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Showing content with the highest reputation since 01/09/2016 in all areas

  1. 16 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
    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.
  4. 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.
  5. 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.
  6. 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
  7. 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
  8. 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!!!
  9. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  10. 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".
  11. 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!
  12. 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!
  13. 6 points
    DISMISSED WITH PREJUDICE!!!! 🍾(Both lawsuits)
  14. 6 points
    @Brotherskeeper You have done an outstanding job helping the OP. Thank you!
  15. 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".
  16. 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!!
  17. 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.
  18. 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.
  19. 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?
  20. 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.
  21. 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!!).
  22. 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!
  23. 5 points
    I will apologize for my absence at another time. But I had to post the news of this gift we received today from the California Supreme Court. Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. The case is Meza v. Portfolio Recovery Associates http://www.courts.ca.gov/opinions/documents/S242799.PDF
  24. 5 points
    In case anyone is interested, I filed the MTC for arbitration. The law firm was reasonably quick to get back to me, though I wasn't quick to respond (life got in the way). Once I did communicate with them, I asked for mutual walkaway with prejudice and TL deletion. They took it back to their client who agreed. Paperwork has been signed and I got an email from the lawyer today with a copy of the paperwork they are filing with the court for dismissal.
  25. 5 points
    @fisthardcheese @Harry Seaward @Brotherskeeper Update! The plaintiff's office reached out to me and offered to Dismiss WITH Prejudice at our upcoming status hearing in exchange for me to drop my AAA claim. We sort of tentatively agreed over the phone and they emailed me the agreement request. At this point then, I'm glad its sort of coming to a close now. Is there anything else I should prepare for prior to our hearing? I'm expecting to sort of just be handed a copy of the Order stating Dismissed With Prejudice and for me to drop my AAA case and I wouldn't hear about this account ever again.
  26. 5 points
  27. 5 points
    Well, the attorney was a no show after all that. Got the case dismissed. Thanks for the advice all!
  28. 5 points
    Well, got a phone call today. I couldn't answer it because I was working, however I had a voice mail. It was the Plaintiffs lawyer asking me to call him back. So i call back after i get off work, he answers and I say "Hello *** its *** returning your phone call." Oh well I wasn't expecting a phone call back as nobody ever calls back. I laughed and said well here I am. He then says so, I talked to my client yesterday and they are willing to drop the case with a mutual dismissal with prejudice. I said sounds good! So now I need to get in contact with JAMS and drop the case once I get all the paper work in order. Couldn't have done it without all of your help!!! @fisthardcheese@Brotherskeeper@debtzapper@BackFromTheDebt@nobk4me@Goody_Ouchless@Xerxes@BV80
  29. 5 points
  30. 5 points
    We have seen a case or two where the judge asks to see the arbitration clause and says "sorry, counselor, but that's the contract you bought," before granting MTC. So, number one, have a copy handy with the relevant section(s) highlighted. In these cases, the judge also tries to warn about potential costs and asks if you are sure. Don't be scared - you know that your exposure is limited by the rules. A simple "yes, your honor," will do. Plaintiff's potential arguments: 1) The clause doesn't apply to us. The answer to that is basically "are you freaking serious?!" You will need to find something more professional to say, obviously. 2) Arbitration will cost more than the debt is worth. Again - "It's your contract." 3) Too much litigation has already taken place. That one depends on jurisdiction. It looks like you elected arbitration in your answer, so you are good. 4) Small claims/debt collection exception. It looks like Synchrony has "we will not require you to arbitrate" small claims or collection case. I believe we have seen lawyers argue that that means the matter is not eligible for arbitration. The answer to that is that "they" aren't "requiring" you to arbitrate, "you" are "electing" to have this settled in arbitration. 5) We have seen a couple cases where plaintiff comes back with some crazy case law that mentions arbitration, but never applies to the matter at hand. That you'll have to address if it comes up - probably with a continuance to have time to research their argument. 6) They may send you into the hall to discuss, where Plaintiff's lawyer will lie about costs, etc. Remember that you are the same as a lawyer in this matter and anything unethical opens opposing counsel up to a Bar Complaint. A lawyer is not permitted to knowingly lie to opposing counsel without being opened up to sanctions. Others disagree, but if I were in your spot, with a case worth about $1000, I'd request a moment "in the hall," with opposing counsel and explain that I'm not some rube that just fell off the turnip truck and that we both know that his client does not arbitrate these cases. I'd say "in the interest of saving us both time, and you money, would like to just dismiss today?" Maybe even have a dismissal thing printed out for everyone to sign...
  31. 5 points
    Greetings all. Here's an update on my case. I ended up hiring a lawyer for my appeal. It was well worth it. Lawyer did a great job with our briefs. A few days before we were scheduled for oral argument, CACH contacted us to discuss a settlement. Just heard today that it's official. The judgment has been vacated. The case has been dismissed with prejudice. Happy New Year! Keep up the good fight!
  32. 5 points
    calawyer you da man! Judge looked over the CA Supreme Ct case you cited and said he agrees that my case constitutes balance billing and scolded the jdb for even bringing this case. Case dismissed and will be filing to recoup my expenses. Glad I listened to you and a few others on this forum and not the naysayers that automatically assume the hospital is always in the right. Thank you!!!!!
  33. 5 points
    I wanted to follow up on my case. I received the dismissal letter from the court yesterday. The case was dismissed with Prejudice after settling with Midland at $575 for the $18xx claim. I believe the Arbitration defense is what incited them to settle. My lesson learned from this situation is: - start immediately in your response to the claim - listen to this group intently (they know what they are talking about) - do you own research so that you can grasp the concepts and procedures better yourself Thanks again so much Harry and all the others that assisted on this. Such a great group and resource.
  34. 5 points
    This is what I recommend to get the ball rolling on arbitration. Send a letter to Plaintiff's attorney informing them that, in accordance with the controlling agreement associated with the underlying account, you are electing arbitration to settle Plaintiff's claims against you. Keep it simple. One or two sentences is sufficient. Be sure to attach a copy of the credit card agreement to your letter. Prepare an Answer to the lawsuit in which you line-by-line deny all of Plaintiff's claims except your name and address (and marital status, if it happens to be correct). In your answer, make a section titled "Affirmative Defenses" and under that state that you have notified Plaintiff per Exhibit A that you elect private contractual arbitration to settle their claims against you, and therefore believe the court does not have subject matter jurisdiction over this lawsuit as all of Plaintiff's claims are now subject to private contractual arbitration. Your Answer doesn't need to be complicated. Attach a copy of the above letter to your Answer as Exhibit A. Prepare a "Motion to Compel Private Contractual Arbitration (Hearing Requested)" (name it that, including the "(Hearing Requested)") in which you ask the court to order the parties into "private contractual arbitration in accordance with Arizona Revised Statutes §12-1502 and the attached letter and agreement, Exhibits A & B respectively, that is controlling on the underlying account". Inform the court that you want a hearing on the matter. As with the Answer, don't make your Motion to Compel (MTC) complicated. Attach your letter as Exhibit A and the Affidavit (see below) and Agreement at Exhibit B. Prepare a jurat affidavit (google the format for Arizona) in which you swear under oath that the attached agreement is a true and correct copy of the agreement that was in effect during the life of your account. Your affidavit must be notarized under oath. Be very certain what you claim in your affidavit is true - otherwise you will be committing perjury. (I found a Q4 2012 Barclay's agreement you can use to compare your agreement with. ---> creditcardagreement_7593.pdf) File your Answer within 20 days of when you were served. File your MTC (with copy of letter and Affidavit and Agreement attached) fairly soon after, if not the same day as your Answer. Contact AAA at the phone number and/or website provided in the agreement. Inform them you have been sued and the Plaintiff's claims are subject to arbitration by AAA and you want to know what you need to do to get started. I would record this phone call if at all possible because they may tell you that the case cannot start until Plaintiff pays their portion of filing fees. This is important because Plaintiff may instead try to claim you have to do something first. So here's how this should work. After you file your MTC, Plaintiff has 10 business days to respond. If they respond, you have 5 days to file a reply to their response. It's at that point that you would cite caselaw relevant to your motion. The Court then has two options under the Rules. It can grant your motion without a hearing, or it can set a hearing for oral argument on the motion. Some courts have denied the motion with no hearing. This is improper under the current Rules of Civil Procedure, but the only remedies are a Motion for Reconsideration (which I do NOT recommend) or an appeal (which is a hassle and could be costly depending on your financial situation, but I HIGHLY recommend going this route on any denied MTC). If the MTC is granted and Plaintiff is forced into arbitration, they will dismiss their lawsuit against you and you walk away. If the MTC is denied, you can opt for an immediate appeal (recommend) or try to challenge their claims in court. I will tell you from personal experience and all of the cases I've seen come across this board, your chance of beating this in court is about 10%. Basically you have to end up with a judge that doesn't accept Plaintiff's evidence or a case where Plaintiff drops the ball with their documentation somehow. So you really want to concentrate as hard as you can on first getting this into arbitration. If that doesn't work, we'll help you with a Plan B. In your case, there is a clause of the Arbitration provision that talks about "Small Claims Court". Midland has been known to try to say this clause exempts their claims from arbitration. In other cases, the wording of the agreements was much more clear about keeping small claims cases out of arbitration. In your case, the agreement says a claim "may" be pursued in a small claims court "provided the action remains in that court". There's really nothing at all in your agreement that says a claim filed in small claims court must remain there, and I would argue the "remains in that court" clause leaves the door open for the Court to order the parties into arbitration without being in opposition to the agreement. Also, I would argue the definition of "small claims" is open to interpretation because it says "Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction". "Equivalent" requires some research and analysis of both court systems to be able to establish what the AZ equivalent of a Delaware JP court is.
  35. 5 points
    Yes, the attorney was mad because you prevented her from getting the default or consent judgement with no work on her part, which is what she expects to happen. If those attorneys intend to put ANY work into a case, it is merely to intimidate a consumer with that stack of papers, at least half of which are not admissible in Magistrate court anyway if one knows the rules. But you did a great job by reading here and preparing yourself, having your MTC and not backing down when she lied about how "expensive" it is, implying you will be on the hook for even a single dollar of that (you're not). The Synchrony agreement states they will pay for all arb fees, so when I file my arbitration with JAMS I just send a cover letter stating that this is what the agreement says and that I am requesting that PRA forward my consumer portion of the filing fee directly to JAMS. Make sure you read the JAMS Demand form carefully for instructions on how to file. You need to send JAMS 2 copies of each , the Demand Form and Card Agreement. Send it CMRRR and keep a copy of what you send too in case you need to show up to court before you get a response from JAMS. It has become more common for the Magistrate judges to set a new hearing date rather than dismiss cases. Don't let that rattle you. Also, PRA is not going to participate too far into JAMS. They just don't do that. My guess is that once you file and JAMS sends the commencement letter, you will find a dismissal from PRA on the court case soon after. JAMS can move slow, so just prepare to show up at your next court date with the proof you filed and let the judge know you are still waiting on JAMS to set a hearing date, etc. Rinse and repeat until PRA quits. I like people who do their homework ahead of time and stick to their guns in the face of these professional bullies like the PRA attorney. You continue to do that and you won't have to worry about this issue for too much longer.
  36. 5 points
    Please. It is never OK to call someone you don't know a "deadbeat".
  37. 5 points
    It is my prediction that the CFPB will be abolished or Cordray will be replaced by someone so conservative as to make the name of the organization a joke. And efforts to close the courthouse doors to consumers will be redoubled. First target appears to be two statutes near and dear to our hearts: statutory damages under the FDCPA and FCRA.
  38. 5 points
    I'm about the furthest thing from a Trump supporter, but I also have a sense that much of what HuffPo is about is going on the offensive against, and creating hysteria over, anything that comes from anyone on the right. They are the left wing version of the NRA.
  39. 5 points
    Well, it didn't take long after I got a lawyer involved. We settled without going to court. I got some, My son got some, and the lawyer got alot lol.
  40. 5 points
    You need to add the SCOTUS cases mentioned in this thread. Volt, AT&T, MOSES, CompuCredit etc... There can be no question that the NV rules are preempted by the FAA. Here's a NV case for you to cite as well. Bullet point 10, I would remove or change the wording. You're leaving too much wiggle room for the court to determine the difference between Private Arb & Annexed Arb. In my opinion, your bullet point should say something like:
  41. 5 points
    I just wanted to Sincerely Thank everyone on here that has so graciously offered advice and help. The hearing went well today and the judge dismissed without prejudice. I'm not sure what this means but it sounds better then where I sat yesterday. You guys are awesome!!👏 I have nothing but gratitude!
  42. 5 points
    Verdict is in:" DISMISSAL WITHOUT PREJUDICE FILED FOR THE ENTIRE ACTION AS TO ALL DEFENDANT(S) AND ALL CAUSES OF ACTION(S). " I showed up to court, and the clerk informed me of the news, I was ecstatic. I got to say a big thanks for all that helped me again with another case. @calawyer thank you for helping me such as I never received the dismissal in the first place. I hope all people that get sued in California by JDB are lucky enough to find this board, it's truly invaluable. How do I go to get my costs back? I didn't file for my costs in my last case.
  43. 5 points
    Done, never even saw the judge. I got there a little early and checked the schedule. There were two on the board for CACH, I was number 2. There was no meeting in the hallway, no offers for settlement, nothing. I had filed my Trial Brief, Objection to CCP98, and Declaration in Support of Objection last Thursday and overnighted them to plaintiff. They received them Friday and filed some sort of response from the records on the court site late Friday, but I don't know what that was. I expected them to give me that response before trial this morning along with their Trial Brief but never even talked to the rent-a-lawyer before going in the courtroom. There were only a few people in there and it was fairly obvious that there would be no witnesses. I checked in with the clerk and took a seat. Shortly after the rent-a-lawyer that I thought I recognized from the case management conference months ago walked in and took a seat up front. The clerk called her and she said they dismissed without prejudice. The clerk informed her that I was there and had already checked in. She said "Oh? Ok we'll go talk." They were dismissing without even knowing if I was there when they could have received a default had I not shown up, odd... Anyway we stepped into the hall and she said that they were dismissing without prejudice and I was on my way. I think the 'nail in the coffin' was that they used a vacant address for the service in care of on the CCP98. ABC Legal where they said service could be made vacated their office in Orange County over a year ago (according to the process server I used), but that was still the address that was listed for service. I have my memorandum of costs to send to the plaintiff and will get that on its way. Thank you for all your help, @Anon Amos, @sadinca, @RyanEX, @calawyer, and I know @HomelessInCalifornia wasn't in this thread but I borrowed from him, and @HotWheels96 who helped me win a different case a couple years ago and I re-used some of the excellent stuff she did for me on that case for this one. I will post up redacted copies later of what I submitted in case it can help someone else along the way. Most of it is just borrowed and stolen from what others have used... One more question, is there a way to get this off my credit since they dismissed, or am I stuck with it until it falls off because it was dismissed without prejudice?
  44. 5 points
    Update: I received a notice from Magistrate Court that my hearing was on August 8 at 0900. Previously, I had sent a letter to the JDB's attorney notifying them of my election of binding individual arbitration, which I had filed with JAMS. In my answer to the complaint, I had filed a Motion to Compel Arbitration and provided 3 Exhibits: A) My letter to the attorney notifying them of my election of arbitration through JAMS (B) A copy of the credit card agreement that contained the arbitration clause, and (C) A copy of my JAMS filing. In my answer paperwork, I included an unsigned order to grant my motion to compel for the Judge to sign if he ruled in my favor. All of this paperwork was filed with my answer. On the morning of the court date (Monday), I arrive about 30 minutes early and position myself at the front of the courtroom. I had copies of everything in hand, just in case I needed anything. As I am waiting, I see a woman arrive in the courtroom identifying herself to the court reporter as being from the attorney representing the JDB. I heard her say something to the effect of "he is asking for arbitration, etc." At this point, she leaves the courtroom and returns a few minutes later asking for me by name. I acknowledge her and she takes a seat next to me. She then states that "they are willing to settle for half, yada yada yada." I responded that the only acceptable outcome for me was for me to pay nothing, and for the case to be dismissed with prejudice - otherwise, we would take it before the judge. Of course, she didn't agree to my terms. At about 0910, court is called to order. The judge brings up my case first and states that he had read everything I had filed, and saw no reason not to grant my motion to compel. He asked the attorney representing the JDB if she had any objections, which she stated that she did not. The judge said he would sign the order to stay proceedings pending private contractual arbitration, and I received the signed judge's order in the mail today. I don't anticipate that Midland will be willing to pay the required $1,200 for them to proceed with JAMS for a disputed amount of about $2,000. I feel rather confident that they will dismiss at some point. Thanks again to everyone who provided advice and guidance through this process. I found all of the information to be on point, and very useful. It was a great feeling walking out of that courtroom on Monday!
  45. 5 points
    There is actually a multi-part video course on a consumer attorney website that is good on some of the basics you should know when facing a new debt collection lawsuit. Here is the link: https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/ It is particularly useful when you have just been sued and can still avoid making big mistakes; Since you have just sued by portfolio recovery associates in California court, it should be good for you because the site pertains specifically to California collection lawsuits. In the spirit of full disclosure; I actually am the person who made the course, so hopefully this won't be perceived as spam (but it is free). Good luck.
  46. 5 points
  47. 5 points
    Team California probably wins more debt collection lawsuits than most consumer law firms in Cali. And they do it for a price than none can match.
  48. 5 points
    @calawyer Of course, here are the details. Lol. The lawyer called me and asked if I wanted to settle, as she was speaking, I sent the M&C letters via fax and told her to check her fax. She did and I said I would not settle. Showed up to court 2 days later, handed them my trial brief and objections. Judge called us up, and she said: case dismissed. This victory was all our victory. You guys put in the same work as I did.
  49. 5 points
    I would like to thank every person here, you are all so selfless. I won my case. I could never be so thankful to all the people here. .
  50. 5 points
    Just got a nice letter from the plaintiff's attorney. Dismissal with prejudice after a day in Court and mention of the Consent Order against Encore. ?