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Showing content with the highest reputation since 01/11/2018 in all areas

  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 dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, 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. 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.
  3. 6 points
    DISMISSED WITH PREJUDICE!!!! 🍾(Both lawsuits)
  4. 6 points
    @Brotherskeeper You have done an outstanding job helping the OP. Thank you!
  5. 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".
  6. 6 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".
  7. 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
  8. 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.
  9. 5 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!
  10. 5 points
    Just received: ordered dismissed, with prejudice by Midland
  11. 5 points
    Hey everyone, just wanted to post an update. MCM was true to their word, dropped the suit and they are sending a letter stating my wife is no longer obligated for this debt. All I had to do was submit medical documentation and her social security award letter. Thanks for everyone's help!
  12. 5 points
    Well, the attorney was a no show after all that. Got the case dismissed. Thanks for the advice all!
  13. 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
  14. 5 points
  15. 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...
  16. 4 points
    Just wanted to update everyone. I ended up winning by settlement. Had the case dropped with prejudice and Midland is paying for my arbitration + court fees. I'd like to thank everyone who pitched in with advice and helped me along the way. Most of all, would like to thank @fisthardcheese with their guide for arbitration. This is single handedly the only reason why I won so effortlessly. If anyone is in my position, please give the guide a look-see. Thank you again to every1!
  17. 4 points
    After following much advice and reading many post over and over on this forum , I have had my day in court and my MTC arbitration and stay the proceedings was granted. In Louisiana you must file your answer , MTC and a memorandum in support of your motion, a little different than the MTC examples posted here. You must also state if a court date has been set, if not you must request a court date and include a order sheet. When I filed my MTC the judge ordered PRA/Rausch Sturm to show cause as to why arbitration should not be granted. I followed all the court rules and advise from this fourm. The Rausch Sturm attorney was served as required by my state. They did not object or show up to court this morning. The judge granted my order and chucked/smiled while signing it. He said he was impressed with my ability as a Pro Se. I thank everyone for their post about arbitration, without that I would have been lost.
  18. 4 points
    I have had my run in with the same law firm, same debt company, same credit card, and same state. My advise to you is to read through my thread and see how much this community is absolutely amazing. See how a normal Joe shmo like myself, turned from a uninformed scared person, into a well informed individual. The process takes time, research, and patients but in the end is rewarding and self fulfilling. If you start reading through my thread you will see i made a lot of mistakes early on, luckily I had some guardian angels on my side such as @fisthardcheese@Brotherskeeper@nobk4me@BV80 just to name a few. This thread is packed full of great information to help you along your journey. I hope it finds you well in your research and aids you in successful battle!
  19. 4 points
    Hey, everyone! Gurstel and Calvary accepted my settlement offer. Looks like I was able to save some time. Thanks to everyone that commented and helped during this process. You all helped save my sanity. I truly appreciate it.
  20. 4 points
    Have not been on here in a while. Last time it was defending against Midland Funding. Arbitration WORKED 100% to get it to Non-Suit. Today Cavalry Law on Behalf of CITI Bank sent me a letter w/ a courthouse ruling of non-suit. I didn't even get served to go to court. All I did was write a professional letter and had it certified at the post office. I think certifying helped. I owe everything to this forum before beating Midland, and today was just a reminder of how we can overcome these scumbag debt collectors, we just have to be PRO ACTIVE Anyway just wanted to check back in! -C
  21. 4 points
    Nice try. I said they won't arbitrate their own claims. The case you posted is one where several consumers filed a class action lawsuit against PRA. That's nothing at all to do with what we're talking about here. You're not just "sharing your experience". You are sharing flat out false information from other sources that are known to promote 'snake oil', and you're also misleading people using irrelevant and inapplicable lawsuits. You've been warned multiple times about both. Now stop it.
  22. 4 points
    @CandyCLC I want you to know that this thread contains some very helpful information for future Michigan defendants. Various viewpoints about possible strategies were expressed and discussed for you to consider. You asked a lot of questions before taking action and posted your drafts for review. I am appreciative of your willingness to submit your motion to compel and stay in lieu of an answer. While I (a stranger on an Internet forum) felt confident that your motion was properly supported and would have been well-taken by the judge, we can't know that, of course. The fact that you were complimented on your prepared documents and the attorney's eagerness to settle before the hearing lend some weight to my opinion. You were very clear from the beginning that you wanted to settle for a sum you could afford. You achieved your goal. I agree with @BV80: I'm happy for you.
  23. 4 points
    Fair warning to all reading ... this is a horrible strategy. If you file a motion, fight the opposition and argue to the judge that your motion should be granted and the case moved to arbitration, and then the judge grants your motion, you are doing nothing but a disservice to yourself by waiting any length of time to file the JAMS/AAA case. Filing an arbitration case is the easiest process in this entire ordeal. it literally requires filling out a one-page document and then printing 2 copies of it along with 2 copies of the card agreement and putting them in the mail. DO NOT DELAY THIS PROCESS if you want to win.
  24. 4 points
    This is how CIC continues to be a vital community and viable resource for people in need of help.
  25. 4 points
    @Mloske Fantastic! I've been wondering about you. Thanks for the update! Keep us posted.
  26. 4 points
    Debt collectors usually provide that language. Are you sure it's from AmEx? If it's from AmEx, perhaps NY law requires they provide. Otherwise, the letter is from a debt collector. In any case, according to the notice, the debt it past the SOL and they can't sue you or report to the CRAs. Considering they can't sue you or report it, why would you want to pay anything? As has been stated, collection efforts would be letters and possibly calls but nothing else. If the letter is from a debt collector, you can send a cease and desist.
  27. 4 points
    Listen to these guys, they have helped me tremendously! I cant tell you enough however to check, double check, and then triple check that you have everything in order. It has bitten me in the butt a few times. I seem to have an amazing guardian angel, so im lucky i was able to resolve them quickly without consequence. As the others have posted Arb is your best bet, so get all your ducks in a row and look it all over with a fine tooth comb. Answer with your affirmative defense -Lack of subject matter jurisdiction. Motion to compel - Include case law from Ohio pointing out that an arb agreement is binding, and has been ruled by courts higher then your local municipal court. ( i.e. the supreme court ) In your motion be sure to attach a copy of the agreement that has the arb clause, this should be paired with an affidavit of authenticity that must be notarized ( Mine was done at my local bank ) Also be sure to include in this packet a judgment entry for the judge to either approve or deny the motion. (something i forgot to include) Read up on local court rules as well as Ohio Rules of Civil Procedure, and be proactive in preparing / learning. This process is long and frustrating, so be patient and let the wisdom of these fine gentlemen to guide you through to the end. In my thread (https://www.creditinfocenter.com/community/topic/329386-lvnv-funding-llc-v-me/ )I have gained alot of help from these guys if you can find anything useful there feel free. I urge you however not to just copy and past, make sure you understand what your doing before just playing monkey see monkey do. Good luck friend, be patient and open minded, all the tools you need are here to succeed!
  28. 4 points
    Midland knows a denied MTC is appealable in AZ because they have had this argument shot down several times here. They intentionally mislead the court. I would first work on filing a motion to rehear the appeal. Make your cornerstone argument that the appeal which is based on a denied MTC is not subject to 12-2101 as Midland argued, but is instead governed by 12-2101.01, which clearly states that a denied MTC is immediately appealable. If the Superior Court reverses itself, I would then get the ball rolling on getting the case into arbitration. I typically don't like counter claims in arbitration, but I really believe you have one here for Midland intentionally misleading the court. So instead of settling for Midland just walking away from their debt, I'd push really hard to get a little something in my pocket from them before letting them of the arbitration hook.
  29. 3 points
    @Brotherskeeper @fisthardcheese @BV80 @Harry Seaward Well just got the email from JAMS telling me who the arbitrator is. It's Mr. Bradley Winters Esq. Plus they sent a bill to Midland's attorney for $5000. So let's see if they will pay this one. Thanks again for all the help. Will keep you all informed on what happens.
  30. 3 points
    As the others have said, mistakes happen. I'm actually relieved it was that and not some new rules we had to try to figure out.
  31. 3 points
    First off, the title of your thread is inaccurate, unless you filed lawsuits against PRA and Cap1. Second, can you give us details about how you accomplished these things? Without that, your thread is useless.
  32. 3 points
    It is nonsensical for a person who asked for and was granted arbitration in a case to then nitpick by demanding the other side file instead AND giving up the extra little bit of leverage being the Claimant in the arbitration case will hold. Let it be known across the land: If your MTC is granted, FILE THE ARBITRATION CASE IMMEDIATELY AND WITH NO RESERVATIONS. Filing an arbitration case is the easiest part of this entire process. Not doing so is just plain silly.
  33. 3 points
    Same story and congratulations - great job! Can't believe attorney said you got agreement from a "bogus website" - because I'm sure someone has the time, money and insanity to create a bunch of realistic, yet fake, credit card agreements and post them online - classic!!!!
  34. 3 points
    Well it’s been a lot of hurry up and wait but after some back and forth I got myself a dismissal with predjudice! Everything was agreed upon outside of arbitration and filed in court. They spent about $5800 in arb fees and didn’t get the debt paid so all in all a big win for me. Thank you you all for your help! @fisthardcheese
  35. 3 points
    One more thing - the lawyer mentioned the costly nature of Arbitration, how it could be drawn out with additional expenses etc. Judge only replied, 'you made your bed, now lay in it'.
  36. 3 points
    @Mloske Fantastic news! Congrats!!!!
  37. 3 points
    I went to court and checked with the clerk. They indeed did dismiss and removed the case from the schedule. So if I ever get sued by a JDB again, I have everything ready thanks to this site.
  38. 3 points
    The following "validation" letter has been floating around cyberspace for years. Once in a while, it might work, and a debt collector will no longer contact the consumer. However, any debt collector who knows just a little bit about the Fair Debt Collection Practices Act (FDCPA) knows that the information and requests in the letter are NOT supported by either law or court rulings. DO NOT SEND THIS LETTER! Anyone who suggests you send that letter does not understand the FDCPA and has not researched court rulings. To Whom It May Concern: This letter is being sent to you in response to a notice sent to me on ___________(the date the consumer received the collection letter). Be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (B) that your claim is disputed and validation is requested. This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you. Please provide me with the following: 1)-What the money you say I owe is for; 2)-Explain and show me how you calculated what you say I owe; 3)-Provide me with copies of any papers that show I agreed to pay what you say I owe; 4)-Provide a verification or copy of any judgment if applicable; 5)-Identify the original creditor; 6)-Prove the Statute of Limitations has not expired on this account 7)-Show me that you are licensed to collect in my state 8)-Provide me with your license numbers and Registered Agent At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau’s (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following: Violation of the Fair Credit Reporting Act Violation of the Fair Debt Collection Practices Act Defamation of Character If your offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist. Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is. If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including but not limited to computer generated calls and calls or correspondence sent to or with any third parties, it will be considered harassment and I will have no choice but to file suit. All future communications with me MUST be done in writing and sent to the address noted in this letter by USPS. It would be advisable that you assure that your records are in order before I am forced to take legal action. This is an attempt to correct your records, any information obtained shall be used for that purpose. Best Regards, Your Signature Your Name 1. "This letter is being sent to you in response to a notice sent to me on ___________(the date the consumer received the collection letter)." 1692g of the FDCPA states that a consumer must send a request for validation within 30 days of receiving an initial communication. An initial communication. An initial communication is usually the first debt collection letter which should contain the 30-day validation notice. 15 U.S.C. 1692g(a) of the FDCPA (a) Notice of debt; contentsWithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. Notice that (3) states the consumer must dispute the validity of the debt "within thirty days after receipt of the notice". If you send the your validation letter after 30 days, the debt collector does not have to respond and does not have to validate the debt. Even if you were to send the letter within 30 days, the debt collector could choose to cease collection efforts and not respond. 2. "This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you." That's an unnecessary statement. 1692g of the FDCPA does not differentiate between "verification" and "validation". Again, this is proof that the author of the letter and anyone who recommends the letter has not done one iota of research. 3. In regard to the 8 items requested, only (4) and (5) are required by the FDCPA. Not one court has ruled that the rest of the items are required to validate a debt. Go to the following link and read Myths #4 and #5 which includes court rulings. https://www.creditinfocenter.com/community/topic/328187-fdcpa-debt-validation-myths/ 4. "At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau’s (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws." The above is incredibly ridiculous. "if your offices have reported invalidated information". How can information currently being reported be considered "invalidated" when you haven't requested validation yet? 5. "Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following: Violation of the Fair Credit Reporting Act Violation of the Fair Debt Collection Practices Act Defamation of Character" Debt collectors are allowed to report information to the credit reporting agencies before ever contacting you. Since you haven't yet requested validation, the above is an empty threat. No law requires or court has ruled that a debt collector must notify you before reporting information to credit reporting agencies. In the event you request validation, a debt collector only has to report that the debt is disputed and cannot update the information until the debt is validated. 6. "If your offices are able to provide the proper documentation as requested in the following Declaration, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist." The requirement that you be allowed 30 days to investigate the information is not mentioned anywhere in the FDCPA or in court rulings. As soon as the debt is validated, a debt collector is allowed to continue collection efforts. The debt collector may resume collection activities only when it has obtained verification of the debt, and has mailed a copy of the verification to the consumer." Jacobson v. Healthcare Financial Services, Inc., 516 F.3d 85, 89 (2d Cir. 2008). Section 1692g(b) gives a debt collector "a choice: it either may choose not to verify the debt and abandon its collection efforts, or it may decide to verify the debt and resume the collection activities once the requested validation has been provided. Purnell v. Arrow Fin. Servs., LLC, 303 Fed. Appx. 297, 304 (6th Cir. 2008). 7. If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. As with the rest of the letter, the above is not correct. The FDCPA does not demand that a debt collector validate a debt within 30 days of receiving your request. The 30-day requirement is placed upon consumers to send a validation request after receiving an initial communication from a debt collector. Anyone who recommends sending that letter or anything similar should be avoided because that person has no idea about validation and what is required by the FDCPA. In fact, you should be wary of any advice offered by that person. The failure to research something as basic as the FDCPA could indicate that he has failed to research laws and court rulings that support any advice he provides.
  39. 3 points
    @Harry Seawardwas not playing a "morality card". We do not condone the avoidance of legitimate debts, however most of the people who come to this site cannot afford to settle or pay a debt in full. When we congratulate a poster after he achieves an outcome with which he is satisfied, it's because we're happy that he no longer has to deal with a stressful situation.
  40. 3 points
    You could immediately file an interlocutory appeal. Did the plaintiff sue you for breach of contract? If so, the plaintiff has alleged there is a contract. Even if you denied the existence of a contract, a non-signatory (party who claims they are not part of a contract) can force a signatory (party who claims they a part of a contract) to arbitrate.
  41. 3 points
    Just got back from my hearing. It went relatively well. I must say, spending time in the Law Library helped a bunch as well as taking the entire day yesterday to observe the judge decreased my anxiety levels tremendously. Needless to say, I did a good job pissing off the lawyer. In the hallway, I mentioned the arbitration clause in the agreement and the lawyer stated "I've read the agreement, I know what it says". Then, I tried showing her the MTC and stated "I don't need to see that". The next thing I know, the lawyer tells me she's going to request a continuance and makes a mad dash back into the courtroom. Once I walk back into the courtroom, literally 10-15 seconds after the lawyer walks off, she's already chatting up with the Judge and I overhear her stating I wish to follow the arbitration clause in the cardholder agreement. I decide the best course of action is to stand in the middle of the courtroom and make it clear I want to be apart of this conversation. The Judge then validates my intent, and I make it clear that I wish to proceed with arbitration per the cardholder agreement. Once I tell the Judge that I have a MTC prepared, the Judge proceeds to give me a "deer in headlights" look. It's then that the Judge welcomes me up to the podium to present her with the MTC. The Judge then asks the lawyer if I had shown her the MTC - she reluctantly says yes....I then chime-in stating the lawyer refused to look at it. My guess is that the lawyer wanted to see the case be continued with some dim hope that the MTC wouldn't be mentioned. At this point, I think the Judge realized that. You know what's really funny? After reviewing my MTC, the Judge proceeds to ask the lawyer if she has any arguments specifically towards the MTC. Keep in mind, I just told the Judge she refused to even look at it. Hell, I'm still holding onto her copy while speaking with the Judge. The lawyer's response was golden: "The defendant hasn't applied with JAMS yet and I was just made aware of the intent to arbitrate" - Translated: "I'm well aware of the cardholder agreement we gave to the defendant and it's arbitration clause. At this point, I'm just gonna make stuff up. Additionally, I can't make any arguments against the MTC because I didn't bother looking at it" The Judge then points this out in the cardholder agreement: "If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding." The Judge stated that her take on that was Midland is required to initiate JAMS. The Judge asked again if there was anything else the plaintiff wanted to add....no says the lawyer. It's at this point the Judge turns to me and says she's going to file my MTC and issue a 30 day continuance awaiting Midland to commence the JAMS proceedings. She says I'm free to go and tells the lawyer to wait for the paperwork. It took me a bit to process everything that occurred within that short time....but it eventually clicked. I proceeded to laugh my a$$ off for the next 20 minutes driving home.
  42. 3 points
    This seems like a pretty blatant disregard of A.R.S. §12-1502(D ): "Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay." I would absolutely appeal this. You only have 14 days to provide your notice of appeal. There is a $75 appeal fee payable to the Justice Court when you file your notice of appeal. You can request a waiver or deferral of this fee when you file your notice of appeal. When I did mine, I had to wait around an hour or so for the judge to rule on my waiver application. There are two additional bonds that you pay to the Justice Court at the time of your appeal notice. One is cost bond to cover the appellee's (Portfolio, in this case) legal fees on appeal. You can request a waiver of the cost bond. Portfolio almost certainly has a 'flat fee' agreement with their attorney, meaning it will cost them nothing to respond to your appeal. For this reason, most of the time JDBs don't even make an objection to the cost bond waiver application. The other bond is a supersedeas bond. This is an optional bond equal to the amount of the judgment to prevent Portfolio from moving ahead with collection of the judgment. You are not required to put up this bond, however Portfolio could move ahead with garnishment/levy proceedings if you don't. The last fee is payable to the Superior Court when they accept your appeal. I think it took 2 or 3 weeks for them to send me the notice for this fee and then I had another week or so to get down there and pay it. I asked for a waiver of this fee. The clerk told me he could grant me a payment plan for the full amount on the spot, or I could wait to see a judge if I still wanted the waiver. I took the payment plan. IIRC, it was $50 that day and $100/month for 3 months. Something like that. I journaled my appeal here. My first post contains links to the resources I used: https://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/
  43. 3 points
    I hope I am submitting this where it needs to be. This is an update on my case. HAHAHAHAHAHAH!!!!!!!!!!!! I was granted my arbitration. This forum is amazing, everything I learned I learned from here I thank you all. This is what happened, I filed my answer, with my counter claim. When I went to file my answer I was told I didn't need to do all of this they have a one page document to answer a summons. I told the lady yes I know, but if I do that I might void any opportunity to present other arguments to a judge later. When I filed my motion I was told I did not do it correctly but every where I went someone helped me. The judge scratched out my wording and told me what to write to ensure my motion was proper. I received a 4-4-2018 court date which was today. While I waited for the court date I received a letter from the plaintiff stating I failed to respond and I am now in default. It took me by surprise but I quickly realized they wanted me to call to make a settlement. I never called, I also received a stack of bills with a letter stating my motion has been denied because I requested the motion based off the fact that they did not provide any supporting documents. I ignored it, my motion was based off the agreement and I found out if it didn't go through the court it didn't happen the judge told me that. That letter also encouraged me to call and work out a settlement. Today I walked into the court room and my stomach started to turn I was so scared. I had my notes and started to study them like I was in school to be prepared for anything they might throw my way. They did the calendar call and It seemed like everyone paired up, attorneys found the defendants and started having conversation. The plaintiff in my case never even turned around so I knew he didn't know who I was, he just knew I was there. I just sat and waited when they called me I dropped everything my umbrella, phone, bag, my papers. The whole court room had eyes on me, I said pretty loud "It was a frog on my lap", it took a few seconds and everyone just started laughing even the judge. Why did I say that no clue when I am nervous I make jokes. I am now in front of the judge she starts to look through what I submitted and asked where is my attorney. I said I am representing myself she said o yes I see wait you did this, I proudly said yes I did. She had a smile an nodded like good. She turned to the plaintiffs attorney and asked what do you have. He started by saying we had some trouble with this because the agreement says that there is no litigation in arbitration. I sternly said that is absolutely incorrect. The judge said it does not matter if it is true or not you did not answer the motion so the motion is granted and this case is dismissed with prejudice. The attorney never even looked at me, never made eye contact. I got my docs with a big smile on my face thanked everyone and walked out. On my way out to did stop to speak with one of the legal aid attorneys. I broke down what happened he asked why did I file for arbitration I said I did some research and felt it was my best option. He said you could lose in arbitration I said it is not worth it for them my debt is not that high they have to pay, he seemed indifferent.It seems his strategy is to force them into a trial by dragging things out, I think that could work for larger debt. At least I know where I can go to get legal help, he is there every Thursday. His advise now is to just do nothing, he said it is on them to move forward. Any advise on this advise. Again, I want to thank you all for your help. I am going to have that drink now!!!!!!!
  44. 3 points
    G&C took the coward's way out. They didn't even send you a notice of the dismissal. This means you must have made them angry lol Because Magistrate Court is literally like the wild west of courts and the rules actually state that the judge's are allowed to make up their own rules, I would just take the win and let it go. There is likely no chance to change this to a "with prejudice" dismissal and if you attempt to push the arbitration case, while very highly unlikely, the JDB COULD accept the case and still counter claim for the debt amount in the arbitration case. Take the W and celebrate. There is very little chance they will try to sue you again for this. Nice work!
  45. 3 points
    Case closed!!!! The judge signed the order of nonsuit.
  46. 3 points
    Yes. Since settlement discussion aren't admissible, you can be frank with them that their opposition to arbitration doesn't hold water and you hold the legal "higher ground." Offer a mutual walk-away in the interest of saving everyone time and money. I'd probably get cheeky and say "just think how much more time you can devote to default judgments!"
  47. 3 points
    Here's a law article on waiver of right to arbitration in Texas. http://www.cooperscully.com/uploads/seminars/Sohlman-PerryHomes.pdf IV. CONCLUSION The Texas Supreme Court’s decision in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2007). and subsequent Texas case law demonstrate that a finding of waiver of arbitration will be a rare event. The presumption against finding waiver of arbitration remains strong. For implied waiver of arbitration, a challenger must show that a party substantially invoked the litigation process as opposed to taking steps to avoid litigation, promoting settlement, or undertaking discovery that would also be allowed in arbitration. If any of these other explanations are available, the factors will likely tip more in favor of finding a party did not substantially invoke the litigation process. # # # B. Establishing Waiver of Arbitration In order to establish an implied waiver of arbitration, a party asserting the defense must show that the party seeking to compel arbitration substantially invoked the judicial process to the challenger’s detriment or prejudice. Id. at 589- 590. In deciding if the judicial process has been substantially invoked, courts must examine waiver of arbitration on a case-by-case basis and look at the totality-of-the-circumstances. Id. at 591. Substantially invoking the judicial process is not enough by itself to establish waiver of arbitration. A challenger must also show that it has suffered prejudice as a result. Id. at 593- 594. The question with waiver of arbitration “is not so much when waiver occurs as when a party can no longer take it back.” Id. at 595. The case for waiver must be strong as there is a strong presumption against waiver of arbitration, creating a difficult burden for the challenger. See id. at 590. The Texas Supreme Court looked at factors that federal courts utilize in applying a totality-of-the-circumstances test on a case-by-case basis. The factors include: Whether the movant was plaintiff (who chose to file in court) or defendant (who merely responded); How long the movant delayed before seeking arbitration; Whether the movant knew of the arbitration clause all along; How much pretrial activity related to the merits rather than arbitrability or jurisdiction; How much time and expense has been incurred in litigation; Whether the movant sought or opposed arbitration earlier in the case; Whether the movant filed affirmative claims or dispositive motions; What discovery would be unavailable in arbitration; Whether activity in court would be duplicated in arbitration; and Whether the case was to be tried. Id. at 591 (citations omitted). 2. Is a Showing of Prejudice Required? Waiver of arbitration will not be found based solely on substantial invocation of the judicial process; the challenger must also have suffered prejudice as a result of the opposing party’s actions. Prior to Perry Homes, the Texas Supreme Court found that prejudice was a requirement of waiver of arbitration in at least eight cases. Id. at 593-594. Likewise, federal courts also favor requiring a finding of prejudice. Ten of the twelve regional circuit courts require a showing of prejudice, and the remaining two consider it a factor. Id. at 594. The Court decided to adopt the prejudice requirement as the second part of the test for waiver in Perry Homes. Id. at 595. The Court explained what type of prejudice must result from the opposing party’s substantial invocation of the judicial process. Under the Federal Arbitration Act, prejudice relates to inherent unfairness in a party taking advantage of the litigation process and then shifting to the arbitration process for its own advantage. The unfairness applies in terms of delay, expense or damage to the challenger’s position when a party forces the challenger to litigate issues and then seeks arbitration on the same issues. Id. at 597.
  48. 3 points
    Not sure if you're aware, but everything that you send to the JDB needs to be certified mail with return receipt. They can be pretty sneaky and claim that they never received it!
  49. 3 points
    All I can say is "DO NOT PANIC" if you are sued by these junk debt collectors. Read your paperwork closely, and if you have no idea what to do....start reading LINDA7 's post on the step by step arbitration process. At first it is confusing (or at least it was for me) but I just kept rereading it until I understood. Within a few days I sent out my pro sec notice of appearance, answer to complaint/affirmative defenses (these went to both Plaintiff's attorney and the courthouse) the Plaintiff's attorney also received a notice of arbitration elections letter (all sent certified mail) and the courthouse received a motion to compel private/contractual arbitration letter with a copy of my CC contract. I waited several days before filing my JAMS Demand for Arbitration applications. All court cases were dismissed except one several days before the pre hearing date, the last one, the attorney decided to be a no show/ no call, therefore since I was at the court, the judge dismissed it. If anyone needs any help let me know, maybe I be of some help, however there are so many more experienced people on this forum. WHATEVER YOU DO...DON"T DO NOTHING AND IGNORE....default judgement automatically.
  50. 3 points
    @MikeB35 We've all walked in your shoes. The initial panic that swamps you when first sued is hard to get under control. I would add to the great advice above to familiarize yourself with your state's civil rules of procedure and any local court rules, especially your specific judge's rules. Know your deadline; don't act before you have to unless you are executing according to a strategy. You might also show your appreciation for your gem of a court clerk by dropping off some premium donuts, bagels or a flowering plant--if your court doesn't prohibit such a thing, of course.