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  1. 8 points
    The results are in.... PASSED! I submit my application to the character and fitness committee next week. If approved, I will be sworn in as an attorney June 12, 2019.
  2. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  3. 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
  4. 5 points
    Updating my thread as I am now officially finished. After initiation with JAMS PRA did not want to further the case so they asked for a mutual walk away. I told them only if it is w/prejudice. So this makes win number 3 now. Arb in Ohio is a viable strategy, and I wouldn't have been able to do it without the help from the wonderful community! This win is for you guys!
  5. 5 points
    In case anyone is interested, I filed the MTC for arbitration. The law firm was reasonably quick to get back to me, though I wasn't quick to respond (life got in the way). Once I did communicate with them, I asked for mutual walkaway with prejudice and TL deletion. They took it back to their client who agreed. Paperwork has been signed and I got an email from the lawyer today with a copy of the paperwork they are filing with the court for dismissal.
  6. 5 points
    @fisthardcheese @Harry Seaward @BV80 @Brotherskeeper @Pericles @Norfolk&Wayman @Goody_Ouchless Just got a email from Midland's attorney agreeing to the settlement offer @fisthardcheese told me to use. DISMISSED WITH PREJUDICE!!!!! I will celebrate more when it's in writing and in my hands. I will post a picture of it when I get it. THANKS to everyone on this forum for the help. Couldn't of done this with out you.
  7. 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.
  8. 4 points
    Just wanted to give everyone an update of my case... I was able to get the digitally signed promissory note from Prosper and I filed the MTC arbitration with the court. While I was waiting to receive the promissory note I sent a letter to Plaintiff's attorney electing arbitration. There was a scheduling hearing on July 26th at which time the Plaintiff's attorney stated that they wanted to wait for the court's decision on the MTC arbitration before scheduling a hearing. The judge granted me a stay on the discovery and interrogatories since they were due the following day. I was called the day before the MTC hearing by the court clerk and she said that I had not provided the court with a courtesy copy of the motion. I literally had to leave work, run home and print everything out, 3 hole punch the 18 page document, rush to Walmart to get a binder (clerk said it had to be in a binder) and drive all the way downtown to deliver it by 3 PM. This was very stressful but I managed to get it done! The MTC hearing was on August 1st and, lo and behold, the Plaintiff's attorney filed a motion for non-suit without prejudice at the last minute. Sort of anti-climactic but at least it's over with unless they sell it to someone else that tries to sue again. Thanks again everyone for your assistance.
  9. 4 points
    Great update! I lucked out. The attorney that showed up for Unifund was completely clueless. The judge forced us to mediate, so I told him I had a signed court order to arbitrate, and I also had a letter from AAA indicating that because I had a signed order, they could not pursue in small claims and it said that they had to pay $3250 immediately or the case would be closed. It specifically said that the claimant had fulfilled their obligations and was waiting on the respondent. The attorney looked it over for 10 minutes. He reviewed his paperwork, and then looked at his phone, then finally made a phone call, and then asked me that I could sign a consent agreement and go ahead and settle because he was planning on trying to get the court order vacated because of that one sentence in the citibank agreement about "small claims court". I told him that it was too late, that I had a signed court order and that we can go to trial. Well the judge then forced us to go through mediation with a mediator. I explained my situation, and the attorney said the same thing he said earlier. Then I was asked to leave so the mediator could talk to the attorney. When she called for me to come back and speak privately, she tried to tell me to settle!!! That they would be willing to settle for $700 and I could pay $50/month, and that it would clear my credit and that she was just giving her advice on what she would do. But I said that I had a court order!! And she told me she said the judge could decide to vacate because of that stupid citibank small claims section of the agreement. I told her I'd take my chances and wanted to go to trial. WELL I gave the judge my order and a copy of the letter from AAA, and she asked the plaintiff why they had not started arbitration! She said that if they didn't start it, then they would be held in contempt for violating a court order, and she said that she definitely would NOT vacate the order because the last time we were in court the Plaintiff agreed and signed off on it! We go back in 30 days, and if the plaintiff does not either 1) dismiss or 2) fulfill arbitration duties and begin proceedings, then they will be in contempt. She told me that if I had any motions to file, then I should do that prior to the next court date. But I'm not really sure what she meant by that for me? I don't have any motions to file, I think? So yes, finally I had a judge kind of see my side for once. THANKS for ALL THE HELP everyone! I hope to get a dismissal in the mail soon!!
  10. 4 points
    Thank you to all that helped me along the way, case dismissed with prejudice!
  11. 4 points
    Just wanted to update everyone. I ended up winning by settlement. Had the case dropped with prejudice and Midland is paying for my arbitration + court fees. I'd like to thank everyone who pitched in with advice and helped me along the way. Most of all, would like to thank @fisthardcheese with their guide for arbitration. This is single handedly the only reason why I won so effortlessly. If anyone is in my position, please give the guide a look-see. Thank you again to every1!
  12. 4 points
    After following much advice and reading many post over and over on this forum , I have had my day in court and my MTC arbitration and stay the proceedings was granted. In Louisiana you must file your answer , MTC and a memorandum in support of your motion, a little different than the MTC examples posted here. You must also state if a court date has been set, if not you must request a court date and include a order sheet. When I filed my MTC the judge ordered PRA/Rausch Sturm to show cause as to why arbitration should not be granted. I followed all the court rules and advise from this fourm. The Rausch Sturm attorney was served as required by my state. They did not object or show up to court this morning. The judge granted my order and chucked/smiled while signing it. He said he was impressed with my ability as a Pro Se. I thank everyone for their post about arbitration, without that I would have been lost.
  13. 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!
  14. 3 points
    First off, is there a case number on the papers you were served? If not, they plaintiff is using pocket docket and you will need to send your answer to the plaintiff, not the court house. This needs to be done within 20 days from the day you were served. If there is a case number on the papers, then you file with the courts but be prepared to pay the court fees which might be quite high for $1200 case if they are using civil court rather than conciliatory court. You indeed use the state form to file an answer and under affirmative defenses, you check "Lack of Jurisdiction" and in the reasoning part, you state that the contract contains an arbitration clause and that you elect to use arbitration. The arbitration clause has a small claims exemption but that is only if you sue. Again, see above as to where you send the form. If you have to file in the court, conciliatory court will be about $75 and civil court will be $0 if they used pocket docket (just make sure you send your answer to the plaintiff attorney using CMRRR postal method). If they ever do file in civil court, those fees are about $350. You have 20 days to prepare and file this with the appropriate person. You then need to prepare a MTC arbitration. We can help you with that too. What I would do is take as long as possible to answer the summons and complaint and then a week later, either send the plaintiff attorney the MTC (if pocket docket) or file it with the court (if filed in court). I don't know the cost of filing a motion in conciliatory court but it is $175 in civil court. We will help you get further if need be. Since the fees are so high, if you are in pocket docket, what I might do is once I send the MTC to the plaintiff attorney, I would offer them the $600 I would pay in court and arbitration fees as a settlement as long as they do not file in court (with the understanding that once they file, the deal is off).
  15. 3 points
    @Robby8900 I added "in Ohio" to the topic of this thread to help make it easier to find in a search.
  16. 3 points
    To test this, I did a number of searches in my local court. I searched the small claims court docket for the most common JDBs: Portfolio, Midland, CACH, Cavalry, LVNV. None had ever filed in small claims court. Others in Ohio can try similar searches.
  17. 3 points
    Update: Had to file an appeal due to my MTC being denied initially. Appeal was won, and decision was overturned. I began the arbitration process, and JDB attorney has yet to pay filing fee. He sent an email to our arbitrator stating that in JAMS agreement, if claims are made in Court and other party is granted MTC, then it is JDB responsibility to initiate arbitration proceedings. In same email, it was mentioned that state case was dismissed. However, I have not received any documentation confirming that statement. Looks like I am in a good spot, but the arbitrator is wanting a response from me - seemingly agreeing with the JDB about who should initiate proceedings. Anyone ever ran across this situation? @fisthardcheese
  18. 3 points
    another update: "Plaintiff respectfully requests that this matter be dismissed with prejudice. Plaintiff no longer wishes to proceed." Does this really mean this is over????????
  19. 3 points
    I just want to say Thank you, to all of you who spend your time day after day assisting regular day to day people, with out asking for anything in return. My wife was served early 2014, just when we were starting to recover financially after the financial crisis. With the help of the wonderful people in this website, she fought all the way to trial. she settled at the end, and accepted an offer that she would not have received otherwise. I was then sued in 2015, however my case was dismissed a few months later. Five years later, we now have two kids, and looking at the possibility of purchasing a property in the near future. We would probably still be underwater without the help extended to us during those difficult times. The job i held the previous years game me the time to stick around and help those who are in the same position i once was; however, i am starting a new job and wont be able to sign in as often as i do now, but i just wanted to say one more thank you to all of you anonymous real life heroes. Thank you!
  20. 3 points
    They went off the deep end - constantly begging for money, despite many users offering solutions - to the point it started looking like the site was being used as a source of passive income.At the end it was like Hitler in the Bunker, banning anyone who spoke up.
  21. 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.
  22. 3 points
    Quit whining. Many of us are open to thinking outside the box. The arbitration strategy was considered lunacy when it was first proposed. There were some nasty battles fought here. Thing is, those of us advocating the arbitration strategy had numerous victories over our creditors. We didn’t whine about people not believing us. We beat the creditors and eventually others came around. One difference is the arbitration strategy was based on facts and laws and actual cases. Cases that could be verified online. Some of us tried aspects of the arbitration strategy that worked, and others that did not work That is how the strategy was refined If you want to win an argument, try it in court and either win and show us your victories or lose and take your lumps.
  23. 3 points
  24. 3 points
    Let it go? What else would you do? When JAMS bills the full filing fee to the other side, there is nothing to "let go" of - or do at all. I'm confused as to what you think this is? Not that odd, actually. I said be patient, and it turned out to be textbook.
  25. 3 points
    @Brotherskeeper @fisthardcheese @BV80 @Harry Seaward Well just got the email from JAMS telling me who the arbitrator is. It's Mr. Bradley Winters Esq. Plus they sent a bill to Midland's attorney for $5000. So let's see if they will pay this one. Thanks again for all the help. Will keep you all informed on what happens.
  26. 3 points
    As the others have said, mistakes happen. I'm actually relieved it was that and not some new rules we had to try to figure out.
  27. 3 points
    First off, the title of your thread is inaccurate, unless you filed lawsuits against PRA and Cap1. Second, can you give us details about how you accomplished these things? Without that, your thread is useless.
  28. 3 points
    DISMISSED!!!!! I hadn't heard a peep from anyone about the case, so I called the judge's clerk. He looked up the case number and told me the Plaintiff had appeared to dismiss the case. Whew!
  29. 3 points
    It is nonsensical for a person who asked for and was granted arbitration in a case to then nitpick by demanding the other side file instead AND giving up the extra little bit of leverage being the Claimant in the arbitration case will hold. Let it be known across the land: If your MTC is granted, FILE THE ARBITRATION CASE IMMEDIATELY AND WITH NO RESERVATIONS. Filing an arbitration case is the easiest part of this entire process. Not doing so is just plain silly.
  30. 3 points
    What case law did you put in your motion to compel? Use those cases in support of your argument. It would be technically improper if you brought up case law for the first time at a hearing without giving other side opportunity to oppose and respond to it.
  31. 3 points
    I've been walking in similar shoes for a while. Unfortunately, as long as the contract you signed says it's a commercial loan, you won't be able to file a consumer arbitration case. My commercial contracts also include a personal guarantee. Lenders do this to protect themselves in the event a business folds or goes bankrupt. If they can't go after the business, they can go after the person who personally guaranteed the loan. This doesn't change the fact that it's a commercial contract. You said you signed and returned the BofA contract. Are you saying the contract filed as an exhibit is not a true and correct copy of what you signed? If so, why? Does your copy of the contract include the same misspelling? Based on my personal experience, arbitration is something I would personally stay clear of. You will not be protected by a consumer fee cap.
  32. 3 points
    Im glad to share my experience with you. I also have another thread that I won against LVNV. That was my first learning experience, and you could watch my growth lol. There are so many great people that are willing to put in their time to help you. This community is amazing, thats why I put in the work I can do and return the favor to any future pro se'ers. Just remember I am not a lawyer, I am only implementing what I learn and researched along with the direction of many community members. I wish you luck, and make sure you re-read at least 5-6 more times before you file with a fine tooth comb for errors.
  33. 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.
  34. 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
  35. 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!!!!
  36. 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
  37. 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.
  38. 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.
  39. 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!
  40. 2 points
    So I did confirm that the case was dismissed last week. Thank you guys SO MUCH! To answer the question, after winning the appeal, I filed JAMS paperwork to initiate the arbitration process. After several attempts by JAMS to collect the initial deposit from JDB, he sent an email saying that according to JAMS policy: ""On page 4 of that agreement, “Resolving a Dispute with Arbitration” is discussed. On the following page 5, under “How to start an arbitration, and the arbitration process”, under number 2, “If a party files a lawsuit in court asserting claims(s) that are subject to arbitration and the other party files a motion with the court to arbitrate, which is granted, it will be the responsibility of the party asserting the claims (s) to commence the arbitration proceeding.” All these conditions are satisfied in this instance. Therefore, under the terms of this agreement (JDB) must be the party bringing the arbitration"" Regardless, my case is dismissed. Still wanted to provide this info in case anyone else runs into this situation in the future.
  41. 2 points
    MORE DEBT COLLECTION CONFUSION AND MISCONCEPTIONS 1. THE CONSENT ORDERS BETWEEN THE CONSUMER FINANCIAL PROTECTION BUREAU (CFPB) and MIDLAND FUNDING and the CFPB AND PORTFOLIO RECOVERY ASSOCIATES ARE “LAW”. FALSE The CFPB is not a legislative body that can enact laws. Check out the following two links to the CFPB website https://www.consumerfinance.gov/policy-compliance/guidance/supervision-examinations/institutions/ https://www.consumerfinance.gov/about-us/the-bureau/ None of the information in either link implies the CFPB has the authority to enact law. Now to the Consent Orders. There is no statement in either Order that declares the provisions within those Orders to be “law”. The requirements listed in the Orders are imposed upon the “Respondents”. All one must do is read the Orders and the “Respondents” are identified. The Respondents are the defendants. The requirements are not placed upon any other debt buyers. If they were “law”, ALL debt buyers would be required to adhere to them. As to enforceability, the following is from the United States Supreme Court. The Supreme Court has held that "a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it." Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 750, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). While instructive, the Consent Order is not binding on this Court. Madinya v. Portfolio Recover Assocs., LLC, No. 18-CV-61138, 2018 WL 6590829, (S.D. Fla. Dec. 14, 2018) (See Christensen v. Harris Cty.,529 U.S. 576, 587 (2000)). The Consent Orders are between the CFPB and Midland Funding (Encore) and the CFPB and Portfolio Recovery. They include specific consumers who were affected by specific acts during specific timelines. Therefore, only those parties are affected by and can enforce the provisions contained within. Here is a quote from the Consent Order between Midland Funding (Encore) and the CFPB. Page 62 193. The provisions of this Consent Order will be enforceable by the Bureau. It DOES NOT state that courts can enforce the provisions. Just an added note, in the event the CFPB does not have to initiate another action against the two debt buyers, the requirements placed upon Midland and Portfolio expire years from the date of each Order. Page 62 of the Midland Order 190. This Consent Order will terminate 5 years from the Effective Date or 5 years from the most recent date that the Bureau initiates an action alleging any violation of the Consent Order by Encore. That same statement is located on page 58 of the Portfolio Order. 2. WHEN AN ORIGINAL CREDITOR TAKES A TAX DEDUCTION, IT IS KNOWN AS “ACCORD AND SATISFACTION”. THIS RENDERS THE DEBT SATISFIED AND LEGALLY, NO ONE CAN MAKE ANY FURTHER ATTEMPTS TO COLLECT ON THE DEBT. FALSE The following is from the U.S. Code of Federal Regulations. 26 CFR 1.166-1 - Bad debts (f) Recovery of bad debts. Any amount attributable to the recovery during the taxable year of a bad debt, or of a part of a bad debt, which was allowed as a deduction from gross income in a prior taxable year shall be included in gross income for the taxable year of recovery Notice the above cited federal regulation states "[a]ny amount attributable to the RECOVERY". Then it states "which was allowed as a deduction from gross income in a prior taxable year". Those phrases show that a business which claims a tax deduction for a bad debt is allowed to RECOVER some of that debt at a later time. Once it recovers some of that bad debt, it must claim the amount of the recovery as part of its income. This means that the original creditor can sue a consumer, or it can sell the account to a debt buyer in order to recover some of its loss. In the following ruling, the Michigan federal court noted that Chase and WFNB sold accounts AND were allowed to receive a bad debt tax deduction. Instead of amassing interest on a worthless account, Chase and WFNB sought to sell the accounts and shift the risk of nonpayment to a third party for a nominal fee. This practice also permitted Chase and WFNB to remove the account from the financial records and receive a bad debt tax deduction. See I.R.C. § 166(a)(2). McDonald v. Asset Acceptance LLC, 296 F.R.D. 513 (E.D.Mich.2013). As to “accord and satisfaction”, that defense is available only if the consumer is a party to the agreement. An agreement between the original creditor and the Internal Revenue Service regarding a tax deduction does not include the consumer. Allen v. R.G. Indus. Supply (Ohio Supreme Court, 1993) "An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Lazzarotti v. Juliano (Pennsylvania Supreme Court, 1983) "An accord and satisfaction is the result of an h which may be and usually does result from an implied agreement arising from the circumstances. If an agreement stems from a disputed claim, the acceptance of an amount less than the creditor claims to be due, when tendered by the debtor in full satisfaction of the creditor's claim, becomes a completed accord and satisfaction." Horizon Well Service, L.L.C. v. Pemco of New Mexico, L.L.C. (New Mexico Court of Appeals, 2015) "When considering the existence of an accord and satisfaction, we should examine the following elements: (1) [d]id the debtor make an offer in full satisfaction of the debt; [(2) w]as there an unliquidated or disputed claim which formed the basis of this offer; [(3) w]as this offer accompanied by acts and declarations which amounted to a condition; [(4) w]ere those acts and declarations such that the offeree was bound to understand them; and [(5) w]as the offer accepted in full satisfaction of the debt." MECO, Inc. v. Township of Freehold, NJ (Superior Court of New Jersey, Appellate Division, 2011) "The traditional elements of an accord and satisfaction are the following: (1) a dispute as to the amount of money owed; (2) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the disputed amount; (3) acceptance of satisfaction by the creditor." 3. DEBT BUYERS CANNOT REPORT TO CREDIT REPORTING AGENCIES. FALSE The Fair Credit Reporting Act does not differentiate between an original creditor, collection agency, or debt buyer. It refers to a “person”. Fair Credit Reporting Act, 15 U.S.C. 1681a(b) (b)The term “person” means any individual, partnership, corporation, trust, estate, cooperative, associati no one can attempt any further to collect this debt. Regarding collection accounts: Fair Credit Reporting Act (FCRA) - 15 U.S. Code § 1681c(a)(4) Requirements relating to information contained in consumer reports (4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. A debt buyer is a “person” as defined by the FCRA. As a “person”, it can report a collection acco From the Consumer Financial Protection Bureau -page 8 “Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).” https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf From Experian: “Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.” https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/ 1692e(8) of the Fair Debt Collection Practices Act (FCRA) (8)Communicating or threatening to communicate to any person information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. The FDCPA only applies to debt collectors. This shows that a disputed debt applies to a debt reported on one’s credit report. From the Consumer Financial Protection Bureau -page 8 “Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).” https://files.consumerfinance.gov/f/201412_cfpb_reports_consumer-credit-medical-and-non-medical-collections.pdf From Experian: “Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.” https://www.experian.com/blogs/ask-experian/credit-education/report-basics/how-and-when-collections-are-removed-from-a-credit-report/ Midland Funding is a debt buyer. The following is from a consent decree issued by the Consumer Protection Financial Bureau with Encore Capital and Midland Funding. “i. for those Consumer accounts where the Debt is Time-Barred and generally cannot be included in a Consumer report under the provisions ofthe FCRA, 15 U.S.C. § 1681c(a), but can be collected through other means pursuant to applicable state law, Encore will include the following statement: ‘The law limits how long you can be sued on a debt and how long a debt can appear on your credit report.’” The above shows that due to a time limit, Midland cannot report a debt to the credit reporting agencies. Page 38 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf BUT, if the debt is not beyond the 7-year reporting period, Midland can report it to the credit reporting agencies. ii. for those Consumer accounts where the Debt is Time-Barred but can be collected through other means pursuant to applicable state law, and may be included in a Consumer report under the provisions of the FCRA, 5 U.S.C. § 1681c(a), Encore will include the following statement: "The law limits how log you can be sued on a debt. Because of the age of your debt, we will not sue you for it." Page 39 at https://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf Notice that the two requirements in the Consent Order state when Midland can and cannot report debts to credit reporting agencies. If a debt buyer were not allowed to report to credit reporting agencies, the CFPB would not include those requirements.
  42. 2 points
    Just FYI, most lawyers will say things like "why on earth would you want to take this to arbitration???" because they don't understand the concept of forcing a dismissal due to the arbitration fees for PRA being more than the debt is worth. So just be prepared for them to try to talk you out of it.
  43. 2 points
    Agreed. This is not the outcome you wanted, but it has its advantages. You had two years to recover your finances. You are now in about the situation you would’ve been two years ago if you had made the same agreement with them then. Except you had two years to deal with your money issues. In any case, not having a judgment in court is a very big deal. I am currently working in the banking industry. Having an unsatisfied judgment on my record would destroy my career. At the time of my financial woes, I had no idea I would ever work in banking. Not to mention, I finally refinanced my house about 18 months ago An unsatisfied judgment would have been fatal. I had a satisfied foreclosure judgment on my record which delayed my refinance by several years The moral is, you never know when having a judgment on your record will be horrible.
  44. 2 points
    You do not have an official address in Los Angeles County. Since your home is in Nevada County, that is considered your domicile and where they can sue you. That said, I would look into a free consult with an attorney and see if you can get the case dismissed because the combined 2 different subject matters in one case when they should have filed 2. You might, you might not. If the court does not buy that, then immediately MTC for arbitration on both accounts and if granted (probably will be), open 2 different arbitration cases (one for each account). That will double what Midland will expend trying to collect on the debts.
  45. 2 points
    HENRY SCHEIN, INC. v. ARCHER & WHITE SALES, INC; Jan 2019 https://www.supremecourt.gov/opinions/18pdf/17-1272_7l48.pdf
  46. 2 points
    I'd say if you haven't read it, go ahead and make suggestions on problems you feel are present with the current FDCPA. There's also a lot of recent court cases in there you can do a word search on, such as Santander. It appears they're also trying to update and standardize the FDCPA definitions, instead of relying on court cases with varying results depending on location. Technological changes in the way we communicate since the law was written in the 70s are also addressed. Their summary- Establish a clear, bright-line rule limiting call attempts and telephone conversations: The proposed rule generally would limit debt collectors to no more than seven attempts by telephone per week to reach a consumer about a specific debt. Once a telephone conversation between the debt collector and consumer takes place, the debt collector must wait at least a week before calling the consumer again. Clarify consumer protection requirements for certain consumer-facing debt collection disclosures: The proposed rule would require debt collectors to send consumers a disclosure with certain information about the debt and related consumer protections. This information would include, for example, an itemization of the debt and plain-language information about how a consumer may respond to a collection attempt, including by disputing the debt. The proposal would require the disclosure to include a “tear-off” that consumers could send back to the debt collector to respond to the collection attempt. Clarify how debt collectors can communicate with consumers: The proposed rule would clarify how debt collectors may lawfully use newer communication technologies, such as voicemails, emails and text messages, to communicate with consumers and would protect consumers who do not wish to receive such communications by, among other things, allowing them to unsubscribe to future communications through these methods. The proposed rule would also clarify how collectors may provide required disclosures electronically. In addition, if consumers want to limit ways debt collectors contact them, for example at a specific telephone number, while they are at work, or during certain hours, the rule clarifies how consumers may easily do so. Prohibit suits and threats of suit on time-barred debts and require communication before credit reporting: The proposed rule would prohibit a debt collector from suing or threatening to sue a consumer to collect a debt if the debt collector knows or should know that the statute of limitations has expired. The proposed rule also would prohibit a debt collector from furnishing information about a debt to a consumer reporting agency unless the debt collector has communicated about the debt to the consumer, such as by sending the consumer a letter.
  47. 2 points
    That's a choice for you to make. I don't want to blatantly just say another attorney's advice is wrong. But you have to weigh if a waiver of your right to sue them is worth the trouble of taking your dismissal with prejudice, contacting the CRA's and making sure the CRA's do what they are supposed to do.
  48. 2 points
    Things I would ABSOLTELY include with my reply: 1. I would state that I DO NOT object to a 60 day stay. 2. I do not object to filling the Demand for arbitration, and in fact, already have the paperwork ready to file immediately upon granting of Defendan't Motion to Compel. I would state that I am only waiting for the MTC to be granted, as it would be improper and against common sense to file an action in arbitration when the same is part of an active case before This Court. 3. I would submit a copy of a JAMS demand. --- JAMS --- since they are so sly as to mention all of the AAA rules in their response (I am assuming some attorney breifly skimmed the AAA rules only at some point to come up with their silly response). I would make my JAMS demand an exhibit in support of point number 2 above. 4. I would get as much case law as I could on MTCs granted after the start of a lawsuit to show that it is, in fact, commonplace to file MTC when a lawsuit is filed which contains an underlying arbitration clause. And also that there is NO case law stating that arbitration must be filed first. 5. USE JAMS. USE JAMS. USE JAMS.
  49. 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.
  50. 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.