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  1. 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.
  2. 4 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. 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!
  4. 3 points
    Lack of evidence of a claim doesn't inherently make it frivolous. Frivolity means you have no basis at all for the claim. Your own testimony that you saw numbers in your phone, returned the call and discovered the called party was Unifund is evidence. It's not enough to prevail on the claim if Unifund denies making the calls, but it absolutely pushes you past the frivolous threshold. This is why we keep telling you to quit worrying about "frivolous". You're not in that camp. The lawyer's ignorance over the fees is IMO a much bigger concern with potentially catastrophic results.
  5. 3 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.
  6. 3 points
    They didn't show up and I won my motion for sanctions against them. It's only $272 but I won, nonetheless. Fight back, folks! LVNV Sanction Motion .pdf
  7. 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!!!!
  8. 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
  9. 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.
  10. 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.
  11. 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!
  12. 2 points
    I see two options here (after skimming their response): 1. reply citing Capital One v. Rotman (https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf) The responsibility for initiating arb is on the plaintiff, not the defendant. 2. They have agreed to a 60 day stay. So you promptly initiate arb and pay the fee. The court should stay the case pending arb after that. Case should be over when they get the big arb bill.
  13. 2 points
    Notice where they say "To be clear, Discover does not oppose..." Discover? They copy/pasted this from another case!!!!
  14. 2 points
    1692c (c) Ceasing communication If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except -- (1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt. Did you send a C&D and they continued to call you? That would be an FDCPA violation, for the 9000 time. You already asserted "FDCPA violation" in your demand, so your brief should include this part of the FDCPA as what they violated. In addition I would motion to additional claims like I stated above. You MUST READ these statues and corresponding case laws. The TCPA is triggered when you said stop calling and they called your CELL PHONE. A statutory $500 PER CALL is allowed to be awarded for those violations.
  15. 2 points
    If Unifund and Pilot are affiliated with each other, you have to consider the possibility that Pilot didn’t sell the account to Unifund. It may have simply assigned or transferred the account to the JDB.
  16. 2 points
    Personally, I think it’s a good thing that JDBs can buy debts. The reason is that the OC can sue you, or a JDB can sue you. You have a much better chance of winning if you’re sued by a JDB. In addition, JDBs are bound by the FDCPA whereas OCs are not.
  17. 2 points
    Hello All, LVNV did file a trial de novo as expected however, I filed a motion for monetary sanctions in the amount of $3,500 for their failure to attend the arbitration hearing and they immediately filed a request to dismiss the case. Hmmm, I know they will be back and if not them one of the other pretender debt collectors with phony assignments and BS. When they rear their ugly heads I will be ready. Good luck to all of you and may God Bless you and your Journey with these lying thieves. LVNV Request for dismissal .pdf
  18. 2 points
    Arbitration is very informal. Many people just type up an email with these things. I, personally, format them in the Federal Court format just as a way to dab on the opposing attorney Timing is the most important aspect, however. If you don't have time to do a formal format, just put it in the body of an email.
  19. 2 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
  20. 2 points
    Just assume they have enough to win (they almost always do these days) and use the arbitration strategy to make them dismiss the lawsuit. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  21. 2 points
    If the plaintiff has sent you discovery, you need to answer it, but in a particular way so as not to waive your arbitration rights. You need to OBJECT to them all, citing that arbitration has been elected, and the scope of discovery is to be determined by an arbitration forum.
  22. 2 points
    Yes, in my arb case in a muni court, I noted that as well. So I styled my motion as a Motion to Dismiss, or in the Alternative, to Stay Pending Arbitration. The case wasn't dismissed but was stayed. You definitely want to ask for a stay, since Ohio law makes a stay mandatory if there is a valid arb clause. But, in the years since, a number of posters here in Ohio have filed MTCs in muni courts, with success. It apparently doesn't make a difference.
  23. 2 points
    And ONLY change part of the arbitration section to state that the consumer is responsible for their portion of the filing fee per the JAMS consumer rules. I guess that means the person setting up this site making these changes are also making bogus JAMS rules stating that the consumer is only responsible for $250 and not 100% of the filing fee.
  24. 2 points
    UPDATE: Well, the attorney met me in court yet again and the judge wanted to know what was going on with this case and mentioned that this is the longest case he had ever had regarding a debt collection. The attorney blabs on about how I agreed to pay the full amount of the filing fees and also said that it didn't seem fair that they had to pay $1250 and I only had to pay $250. Haha. That made me laugh a little. He obviously ignored every piece of mail that I sent that had the JAMS rules and fees. The judge took some time to read the letter the attorney sent and my response. Then he asked how much was in question, which was ~ $950. Then he asked for the credit card agreement, which I gladly gave him. I had a notarized affidavit, and he told me that didn't matter, that I'm not allowed to certify anything. Don't really know what that meant. Then the attorney stated that I got that agreement off some bogus website, and who knows where I got that. The judge asked PRA if he had an agreement, and the attorney said no. Then finally, the judge told the PRA attorney, "I hate to say this, but the language in this agreement says that if the dispute is under $75,000, then the consumer pays their portion of the filing fees, which in this case is $250. No where does it say that the consumer has to pay 100%, and I don't recall the defendant saying that either. So you can decide to proceed with arbitration and pay the filing fees and hope to recoup some of that money back, but I'm not sure if that's what you want to do when the dispute in question is $950. Or you can dismiss this case. You have 60 days to pay the filing fee or this case will be dismissed." Although the way he worded it made it sound like he was apologetic to the PRA attorney because it was out of his hands. This is the judge that does not like me, and questions every piece of document I submit. Anyway, YAY!!! Thank you all for helping me through this case until the very end. I'll still need to wait 60 days to see what this PRA attorney does, but crossing fingers he won't pay, then I can request a dismissal after that period is over. I've been fighting this guy for over a year. I appreciate all the advice here, and the confidence you've given me! I think I've had 6 cases go to court, two I had to settle until I found this board, and now, this is my 4th that I've been able to get dismissed thanks to everyone's help. However, each time I get one dismissed, I seem to get another letter in the mail. My backstory is basically a family medical emergency which cost us our whole life's savings, and in order to stay in our home and have food, we had to stop paying on CCs. Trying to slowly climb back to where we used to be, so I really am grateful to the people that help with their experiences and strategies and advice. It has made such a huge difference!
  25. 2 points
    You have to do 7503(a) no matter what if going the arbitration route. That's simply making a motion, the motion process itself is more or less pretty basic even if the argument can be complex. That's not that bad. However, if you also follow (c); when you make the motion creditor can't say arbitration agreement is invalid. Which is pretty nice to have in your pocket.
  26. 2 points
  27. 2 points
    Sometimes they object, sometimes they don't. Don't worry about it and just move forward with initiating arbitration with AAA. They will dismiss once you pay the $200 filing fee, if not before.
  28. 2 points
    Sued by cap one for over $20k in 2013. Won today after 6 years. Thank you to this website and don’t give up!
  29. 2 points
  30. 2 points
    I happen to disagree that JAMS is the best choice. Their consumer fees are a little higher, but more importantly, their rules are leave room for the possibility that you could get stuck with your opponent's arbitration fees. AAA, on the other hand, is crystal clear that the business's fees can never be reallocated back to the consumer when the consumer elects arbitration to settle the business's claims. In the case of a JDB, it's almost certainly a moot point since they have always dismissed as soon as the court orders arbitration and the consumer pays the filing fee.
  31. 2 points
    Are you telling us that courts have ruled that patients get to keep $1.5 million that an insurance company intended to be paid to a medical provider? If i have that correct, please post one of those rulings.
  32. 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.
  33. 2 points
    This was such a great idea. Looking occupied likely made you seem much more prepared. Congratulations on your victory!
  34. 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."
  35. 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
  36. 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.
  37. 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!
  38. 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."
  39. 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.
  40. 2 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.
  41. 1 point
    Send them a pre-arbitration letter.
  42. 1 point
    Thank you @MikeB35 !!! Been trying for DAYS!! Lifesaver!! 🔥
  43. 1 point
    Portfolio Recovery Associates filed a claim against me in small claims court against a Synchrony Bank/Pay Pal CC account on November of 2018. I filed an answer to their claim along with a lack of subject matter jurisdiction and requested to elect the private arbitration clause. When we got to court the attorney had no idea about the answer/motion (I kindly provided her a copy of the certified notice). The judge ruled in my favor and ordered that my motion to invoke Arbitration was granted. Per tbe Synchrony agreement, we had to use AAA. I filled out the forms, paid the $200 and got the ball rolling. They sent the PRA lawyers 3 requests for the payment for the case to proceed (which exceeds what I owe). The last date was 2/14. I got a notice today that says that they (AAA) are not moving forward with the case because PRA lawyers haven’t paid. My question is, what do I do now? Take a copy of all of the AAA paperwork and file it with the court to cover my a$$?
  44. 1 point
    This is why I was asking @usctrojanalum why he suggested that. Unless it is a court requirement, I just like keeping things more simple and streamlined for people who are just learning about all of this for the first time and may be overwhelmed with it all.
  45. 1 point
    @Michelle777888 I hope @fisthardcheese or @Harry Seaward will offer advice. IANAL (I am not a lawyer) and have no arb experience. It appears to me that you complied to the letter with the court's order and that PRA is both violating the court's order by not participating in the arb process within the 45 days ordered to complete it, and in default of the AAA rules and process.
  46. 1 point
    If your court offers a sworn denial form, then I would have to believe that covers it pretty well. Not necessarily. I don't usually put much stock into the contractual choice of law because you can still be sued in the county where you reside and most courts do not recognize SOL as being a procedural - whatever the heck they call it. Basically they find ways to apply your state's SOL anyway.
  47. 1 point
    @fisthardcheese states the following in his template: "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)" I would call it whatever the Synchrony page header calls it.
  48. 1 point
    Welcome back, Shellie! We’ve missed you! 😀
  49. 1 point
    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'.
  50. 1 point
    I usually do, however, this is the ONE perfect storm where I strongly recommend filing NOW for the following reasons: OP is in Georgia where these collectors will file in Magistrate Court. While technically not "small claims", it can and has been considered small claims by many judges. OP has a Citi card agreement which has the worst "small claims exception" language in it. So in this type of situation ONLY is when I strongly suggest filing the arbitration before the other side can file the lawsuit.