejudice but that was declined. I highly doubt they will try to sue me again based on the results of today's hearing. So I'm thinking successful. What about you guys?
  44. 6 points
    Well, they sent a request for dismissal.
  45. 6 points
    I looked at the CCP 96 response and your letter was great. For what it is worth, I notice that they listed Maria Marin as residing at that San Diego address too. But her declaration suggests otherwise. One point I should offer that might not be apparent. You have now attempted to serve Marin at the address where she promised to be available for service. In my view, that is an additional reason that none of the 5 witnesses except Marin should show up at trial. Plaintiff should not be permitted to substitute one witness for another who promised to be available for service just because plaintiff finds it inconvenient to have her show up. You are prejudiced because you went to the expense of having a process server go there three times only to find out she wasn't there. You are also prejudiced because you want to cross-examine Marin on the declaration she submitted. You can't cross examine another witness based upon Marin's declaration. Congrats on the settlement offer which is a product of your hard work. It will turn into an offer of dismissal if Plaintiff can't come up with a witness for trial.
  46. 6 points
    I had not posted about this case before, but I received a Dismissal with Prejudice today on an alleged $11k debt. Can't share more information....at least not right now.
  47. 6 points
    The small claims rule for California is good information. This means those in CA do not need to rush into arb to avoid a small claims exception in the arb clause. However, the rest of your claims are plain untrue. At the start of a JAMS case, the case manager will require the JDB to pay the retainer (roughly $5k) to get started. If the JDB pays that, then the case manager will send a list of 5 arbitrators to each party. Each party has the right to strike 2 of the names from the list, and then rank the remaining 3 in order of their most desired to least. The case manager will then select an arbitrator based upon these lists from the parties. This process is clearly spelled out in the JAMS rule 15: http://www.jamsadr.com/rules-comprehensive-arbitration/#Rule%2015 There very much is an appeal process in arbitration. (the link will not work for some reason - just copy/paste this into your browser: www.jamsadr.com/appeal ) The key in arbitration is to always request and object. Remember those key 2 words. Request and object. You should always aks for the comprehensive rules to be in effect with the optional appeal included. Also always ask for an in person hearing in your home area. These things should be demanded in the initial phone hearing once an arbitrator is selected. The locatoin, rules, appeal and discovery process will be set at this time and that is what will be followed for the duration. YOU MUST ASK for it .... and if the othe side asks for something you do not want YOU MUST OBJECT. You should continue to object throughout the process for anything you disagree with. I would also ask for a hearing to settle any and all objections. This is also key. The more hearings you force, the more the JDB pays. They must pay the arbitratoin fees PER DAY. A JAMS appeal is in front of a 3-arbitrator panel. This means it will cost the JDB (or OC) TRIPPLE the amount they already paid to this point (roughly $10k). Then, after an appeal process is over - and the JDB has racked up roughly $50k in arb costs, they still must go back to court to enforce any award issued by JAMS. You have the ability to object and defend against this step as well. Again, this is all covered in the JAMS rules. With all of that said, here are the cold, hard facts about JDB's and arbitraiton: JAMS' website provides a list of consumer cases here: http://www.jamsadr.com/consumercases/ If you download that quarterly case information spreadsheet you will see exactly how many consumers have lost against a JDB in JAMS. The answer - 0. In fact, since there is so much misinformation and fear spread about arbitration here, I took the time to break it down for you. Below are some of the bigger JDBs and how all of their cases ended up in JAMS: Midland – 11 Settled; 2 withdrawal; 8 abandoned; 2 dismissed Cavalry – 4 settled; 1 withdrawal; 2 abanoned CACH - 6 settled; 4 abandoned Portfolio Recovery - 5 settled; 4 abandoned; 4 withdrawal LVNV - 1 settled; 4 abandoned Asset Acceptance - 2 settled; 4 abandoned 33 cases abandoned or withdrawn. This generally means the JDB refused to pay and JAMS closed the case. 29 cases settled. 0 cases lost by a consumer. None of them ended in an award. But like @Anon Amos said - Do your research. Check for yourself. Note, that I am not saying no consumer has EVER lost in arb. I am just showing the most recent cases reported in the JAMS report and that number is 0. I have read about some consumers who lost in JAMS, but the creditor never filed in court to make the award final, therefore the award became meaningless. I have also read about another consumer who lost in JAMS and the creditor filed the award in court beyond the time limit allowed. The consume contested this and the court dismissed making the JAMS award meaningless. Arbitration creates a ton of expense and hoops for the creditors to jump through. Your goal is to keep requiring them to jump through those hoops and wait for them to get tired and give up.
  48. 6 points
    It is even better than that. You also would have a Rosenthal Act violation thanks to the new Fair Debt Buyer provisions: 1788.56. A debt buyer shall not bring suit or initiate anarbitration or other legal proceeding to collect a consumer debt ifthe applicable statute of limitations on the debt buyer's claim hasexpired.And, there is case law out there suggesting that the remedies are cumulative (you can recover for violations of BOTH statutes). Plus, if the JDB sues in state Court, you can allege the federal claim (FDCPA) without fear of being removed to federal court because only a complaint may be removed--not a cross-complaint. Which is why most JDBs won't sue again.
  49. 6 points
    Documents are not either admissible or not admissible in and of themselves. In other words, you can't just look at a document and say, that one is not admissible. The key to the document's admissibility is the testimony from the sponsoring witness. That person must establish that it is authentic and establish some basis for the application of an exception to the hearsay rule (usually, in these cases, the business records exception to the hearsay rule). So when Plaintiff serves a CCP 98 declaration, we can evaluate the admissibility of the document because we have the sponsoring testimony in the declaration itself. We can see whether the declarant has personal knowledge that the document is authentic. We can see whether the declarant has shown that the document meets an exception to the hearsay rule. It is more difficult when no CCP 98 declaration has been filed because you are anticipating what the witness will say on the stand at trial. However, It is difficult to believe that a Unifund witness will have any personal knowledge that a document executed between Citibank and Pilot Receivables is authentic or meets some hearsay rule exception. It seems highly unlikely to me that a Unifund witness ever saw Douglas Morrison sign a document and therefore recognizes his signature. It seems unlikely that the witness could testify that either Citibank or Pilot prepared the documents in the regular course of their business. Or that the document was executed on or about the date noted. Or that a Unifund witness could testify as to the document's "mode of its preparation" or trustworthiness. So, the most likely scenario is that the witness just blurbs something out like "here is the Bill of Sale And Assignment document from Citibank to Pilot Receivables signed by Citibank Director Douglas Morrison. You will object and say that the witness has not shown that he/she has any personal knowledge that the document is authentic. Nor has the witness demonstrated that any hearsay exception applies. For example, he/she has not offered any testimony about the document's mode of preparation. The same is true of the other two documents (with the possible exception of the last because the witness might recognize Bloom's signature and be able to say that Unifund prepared the document in the regular course of its business). One thing that may happen is that the judge might say something like "well, I won't rule on the admissibility right now but I will allow you to cross examine the witness on these points after plaintiff finishes its case. If so, when it is your turn, you should ask questions like the following: Have you ever been employed by Citibank? Have you ever met Mr. Douglas Morrison? Have you ever watched Mr. Morrison sign a document? Have you ever visited Citibank's recordkeeping facilities? Have you ever personally observed Citibank employess creating documents? Do you know what computer system Citibank used in (insert appropriate year of bill of sale) for maintaining its records? Assuming the witness answers "No" to these questions, you should say "Your Honor, I renew my objection to the Bill of Sale And Assignment document from Citibank to Pilot Receivables. This witness has no personal knowledge that would permit him/her to testify that it is authentic. He/she has no personal knowledge of Citibank's recordkeeping procedures such that she could testify that the documents was prepared in the regular course of Citibank's business, she can't testify as to its "mode of its preparation" or trustworthiness. THerefore, the document has not been shown to be authentic and it is hearsay. If the Judge sustains your objection, that really should be the end of it. Plaintiff has not shown standing because it can't establish the initial transfer from the original creditor. Your should ask for a verdict in your favor on the ground that plaintiff has not shown, by admissible evidence that it is the assignee and has standing to pursue its claims in Court. However, if the Court doesn't immediately agree with you, you should repeat the questions for Pilot Receivables and Distressed Asset Portfolio (and your objections to the other two Bills of sale). Hope this makes sense. Ask if it doesn't.
  50. 6 points
    Well I woke up this morning, put my best suit on,reviewed all of my notes and put on my gameface. I was ready for battle!..........I went to court, I had a court time of 8:30, I got there at 8:00 but when I arrived at court and looked at the case log and my case was moved to 9:30...More waiting.....So I sat in the court room watching case after case and looking around to see who the possible JDB Attorney might be....Well the Plaintiff Attorney happened to be sitting right in front of me and she seemed to be glancing around herself, probably trying to figure out who I was Anyway there was just one case ahead of mine so she then knew that it was me that she would be dealing with...The judge called up my case number and I went up there with the JDB Attorney and she asked the judge if she could have a little time with me prior to appearing and the judge granted her her request...We then went into a little side office and she asked me some questions - Do you own this debt? I said "No Mam'" - So you do not own up to any of the alleged debt, I repeated "No Mam'. She then asked me about the case, and I said" I filed a Motion of Limine with the court and sent you and your associates a copy" She said "I'm sorry, but I haven't seen it, would you happen to have a copy that I could look at and I said sure, I brought you a copy just in case you didn't have one.." She read it over and and I explained to her the evidence that UNIFUND was trying to use against me, (She didn't even have a copy of that!) and my objections, I was quoting Ca code 1200, CCP96....etc for every piece of evidence against me.....She then looked at her calculator and I thought that she was going to try to make some type of settlement offer amount to me which I was going to refuse unless it was an offer to settle the case with prejudice.....She then said the magic words!!! I am ready to offer you a dismissal of the case with prejudice!!!!! I agreed , signed a paper , we went back into the courtroom and she told the judge of our agreement and that was that!!!! Case dismissed with prejudice!!!!!!!! I just want to take this opportunity to tell the Administrator of this site Thank you for having this wonderful Forum, I could not have done any of this without it and the wonderful people who have helped me down this road!! Thank you to shellieh98 ,calawyer,Anon Amos, bassplayr,Seadragon, and a Special Thank you to RyanEX for reviewing my MIL and giving me pointers along the way!! I am forever indebted to you!! I thank all of you for your encouragement and well wishes!! I so appreciate each and every one of you!!!! I will pay this forward!!!!! Love and Blessings to you All!!!!!!!!!