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Showing content with the highest reputation since 12/07/2018 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. 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!
  5. 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.
  6. 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.
  7. 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.
  8. 3 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."
  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. 2 points
    Please see this thread from a poster in Ohio. I have included a step by step outline of what needs to be done, and when.
  12. 2 points
    This was such a great idea. Looking occupied likely made you seem much more prepared. Congratulations on your victory!
  13. 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."
  14. 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
  15. 2 points
  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
    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.
  19. 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."
  20. 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
  21. 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.
  22. 2 points
    I agree that the one in the OP’s last post would have to be the complaint because it demands a judgment.
  23. 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.
  24. 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?
  25. 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.
  26. 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.
  27. 2 points
    This is California specific and most people on this board already know that California is very consumer friendly compared to the rest of the nation so it is not surprising that something that would fly in California would not fly in other states.
  28. 2 points
    Update - case dismissed w/o prejudice today. Plaintiff never responded.
  29. 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.
  30. 1 point
    @texasrocker Do you think it would help if @misbhavn drafted an affidavit to state that copies of the answer, the motion and proposed order were in fact sent to plaintiff via the attorney by whatever method it was sent, on the date it was sent, but that the attached true copy of the certificate of service was omitted in error when the papers were filed with the court? The defect was not that the plaintiff was not timely sent its copies, but that the proof of that service was not filed with the court.
  31. 1 point
    I would not have a clue on this one. You might be able to file a motion to reconsider and supply the certificate of service/ I am sure if the plaintiff made that error, the would be allowed to correct it. Beyond that, the other 2 might have a better idea.
  32. 1 point
    I already have another question. The Credit Card Agreement I have was sent to me by the Plaintiff. I have attached it and wonder if anyone can explain what I have highlighted in yellow about Small Claims Court. I am specifically being sued in "Civil Court of New York." Thank you again :)
  33. 1 point
    Zwicker is Discover's attorney not a junk debt buyer. They are representing Discover against you. No. The consumer responsibility for a JAMS case is $250. Sure. You inform Discover that your funds are exempt from garnishment or levy. They will require proof. However, being collection proof does not mean they are required to drop the case. Some have a policy of ceasing collections under your situation others don't care and go all the way regardless. You will not win. A bad case in court is a bad case in arbitration. Discover will go all the way to the bitter end including appeals. They are the original creditor and have all the records to support their claim. The point to arbitration with Discover is to get a better settlement not to win.
  34. 1 point
    File with the court a motion to dismiss for lack of prosecution. PRA has no defense and I doubt they will respond.
  35. 1 point
    thanks @usctrojanalum sorry but where should I put this in my answer "papers filed in the lawsuit"-where I write elect arbitration in my affirmative defense? I found this on here should I put this then as my first affirmative defense and send a letter to their lawyer this week since I have time, or is that tipping him off too much...I still have 20 days so have ample time to be strategic, hence my over thinking and stalking this poor forum and its members like a loon... That the Court lacks jurisdiction over the person of the Defendant as Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement.
  36. 1 point
    This 2018 white paper on SOL from the National Consumer Law Center has some excellent information: Shortening the Limitations Period on Credit Card Collection Lawsuits The standard rule is that a limitations period begins to run from the date of default. How this applies to a credit card transaction is not always clear. If the claim is based on an account stated, the limitations period should run from the last transaction listed on the account stated. See id. § When the claim is based on a breach of contract, state law or the credit card agreement may have language related to when the card account is in default. If the card agreement states default is based on a failure to make a minimum payment, then the limitations period should run from that missed payment. Other card agreements provide that upon a missed payment, the card issuer may declare the balance immediately due and payable. Card issuers or debt buyers in that case may claim that the declaration that the balance is due immediately was not made until the collection lawsuit was initiated. Of course, this argument fails if the card issuer did in fact demand payment in full at an earlier date. Moreover, the Arizona Supreme Court, confronted with this language in a credit card agreement, has just ruled that the limitations period should run from the first missed payment. See Mertola, L.L.C. v. Santos, 2018 WL 3595915, at ¶ 18 (Ariz. July 27, 2018). The Arizona Supreme Court stated: Determining the Date of the Consumer’s First Missed Payment To determine the date the consumer first missed a payment, start with the collector’s own pleadings and any attached documents. Even if the collector is claiming a later date of default, its own pleadings, affidavits, and other documents may indicate an earlier date of default. Never underestimate the sloppiness of debt buyer documentation. The date on which a consumer stopped payments on a credit card account can also be inferred from the charge-off date, if the collector provides that date in any of its documents—something collectors do surprisingly often. The charge-off date, under federal standards, is 180 days after the account becomes delinquent. Thus, a reasonable assumption of a delinquency date is 180 days before the charge-off date. Another approach is to look at the consumer’s credit report to determine the last payment on the account reflected in the report. Do not confuse the charge-off date, which may be indicated there as well, with the date when the consumer stopped paying. Be alert to certain collectors seeking to “re-age” a debt by reporting an incorrect date of first delinquency, which is a potential violation of the FCRA (albeit without a federal private right of action unless first disputed with the credit reporting agency), as well as the Fair Debt Collection Practices Act. See generally NCLC’s Collection Actions § on proving the date of default.
  37. 1 point
    Let's just say this lingering served me well in a FDCPA case - misrepresenting the legal status of a debt. Can't say more.
  38. 1 point
    If the plaintiff thinks you are evading service, they can ask the court to use a process called alternative service such as mailing the complaint and summons to your last known address and/or putting the complaint and summons in your local newspaper and that has the same effect as being served. That said, you can contact the attorneys office and inform them that you are not in the USA. Some will realize that the effort is futile. Others will try anyways. If you find that a case has been started, you can file an answer with the court stating that they do not have jurisdiction over you as you and your assets are not in the USA. Also, realize that if you leave the USA before the SOL has expired, the SOL on the debt is tolled until you return.
  39. 1 point
    From what I gather, the basis of the other cases was that the contract says individual arbitration and thus the drivers should follow the contract. The terms were put in the contract by Uber and offered on a take it or leave it basis to the drivers. Therefore the onus is on Uber (and Uber's attorneys) to know that if 1500 arbitration claims were filed at one time on the basis of the contract, what the costs should be. Therefore now if Uber were to try that argument, the plaintiffs could argue that they wrote the contract, they should have known or been informed what could happen if a large number of people did find individual arbitration a financially viable alternative to their claim, and that they enforced the contract on the plaintiffs. Based on those 3 things, I do not believe that Uber's attempt to get out of paying for arbitration has any merit at this point. Regardless of whether the claims of the plaintiff have any merit or not. This issue came up because for drivers, employment rule breaches can add up real quick (for example if someone making $15/hour regular wage worked 20 hours OT for 6 months, that claim is over $3500). That makes those claims more financially viable for individual arbitration than say someone arguing over a $62 overcharge. This means that what we may see as an outcome is that companies are going to have to decide where arbitration clauses make sense and where they do not. Kinda like how Comeity Bank uses them all of the time whereas Capital One has gotten rid of them completely. Uber might keep the clauses for passengers (whose claims would be lower than drivers) but remove them for drivers.
  40. 1 point
    Typical clydesmom hypocrisy. Again recommends that someone should use discovery to defend themself in court after repeatedly proclaiming that if I recommend the same to Texans then it is "bad advice" that will lead them "straight to judgment" and to boot abandons them upon asking a fully legitimate question after denouncing me for leaving someone hanging who refused to follow my instructions. What county are you in and which law firm filed the suit? Ask the court clerk how they prefer you to go about requesting approval to begin discovery. Some will just say to go ahead and proceed. Here is my motion if that is what they need. I will PM you the discovery in case they ask to see it during the approval process. MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY Comes now, Defendant ______________ and files his (or her) Motion to request permission from the honorable Court to begin Level 1 discovery pursuant to Texas Rules of Civil Procedure Rule 190.2 and Rule 500.9 Defendant hereby asks to send Plaintiff Request for Disclosure (pursuant to TRCP Rule 194), request for admissions, production of documents, and interrogatories relative to how Plaintiff intends to prove up the assignment of the alleged debt they claim to own which is the subject of the lawsuit. Defendant asserts that Plaintiff lacks standing to bring forth this lawsuit; therefore discovery is reasonable and necessary in order to develop his (or her) defense and to minimize taking up the Court's valuable time. PRAYER Defendant prays that the honorable Court grant his (or her) Motion For Permission To Conduct Discovery and grant Defendant any other relief that he (or she) is entitled to.
  41. 1 point
    BBB shows the same company with both addresses and a few more as well.
  42. 1 point
    A ruling in Uber's favor in their current situation is a ruling against consumers when fighting credit card companies going forward.
  43. 1 point
    Oh, half of those were me. Just kidding. 😀 Uber won't, but Banks will. I can see other companies like Uber, Cable Companies and Cell Phone providers removing arbitration, but I can't see the Banks ever doing it unless absolutely forced.
  44. 1 point
    Keep an eye on the docket online if possible and watch for the other side to file an opposition to your MTC. If they do, you only have a limited time to respond to that. Let us know what it says and you can get help on how to counter their points.
  45. 1 point
    Your options are roll the dice and likely lose in court or appeal the denied MTC.
  46. 1 point
    In Ohio they can't get attorney fees for consumer debt. They already incurred the filing fee with the court. If you don't file an answer, they will get a default judgment. Don't be surprised, if you reach out to them to settle, they string it out after the 28 days you have to answer, perhaps implying you don't need to answer since you are working with them, and they get a default judgment. I would file the answer. You can always settle after you answer. The courts encourage settlements between the parties, so both parties will be encouraged to reach a settlement by the court at your first pretrial conference. I would fight them, hard. The plaintiff is a JDB. They want easy prey for defendants. They make their money on the 95%+ default judgment rate. If you fight them hard, they might decide it isn't worth it and dismiss the case. I used this strategy with an OC in Ohio, and it worked. Yes, that was almost 10 years ago, and there are some here who will say times have changed and that strategy doesn't work anymore. Maybe it does in some areas, maybe not in others. There are some judges out there who hate JDBs. You never know what will happen. I don't see any downside to fighting them. Remember, you can always settle at a later date.
  47. 1 point
    I had a guy at work ask me about a Midland lawsuit against him. He told me he had $2,000 he could offer them to settle a $5,000 debt. I spent about 10 minutes explaining how arbitration works and that Midland will walk away and he would have to pay nothing but the $200 arb filing fee. At the end of the conversation he said "i think I'll see if they'll accept the $2,000". I've seen that happen here a few times but always figured it was a matter of us just not explaining the process correctly. This was an in-person example, and the reason was he perceived the settlement as less hassle. He wanted the path of least resistance, even if it cost him 10x more.
  48. 1 point
    You can try to call them and state that BUT they will still want the judgement. You might be collection proof today but tomorrow you might have assets at a later date and the judgement accrues interest at a rate better than market. They can do depositions too and if you miss just one, they can get an arrest warrant and have you thrown in jail. Once you are bailed out, they take the bail money. They also do not believe anyone who claims to be looking into filing bankruptcy because too many people say that. They only believe the actual filing. If you really are going to go the BK route, I would suggest you do that before the judgement is issues, especially if you have real estate such as a small home.
  49. 1 point
    Your case is in Justice Court. You cannot do discovery until you get permission from the court. You have to get that first. Please keep all your questions in this thread and don't start a new thread for each new issue. It is too hard to keep up with.
  50. 1 point
    Thank you, Jimmy. My thanks also to Goody_Ouchless, Clydesmom, BV80, Shellieh98, and Harry Seaward! I appreciate everyone taking their valuable time to help me.