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

  1. 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!
  2. 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
  3. 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.
  4. 5 points
  5. 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!
  6. 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.
  7. 3 points
    So a few years ago I got into some financial trouble. I found this site, and it helped me immensely. I won 3 court cases, I sued Gold's Gym for collection violations, and I have been cleaning up my credit. I was at an all time low of 430. I protested every negative on all 3 credit reports. some things were removed, some were not. Some I had to wait until they dropped off after 7 years. But, last week I decided to refinance my house. I thought my score was pretty good now, so thought I'd get a decent % rate. eh, todays market, it was 4.2, but still better than the 5.6 I've been stuck with for 10 years. My credit score came back at 840! Pretty much cart blanch if your trying to get credit. I do have a couple of credit cards, with like 15k limits, but I won't go down that road again. If I have a major purchase I won't use it unless I have a plan to pay it off in a month or 2. I carry a low balance on my main card so it reflects well with payments, etc without getting socked for huge interest. Just wanted to revisit, and let others know this site is a wealth of info if your willing to invest the time. Thanks to all those that contribute! Oh my new house payment is 350.00 less per month, and will be paid off 2 years earlier. So even though I didn't get the low rates of a few years ago, it was still worth it.
  8. 3 points
    I'm not advocating one position or another. I think both have merit. I just want to put out as much information as possible so that Shelly can make an informed decision about which path to take. One thing that is certain, the decision does not need to be made at this very moment.
  9. 3 points
    Alright! Who wants to hear about my day in court? DISMISSED WITHOUT PREJUDICE Ok, I realize there may be some pitfalls in that PRA could re-open my case. But, do they/would they do that? I ain't gloating. The lead up was stressful, I was flailing and there were some things I could've done better. See my original post. A recap of the past two weeks: My last hearing was to set a trial date of Feb 8. The judge handed us both an Advance Trial Review Order. ( Look it up for California to see samples of it.) I was confused by the document. It basically was an inventory of case evidence and witness. The contract attorney for the plaintiff filed it with nothing listed. (Suspicious: No evidence? No Witnesses?) I did the same. I was late to send out my Discovery/ Demand for Documents to the Plaintiff. This was a mistake. The deadline is tricky. I understood it to be 30 days before trial. But it closes 30 days before trial. I feel I still don't completely understand the deadline, but I now at least know to get it done early, at latest 65 days before trial. That being said- it would have been understandable and permissive for the Plaintiff to just ignore my discovery requests. However, they ended up replying the day before the trial with a point by point refusal of each of my discovery demands per my violation for CCP 2024.020(a) So, why even bother sending me that? Did they have to? Or, were they trying to psyche me out? Anyway... TRIAL DAY! I wake up early, keep a positive attitude, go the gym, "Mama Said Knock You Out" on repeat! Get to the court house early. Breathing deep. Courtroom doors open at 9:00 am sharp. Friday trial call. Everybody signing in. All kinds of people and civil matters stacking the day's schedule. Contract lawyer for the Plaintiff strides in, calls me out while he signs in and announces "I'm going to dismiss your case" . We wait for the judge to call us into the octagon to make it official. And that's it! 5 minutes. So, what happened here? Am I lucky? Did I simply answer and show up? Did I use the Magic Words? Well, like I said- no gloating here. I got TWO MORE of these things on deck.
  10. 3 points
    That's great that you are starting to kind of understand everything now. Its a journey, but its a journey only you can benefit from. Your hard work and understanding, will only make you a more versatile person. When you go for that first initial meeting with the lawyer you will not be jaded thinking you have to roll over just because you are in the court system. You are now armed with knowledge, Be vigilant in your study's, and double check everything. Like i stated before, you are representing yourself so everything you do reflects you. When this is all said and done you will be extremely proud of what you have accomplished. I promise you!
  11. 3 points
    UPDATE: Fantastic news!! I have received a letter from Midland's attorneys offering to dismiss without prejudice!!!! I am beyond elated!!!! I have attached their Stipulation to Dismiss here. They also included a letter (just basically saying if you agree, please sign and date and send back to them) along with a proposed order. Ideally, I would like my $250 back and a dismissal with prejudice.. but I will certainly accept a dismissal without prejudice if it means I would only recover my $250. What do you guys recommend? Thank you so much everyone!!!! This place has been a godsend, I have no idea what I would have done without the wonderful, selfless people on this forum. Especially @fisthardcheese @Brotherskeeper
  12. 3 points
  13. 2 points
    This was such a great idea. Looking occupied likely made you seem much more prepared. Congratulations on your victory!
  14. 2 points
    @Vinsey I noticed you're being sued on a sworn account cause of action. Here's creditor lawyer's article on TN sworn account, followed by a blurb from a legal self-help booklet: SWORN ACCOUNTS UNDER TENNESSEE LAW: WHY, WHEN, AND HOW? "Sometimes, a creditor’s lawyer will file an action against a borrower as a “sworn account.” These are basically lawsuits on steroids, but they aren’t as common as you’d expect. This device is allowed by Tenn. Code Ann. § 24-5-107, titled “Sworn accounts; denials,” which states that an action that is filed “with the affidavit of the plaintiff or its agent to its correctness…is conclusive against the party sought to be charged, unless that party on oath denies the account…” There’s an exception under § 24-5-107(b), that allows a court to accept an oral denial of the sworn account. The reason behind sworn accounts is to make the debt collection process easier, especially on debts where there is no dispute. It shifts the burden of denial to the defending party. Some courts treat these like a “procedural trap;” faced with a properly authenticated and sworn account, the defendant who doesn’t present a proper sworn response will automatically lose. One Court has said: “[t]he statute is quite clear that in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.” But, when a sworn denial is filed, the burden shifts back to the plaintiff to support his claims with actual evidence at the trial, i.e. the sworn account becomes a moot point. So, when and why would you proceed on a sworn account? Primarily, I file them when I’m before courts that don’t have a “free continuance” Local Rule, like Davidson County. That way, if I show up and have my witness with me at court, I’ve got some proof of my claims with a sworn account. Some lawyers file them hoping to set the procedural trap, hoping the other side will neglect to file a “Sworn” Answer, but that seems sneaky (but, it’s supported by the caselaw). Other than the extra step involved (preparing and filing an Affidavit), there’s not any downside to proceeding with a Sworn Account." SWORN ACCOUNTS AND OTHER DEBTS "An account may involve a credit card debt or virtually any other type of debt. Legal proceedings typically involve “sworn accounts” where the creditor uses an affidavit to prove the debt and not testimony in person. Suits based on sworn accounts are governed by Tenn. Code Ann. § 24-5-107. See also Tenn. Code Ann. § 24-5-104. The only effective response to a sworn account is a sworn denial, that is, a written denial executed under oath and filed with the court. Any other response (an unsworn answer, even an appearance by the defendant without a written answer) must be ignored by the court and will result in automatic judgment for the plaintiff. Once a sworn response has been filed, or if no affidavit is filed by the creditor, the burden is upon the creditor to prove the debt, usually by testimony in person."
  15. 2 points
    @Vinsey I was able to find the 4/2016 Barclays agreement in the Archived Q1-2016 file. The affidavit claims "...there was due and payable from VINSEY S. ("Debtor and Co-Debtor") to the Account Seller the sum of $2,948.88 with the respect to account number ending in 7968 as of the date of 3/30/2016..." https://www.consumerfinance.gov/credit-cards/agreements/ Archived Q1-2016 agreements https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2016_Q1.zip Archived January 2016 agreements https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2015_Q4.zip
  16. 2 points
    For the same reasons that no politician was ever elected because they are soft on crime; no politician ever got elected because they were a champion for the consumer debtor. Those constituents just do not have powerful lobbies. Every once a while a local news station will run a story about how some poor consumer is getting wrongly worked over by a state toll company or a collector for a municipal debt; that gets that persons situation righted and a promise that such conduct will not happen in the future, but usually those are just illusory promises.
  17. 2 points
    Went to court on Monday and it was Dismissed Without Prejudice. So I assume it will be coming back around again sometime but glad it is over for now. I went to the courthouse and the Opposing Attorney, of course not the same lawyer on all the documents, arrived and tried to get me to settle. Slight discount at a lump sum or full amount over time. I told him no, we are going to trial and he left me along while we waited. I pretended to read my notes and wrote down a few things so he wouldn't try to talk to me again. I like to think I scared him by looking all prepared. LOL We went into the court room and he stated they were dismissing the case without prejudice and that was that. Thanks for all the help, there is a lot of really good information in this thread!
  18. 2 points
    Excellent. It sure is peculiar how the naysayers are as far away as they can get every time someone wins in court but when you say you want to fight a JDB in court all you hear is, "Those outdated tricks don't work anymore" "These days they demand all the documentation they need from the OC and all states have adapted to the 'adoptive records doctrine' "or "You can no longer win if arbitration isn't an option and everyone in the courtroom knows you owe the money so you should just work out a settlement."
  19. 2 points
    Very well said! I would only add to remember that this is a business deal. Yes, it is personal to you, but it is not personal to anyone else (not the court, the judge, the attorney or the clerks). Come at this as a business deal. When talking to the attorney in court, keep it calm and collected and professional. Let him know that you understand he is just doing a job for his client and that he isn't trying to personally stick it to you (or vice versa). Once you file your MTC, depending on your local court's rules, they MAY not be able to non-suit or drop the case without your agreement. But for sure once the MTC is granted, that will hold true. So, if you work this with the goal of just getting that MTC granted by the judge, you will do well. Also remember that once you file an MTC, everything about the account and alleged debt becomes completely irrelevant. You are flipping a switch that puts the debt conversation on hold and changes it to a question of whether arbitration is proper or not. The ONLY question that should be decided by the court after your MTC is filed is whether or not there is a valid arbitration agreement between the parties. If the court finds that there is, they have no choice but to order arbitration. Many times the attorney will attempt to cloud this issue by continuing to bring up the debt with your and with the court, but all you should do is object to that and gently steer the conversation back to arbitration.
  20. 2 points
    @fisthardcheese @Around The Fur Arkel Constructors v. Duplantier & Meric, 965 So. 2d 455 - La: Court of Appeals, 1st Circuit 2007 "Cases decided prior to the aforementioned amendment to LSA-C.C.P. art. 2083 consistently held that rulings denying a motion to compel arbitration were immediately appealable. In Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, our supreme court held that an order compellingarbitration was not appealable. However, the court specifically noted in that opinion that Section 16 of the Federal Arbitration Act directs that orders denying arbitration would be immediately appealable. The supreme court reiterated that holding in Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 5 n. 5 (La.6/29/05), 908 So.2d 1, 6 n. 5: "A judgment denying a request for arbitration has been held to be an appealable, interlocutory order." (Emphasis added.) See also Shroyer v. Foster, 01-0385, p. 3 n. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 86 n. 4, citing Collins, 99-1423 at p. 8, 752 So.2d at 830, and Stadtlander v. Ryan's Family Steakhouses, Inc.,34,384, pp. 2-3 (La.App. 2nd Cir.4/4/01), 794 So.2d 881, 884-885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790. These cases were based on the implicit reasoning that to deny an immediate appeal of a motion denying arbitration would cause irreparable harm to the party asserting its contractual right to arbitration. With the omission of this language 459*459 in the amended version of LSA-C.C.P. art.2083, an immediate appeal of an interlocutory ruling must be specifically provided by law. In the absence of legislation expressly authorizing an appeal of an interlocutory judgment, a party must now seek review under the appellate court's supervisory jurisdiction. LSA-C.C.P. art. 2083, Comments-2005 (a)(b)." In a decision rendered by this court after the effective date of the amendment to LSA-C.C.P. art.2083, we again reiterated and applied the holding in Aguillard, that a judgment denying a request for arbitration is an appealable, interlocutory order, without any mention of the amendment to LSA-C.C.P. art. 2083. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197, p. 4 n. 1 (La.App. 1st Cir.2/10/06), 928 So.2d 594, 596 n. 1. In our most recent decision concerning an appeal of the denial of a motion to compel arbitration, this court merely addressed the merits of the issues before it, without mentioning the interlocutory nature of the judgment before it, nor addressing the issue of appealability. Lafleur v. The Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La. App. 1st Cir.3/23/07), 960 So.2d 105. However, in Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025, p. 10 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674, we held that Act 205, which amended LSA-C.C.P. art. 2083, was procedural and should be applied retroactively. It appears clear that the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence. Aguillard v. Auction Management Corp., 908 So. 2d 1 - La: Supreme Court 2005 "Motion to Stay Pending Arbitration "According to [La.Rev.Stat. § 9:]4202, a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration." International River Center v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141. In this case, unquestionably a written arbitration agreement does exist, and because the issue in this case arises from and is related to the Auction Terms & Conditions and its breach, the issue is referable to arbitration. Moreover, the record establishes the defendants are not in default in proceeding with arbitration.[16] Therefore, we reverse the court of appeal and stay the present district court proceedings pending arbitration in accordance with Section 4202."
  21. 2 points
    @Vinsey You need to read both the Tennessee rules of civil procedure and the local court rules. The last link is to a court-approved sworn denial fill-in form. Please take your time to understand what you are required to do under the rules and the deadlines that govern your actions. If you plan to file a motion to compel arbitration, your rules may require you to state an agreement to arbitrate as an affirmative defense in your answer to the complaint. http://justiceforalltn.com/content/pro-se-guide https://www.tncourts.gov/court-rules/218 http://www.tncourts.gov/courts/court-rules2/local-rules-practice http://justiceforalltn.org/sites/default/files/FINAL - Sworn Denial_0.pdf
  22. 2 points
    From everything I've read, do NOT file with AAA until you are granted the MTC, otherwise it makes a mess of things.
  23. 2 points
    I agree that the one in the OP’s last post would have to be the complaint because it demands a judgment.
  24. 2 points
    Just use the Synchrony Care Care. Include an affidavit that says you believe this to be the agreement governing the account. If they want to fight that, then let them provide a different version - they will all have same arb clause. You need to get your MTC filed ASAP. Find you local statutes / rules of civil procedure to site the rule that says arbitration is preferred method of dispute resolution. Most state's model Federal guidelines. At that point you either win or appeal the judge's mistake.
  25. 2 points
    Trial in 2 weeks? If that's the case, you need to hustle. Fortunately, people have beat JDBs with less time on the clock. Sounds like you did not send them a CCP 96 Request for all evidence & witnesses they plan to introduce at trial, correct? Did they send you a CCP 98 Statement (Affidavit/Declaration in Lieu of Testimony)? I doubt they'll respond to/accept the offer you made. They want more than 10%. They always send a contract lawyer to make appearances for them; technically, because they hire them to make the appearance, they are their lawyer. What does the Advance Trial Review Order say?
  26. 2 points
    A toothless law, though. The IRS has really no interest (nor man-hours) to track down all of the JDBs who "forget" to send 1099s to consumers and enforce the measly $500 fine for it. You could TRY to arbitrate for those damages, but 1) the JDB will ignore it and force you to file a PTC in federal court to force them into the arbitration at the going $450 federal court filing fee (plus the time of typing up and filing the petition). and 2) as @BV80 pointed out, the IRS rules state that it is your responsibility to report the amount even if you don't get a 1099, so technically you would be culpable for your own damages, and while just forcing it to arbitration can get a settlement due to those arb fees involved, I doubt you would get a settlement amount worth all of the time and up front expense of federal court PTC and hearings to make it worth anything. In my particular case it was a 1099-MISC for a small payout to me from Midland. This was many years ago now, and because I was still learning, I was under the assumption that under $600 did not need to be reported as income and since I never got my 1099 I assumed this was correct. In my case, Midland sent the 1099 to the IRS for the full amount THEY paid, which included my attorney's fees and costs. While it was still a rather low amount, when I got the tax bill a few years later, I was able to amend my return to deduct the attorney fees and costs and only pay the small tax amount on the money I actually pocketed. Since that time, on two other tax years, I had settled account not send me a 1099, but I still self-reported that amount on my returns and marked them as "no 1099 was sent". This avoided a later hassle and bill. To me, this is another good reason to get a proper settlement contract that states you are not liable any further for this debt. Usually a normal settlement would state that neither party admits fault, but that this settlement constitutes an agreement to end the dispute in the interest of further time and expense. In other words, your $500 payment would be an agreement to end the dispute because otherwise the costs alone could be more, but does not mean you owe any debt. Of all the accounts or lawsuits I have settled in this manor, no 1099 was issued and I did not claim any income from debt forgiveness and it was never an issue. HOWEVER, if your total is $2000 and you pay $500 of it and then they issue a 1099-C on the remaining amount, claiming another $1500 on your tax return as income next year will likely have a very minor effect on your over all tax return. It is not a large amount in the scope of things, especially if you have other income and paid taxes through the year from a job.
  27. 2 points
    Discover is the original creditor. Defaulted debt is sold and often resold to debt buyers who may be disinterested in safeguarding their "reputations." You are voluntarily entering into a legally binding settlement agreement with "junk debt buyer" Cavalry that includes the negotiated rights and duties of each party. Your rights are best protected in clear writing within the "four corners" of this agreement.
  28. 2 points
    Considering the entire industry will cease to exist by the time the updated agreements work their way down to JDBs, you're essentially suggesting option #2. Edit: Some OCs have excluded small claims courts, and some even say they won't force consumers to arbitrate the OCs claims, so they clearly have had plenty of opportunity to amend their arb provisions. I have to believe the arb provisions in their current form are overall more beneficial to the OCs, or the OCs have a good reason to believe courts would start tossing the arb provisions as unfairly weighted adhesion contracts if they were even more creditor-friendly than they already are.
  29. 2 points
    The answer only needs to deny everything they listed in their complaint and then list an affirmative defense of Lack of Subject matter jurisdiction due to a valid arbitration clause. The rest of the details including what the card agreement states about arbitration should be saved for your motion to compel arbitration.
  30. 2 points
    The advantage is that you are less likely to make a mistake and you have more time to continue reading as much as you can to learn more about this and to gather more information. You either use the court OR you use arbitration. You can not do both or you will shoot yourself in the foot. Damages are irrelevant. If you ask the court to adjudicate any counter claim, then you are availing yourself to the court and the court will deny your request for arbitration based on the fact you willingly accepted the court's jurisdiction to hear your case. Since that is all your doing, why would you need anything else? The opposite as above applies. If you are using arbitration, you are stating that the court has NO authority over this case, so there is nothing the court needs to decide on OTHER than "is there a valid arbitration agreement between the parties". When they determine that there is, then that remove the case from the court's hands and they must order the case to arbitration.
  31. 2 points
    Excellent. Starting the year off great with the second positive outcome report in Texas so far in 2019 and it is only 12 days in! Edit: Original thread- https://www.creditinfocenter.com/community/topic/329496-being-sued-by-midland-funding-llc-in-texas/
  32. 2 points
    @RyanEX Thank you so much for responding to our new poster! If any of us non-CA posters can help, please let us know.
  33. 2 points
    In light of the events that have transpired in your case, and the fact that you have done nothing to keep the arbitration ball in play , I doubt an appellate court would agree that they violated the agreement if they were to return to court in order to collect this debt.
  34. 2 points
    That doesn’t say AAA will refuse to accept new filings filed by the consumer.
  35. 2 points
    ALRIGHTY.... and here's the update. So after I bungled it up by Motioning to Dismiss without Prejudice before everything, I went and found a lawyer. I figured I was in over my head when I got their response to my motion in the mail and they were hammering the "Accounts Stated" argument. I also have zero idea how to properly cite the cases I wanted to cite. (After I turned my case over to a lawyer and went hands-off, I found a guide by Loyola university on how to cite case law, and a guide for Pro Se case citing.) Since I'm broker than a joker, I went with a lawyer from legal aid. I gotta admit, I wasn't optimistic at this point. I have always believed that legal aid is where incompetent lawyers go to practice when they cant practice anywhere else. I went in there with zero positivity and after laying everything out, I had just a few questions. 1. If I lose, can I discharge the judgement in bankruptcy (Yes, in many cases.) 2. What is the time limit, if any, to strike the affidavit (I don't remember the answer to this, but it wasn't an issue). 3. By Motioning to Dismiss without Prejudice before I filed the Answer and the Appearance (Which I perceived was the rules of my court), did I inadvertently waive my right to arbitrate? (Depends, but yes, it does appear that I did.) So I was served in April, hearing in May. At the Hearing, the lawyer from the other side was annoyed and said they needed more time to answer my Motion, because I answered each item and had nearly twenty affirmative defenses. She was not happy with me! She was polite but her hands were shaking the whole time and she seemed very annoyed. Judge continued to 60 days later. A week later I got a letter in the mail answering my first affirmative defense and ignoring everything else. I was SO disappointed! This is the point where I went to legal aid. Legal aid is kinda on the edge of the shady part of town. I was super intimidated but determined to get help. I have hired lawyers before, when I wasn't broke, and I'm accustomed to the experience (when it comes to family law in particular.) Legal Aid was no different, maybe a little friendlier. The Lawyer took my case and we went to the second hearing just a few days later. Judge continued to Autumn. I was not at that hearing. My lawyer withdrew my motion and requested a trial date. Cavalry retained a local yokel lawyer whose specialty is collections. I spoke to a doctor about drugs for anxiety. Ha! This whole time Cavalry kept throwing it to different lawyers. The day of the trial, Cavalry's local yokel filed a Motion to Dismiss without Prejudice in our online system. (Idiots! We could have avoided all this from the get go...) My lawyer objected (improper filing - My Lawyer didn't get a copy in time) and moved to go to trial, now. The Judge asked if there were any witnesses (or prospects of a witness, ever) and Cavalry's lawyer said he had no idea. My lawyer moved to dismiss with prejudice. Granted. ***In less than 10 minutes, this thing that ate up my year was over... forever. *** The crazy thing is that while this was very personal to me, it was just business to Cavalry and that if you are very careful, and don't mangle it (follow the advice in this forum, carefully), you can absolutely do all this yourself. (I'm glad I got a lawyer though, mine were awesome.)
  36. 2 points
    Most attorneys still don't understand the special Consumer Rules in AAA and JAMS and are not geared to fight cases based on a cost analysis rather than merit based. You have to just break it down into smaller steps and not try to take everything in all at one time. 1. Respond to the lawsuit. At minimum you need to file an answer that denies all of their allegations. Within that answer, you have a second section called "affirmative defenses" where you state that the court has no subject matter jurisdiction due to an arbitration clause in the underlying contract. 2. File the motion to compel arbitration. This MTC is just a motion that asks the court to stay the case (put it on hold) and require the parties (you and Synchrony) to arbitrate the case instead of hearing it in court. 3. Show up at any potential hearing in order to get the judge to grant your MTC. 4. File the JAMS arbitration paperwork to start the arbitration case
  37. 2 points
    Anything you do out of your comfort zone is overwhelming. Im sure about 80-90% of the people giving advise have had to start in the same position you are in currently. These guys and gals are knowledgeable in many cases that have gone through these forums over the years, let alone had to deal with their own. Please I urge you to take time out of your day to read and understand your options. Dont make hasty decisions, ask questions here and Im sure you could find your answers. Goog luck sir, knowledge is power!
  38. 2 points
    She sure is, unless your cardmember agreement has different language than the standard Synchrony Bank JCPenney Account Agreement. See #1-2 below. It states if you or they make a demand for arbitration, it must be arbitrated; they won't require you to arbitrate a small claims case. RESOLVING A DISPUTE WITH ARBITRATION "PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US, AND/OR J. C. PENNEY CORPORATION, INC., WILL BE SUBJECT TO INDIVIDUAL ARBITRATION AS SET FORTH BELOW. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. • What claims are subject to arbitration 1. If you, we, or J. C. Penney Corporation, Inc. make a demand for arbitration, you, we and/or J. C. Penney Corporation, Inc. must arbitrate any dispute or claim, including, but not limited to, statutory, common law, and equitable claims, between you or any other user of your account, and us, our affiliates, agents and/or J. C. Penney Corporation, Inc. that relates to your account, including, but not limited to, any dispute or claim involving any purchase or credit made with or to, or otherwise involving your account, except as noted below. The parties intend for J. C. Penney Corporation, Inc. to be a third-party beneficiary of this Arbitration section of this Agreement. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."
  39. 2 points
    That's amazing! You joined the board less than 24 hours ago. You get the prize for fastest dismissal offer. I'm with BV on this one. I've never known them to refile, and if they ever did, you could come back at them again with arbitration. I say take the offer and enjoy your holidays.
  40. 2 points
    Thanks for the tag BV. The most important thing you want to do is answer the complaint, so there is no default judgment entered against you. If you have the means to hire an attorney, I can recommend a couple in the Long Island area. I can also recommend an attorney who provides limited scope services (meaning he will draft an answer on your behalf, but you would represent yourself -- a much cheaper option than full representation). If they mailed the summons and complaint to your door, you would want to check the affidavit for what is called "due diligence" under CPLR 308(4). If due diligence is lacking, then you can make a motion to dismiss the complaint.
  41. 2 points
    1681s-2(a)(5) 5) Duty to provide notice of delinquency of accounts (A) In general A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action. There is no private right of action under 1681s-2(a), however, we do have a private right of action under 1681s-2(b). b) Duties of furnishers of information upon notice of dispute (1) In general After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall- “When a furnisher provides information to a CRA regarding an account placed for collection or charged to profit or loss, the furnisher then has 90 days in which to notify the CRA of the account's ‘date of delinquency,’ which is defined as "the month and year of the commencement of the delinquency on the account that immediately preceded the action." Id. § 1681s-2(a)(5)(A). The date of delinquency enables the CRA to calculate the seven-year window for ‘aging-off’purposes — without it, the CRA would be unable to determine when the account had been placed for collection, rendering the ‘aging-off’ date impossible to calculate.” Seamans v. Temple Univ., 744 F.3d 853, 860 (3d Cir. 2014). “We conclude that furnishers of consumer credit data remain obligated to report fully and accurately under FCRA regarding the collection history and date of delinquency for even an HEA-qualifying education loan.” Seamans, 744 F.3d at 863.
  42. 2 points
  43. 2 points
  44. 2 points
    Send the attorney an email stating that you are willing to withdraw your claims in Arbitration in exchange for a full release. Give them an expiration of this settlement offer being the same date the JAMS payment is due. They may ignore it. They may actually agree to the settlement. Who knows. It costs and hurts nothing to try. A signed release of liability is as good as a dismissal with prejudice. If they ignore it, then let the JAMS case get closed for non payment and be done with it.
  45. 2 points
    I’ll offer some opinions on that seriously flawed article later on. However, I’ll offer this much right now. That article is full of so many inaccuracies and misrepresentations that it makes me madder than a mosquito in a mannequin factory.
  46. 2 points
    There's also the matters of substantive vs. procedural and whether your state applies the Restatement of Laws in settling contract disputes. Complicated argument indeed.
  47. 2 points
    Sounds like you were served and did not answer the lawsuit. Which is not good. Can you check the status of the court case online, with the court?
  48. 2 points
  49. 2 points
    😁 I am so indebted to this board and all the excellent advice I've received, because everything has been working almost exactly as everyone has said. I've made some mistakes here and there, but am feeling so much more informed than before. THANK YOU!! Once again, I'll see this through and see what happens and update (hopefully for a last time). Maybe this will help anyone else going through the same process as me!
  50. 2 points
    I will gladly use this method of attacking the assignment and affidavit as soon as I am in ARBITRATION. I would never use this argument in a court today, as it is a one-way ticket to a judgement plus costs and interest.