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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
    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!
  3. 7 points
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Well it's official. DISMISSED WITH PREJUDICE.
  4. 6 points
    I would recommend three things: 1. Research what you need to do to protect yourself as much as possible from a judgment until such a time as you can declare BK. 2. Contact a mental health professional. I am 100% serious here. You said the stress is bad enough you have thoughts of suicide. You need help coping with the stress. There are options for people with no money. 3. If you have any weapons in the house, get rid of them. Even if they are collectors items for display. Two guys I was close to when I was a kid are now dead because they had access to collectors item weapons when they were feeling suicidal. Everyone I know who attempted suicide without a weapon, including my own kid a few months ago, is still alive. Although a couple of them, including my kid, came close to dying. Everyone I have ever met who attempted suicide and failed is glad they failed. Why? Because things always get better eventually.
  5. 5 points
    Thought I’d give an update. I followed the advice from @fisthardcheese and PRA attorney emailed me stating they would agree to dismiss with prejudice for Dismissal of the arbitration case. They should send the agreement over today!thanks everyone.
  6. 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
  7. 5 points
    Well, I haven't been an attorney long. But I have never seen any debt buyer in NY doing field trips to OC to get acquainted with their business practices. That would present interesting legal issues to litigate though. In the case law I've read, it is pretty clear that only having custodian testimony, without more, is not enough in NY. I know a collection attorney who represented a medical JDB. He told me the JDB and the medical provider had an agreement that the medical provider would be available to provide affidavits for motions and show up at court appearances to testify. I have NEVER seen that among the consumer credit plaintiff's and JDB's. I've handled about 5 JDB cases now. When I have pressed them for names and addresses of witnesses to appear at trial; and have taken discovery seriously; they have all folded. They know they can't prove their cases and go for the low hanging fruit. I've gotten three dismissed via agreement, one was for a sum of $33,000. And today I got one dismissed via a judges order where the judge denied a JDB summary judgment and granted the cross-motion to compel arbitration.
  8. 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!
  9. 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.
  10. 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.
  11. 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.
  12. 4 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 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
  13. 4 points
    Bench trial held in February 2020. Sued by PRA to collect $8107.11 for a CapOne Cc. Just received the judgement, case dismissed with prejudice. Such an amazing feeling it is to learn the law, apply new complex knowledge and defeat PRA. Absolutely could not have done this without the advise, information and experiences found here. Especially thankful to BV80 for suggesting specific Idaho Supreme Court case law. It was a hard confusing battle...it wasn't until I beat their summary judgment that I began to actually understand what I was doing. Object object object because...in the end the court ruled evidence offered by Portfolio Recovery was inadmissible hearsay and lacked foundation. I think what really sealed the deal was "The billing statements offered in Exhibit 1 lack foundation and are inadmissible under the business records exception". Turns out that even with 902 (11) you cannot upload someone else's business and call them your own. At least in Idaho. Big 'ol hug to Bv80 and Harry Seward for donating your personal time here, answering my questions and pointing me to the right direction. I will certainly Pay it forward. My husband was wrong, big bad attorney's don't always win.
  14. 4 points
    Just to finalize this, I received PRA's Voluntary Dismissal with Prejudice several weeks ago. I can't thank each of you enough for your help and support. I would not have succeeded without the advice and information provided here and would've been screwed had I gone with some of the information on the internet. Again, my sincere thanks to all of you.
  15. 4 points
    Update: Finally received the Magistrate's Order: This matter came before the court for ruling upon Defendant's Motion to Compel Arbitration, and Stay Proceedings. After review of Defendant's motion, the court finds the Motion to Compel Arbitration and Stay Proceedings well-taken and is hereby granted. This matter shall be STAYED for 60 days to allow this parties to initiate Arbitration Proceedings. This case shall be set for a Status Conference by at 9:30 a.m. on February 12, 2020. Looks like I got it! Now to file with JAMS and see what will happen. Not sure why both weren't uploaded at the same time but I'll take it no matter! Brotherskeeper and LaneBlane plus everyone else, thank you so much for helping me get this far. Now to wait and see what happens. Hopefully I can push for walk-away w/ Prejudice
  16. 4 points
    Yep. You asked how to beat Discover in arbitration and I told you that you couldn't, and instead of wasting time fighting a losing battle against Discover in arbitration, use that precious time with your dying father. I know. Total d**k move on my part. Let's compare - shutting down a user on an internet message board that is abusive to other users vs. systematically murdering 6 million people. Yeah, when you put it that way, i see your point.... It doesn't make sense because there aren't any of the nefarious reasons you're trying to create. There are 5 pages of me trying to debate you that everyone here can go read for themselves. As everyone can see, you don't debate. You don't respond to any points other people make, but instead keep repeating your same nonsense and calling me (and others) names. For these reasons, this thread is also locked, and and because you insist on starting new abusive threads, your posting status has been 'upgraded' to moderated status. Congratulations! Membership has it's privileges. Shhh! Don't tell anyone, but I didn't lock your previous thread. I'll let the responsible party identify themselves if they wish, but you probably think I locked it because my post was the last one in that thread. As a moderator, I have the ability to post into locked threads, just like the person that locked your last thread can post into this one. In fact, I have already locked this thread before I started making this post. Neat, huh?
  17. 4 points
    Hi everyone, I just got my win from California today. Plaintiff filed a request for Dismissal the day after they got my mail. I sent them a Meet& Confer letter and objection attached to their Violation of CCP96 letting them know that I will object if they plan to call any witness. Without a competent witness who has personal knowledge, they cannot authenticate any documents. Im very grateful for this forum and to @calawyer@LoveIsPower@ATSmedic @HomelessInCalifornia @RyanEX@sadinca and many others as well. I just want to say that you can win too!! Just dont give up without a fight and try your best! As long as you can show them that you understand the law, you can also have your win. I have been on this forum for the past year reading and studying. It was all worth it.
  18. 4 points
    it's just as much your story as mine @SJULawAlum so GUYS the update is that literally RIGHT before I was headed to post office (like mere seconds to send my arb stuff to jams) my lawyer got a call from some dude over at jdb law firm stating they would offer me a settlement in exchange for what I would pay for arb filing fee $250. Obviously my lawyer is a genius (duh) and said he didn't know if I would settle so now feel as though ball is in my court as can use this as leverage to hopefully 🤞get what I want from midland otherwise I suppose why wouldn't I do arb?!? or go through with it rather...so now we will wait to see what their settlement offer is and go from there but just wanted to keep everyone in loop for future people and for my forever gratitude to those on my journey and STILL helping/weighing in. Obviously I am literally blessed with @SJULawAlum who not only is a whiz at NY law, great attorney and just wonderful person... but also to those who've helped me from the beginning and still do @Brotherskeeper and the arb godfather himself @fisthardcheese I don't want to jinx anything but am hoping we've come this far can get what I want🤞🤞
  19. 4 points
    This is astounding! When this thread started, I was certain they had obtained a default judgment. Once again, The Cheez comes through!
  20. 4 points
    Thanks. My kid just got home from the first day of school. I don't want to hijack the thread, but it really puts things in perspective. What we are dealing with is just money. Money is nothing but a medium of exchange. It isn't worth suicide over money. Life is a sacred gift. Money is a man-made construct. My father was always wondering something. He knew that his maternal grandfather died when he was young, and the rest of their family acted strangely to his family after that. I mean REALLY strangely. He never understood why, and I remember him trying to figure out a letter from his uncle, which started out saying his uncle wasn't looking for any money. It turns out my grandfather bailed out his father-in-law a few times after the 1929 stock market crash, but at some point the stress was too much for my great-grandfather and he killed himself. My father never knew this. I found out from my uncle, Dad's older brother, right after my father's funeral. The thing is, the money problems were temporary. All the problems would've gone away. But my great-grandfather killed himself over some very temporary money issues. I know that ALL of us have had sleepless nights, and times of great stress. I just hope that anyone who is thinking about killing themselves over pieces of paper that have no intrinsic value will get the help he or she needs before it is too late. Things get better.
  21. 4 points
    Thank you for your concern. I am no longer in that state of mind and have thankfully overcome that period of my life. I was merely stating what I had to go through in order to still be here today. But thank you for your concern and i'm sorry to hear about what happened with your kid; glad he/she is alright and also pulled through.
  22. 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.
  23. 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!!
  24. 4 points
    Thank you to all that helped me along the way, case dismissed with prejudice!
  25. 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!
  26. 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.
  27. 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!
  28. 3 points
    A quick update: Following Firsthardcheese's advice, I sent the mutual dismissal letter and I was contacted by the JDB's lawyer. We agreed to a mutual dismissal with prejudice and a removal of the trade line from my credit report ! I checked the court website and saw their dismissal was filed on Feb 27th. I agreed to dismiss my arbitration (which I advised AAA to do). So Wow - this is a big relief. I could not have done this without the help of this forum - Thanks everyone ! I'll still be checking in if anyone has any questions or if I can offer any advice. I posted a copy of all of my redacted docs earlier in this thread.
  29. 3 points
    Because that part isn't your debt - they can charge legal fees, since they had to incur those costs to collect, but they can't charge you for what they bought it for, since they did that to make money. It's like if you buy a used car for 1K and fix it up so it's worth 4K - you aren't going to say "I want 5K - the 4K it's worth plus the 1K I paid for it."
  30. 3 points
    Quick Update. Plaintiff's lawyers for PRA didn't show up in court. I'm sure their strategy was to assume it would be dismissed for WOP w/o Predjudice so they could refile and possibly have a second bite at answering We explained to judge that Plaintiff didn't respond to discovery and we were prepared to strike any evidence they attempted to admit. Convinced judge to dismiss w/ prejudice.
  31. 3 points
    Happy Thanksgiving everybody!
  32. 3 points
    If there's some legitimate racial basis for why you stopped paying your Discover bill, you need to speak to a civil rights attorney ASAP. Otherwise, your ethnicity and that of the arbitrator is completely irrelevant to your arbitration case.
  33. 3 points
    Would just like to chime in here, and not break the law by disclosing anything and this more pertains to JAMS. Before people weigh in and state I could have asked JDB to pay my JAMS fee, as that would have been an option considering the synchrony arb agreement, I had put money aside in the case of paying my JAMS filing fee and paid because A. the judge's ruling in my particular case was a bit finicky and B. had it NOT been for JAMS emailing both parties and their representatives I am not sure I would have ever received the outcome I had been looking for. So in some crucial way JAMS does have a very vital role in this and thus, was happy to pay for JAMS was sort of the push I needed. For future people this is the JAMS "cancellation policy" and perhaps this has been invoked due to so many people using this forum, I don't know lol;) Please note that the filing fee for this matter is still due. If a matter is withdrawn within five days, the refund is $600. Therefore, the current outstanding balance for the filing fee is $250 on behalf of the Claimant and $350 on behalf of Respondent per Consumer Minimum Standards policy. Just so people are aware, and truly this was the smoking gun so to speak so bless JAMS on some level. Lastly my final question is and prob goes to experts out here as far as removing debt trade line, is there a certain time frame everyone suggests, ie wait ninety days then send a letter to credit bureaus, or can it be as soon as a month? and do you all suggest including signed paperwork? or simply stating I "am no longer liable for this debt" and keep it simple Sam...? And once again hugest shout out to @SJULawAlum seriously anyone in NY he's an actual encyclopedia on NY law, amazing attorney, as well as person and STILL can't believe I was lucky enough to find him... And of course can't reiterate enough my continued gratitude forever to those that have been with me on this journey since the beginning of this year...not only was the forum a beyond useful source and fountain of information during an insanely stressful time, I TRULY don't think I could have made it out alive without any of you... @Brotherskeeper @fisthardcheese
  34. 3 points
    Midland's attorneys got a letter from JAMS requesting a $1,250 fee. Amazing how quickly Midland came back with a stipulation of discontinuance with prejudice and a full release of the claim lol.
  35. 3 points
    I won. The judge dismissed both cases against me, told them that the burden of proof was on them, and that they came to court unprepared, since they did not bring a witness with them that could testify to the legitimacy of the records. The second one asked to approach the bench afterwards, and was asking the court what they would have to do to prove the debt and why an affidavit would not count. The judge told him that if debtor admits to owing the debt, that it's not a problem for them, but that if the debtor objects to the amount the owed, or claims the debt is not theirs, then the burden of proof falls on them to prove they own the debt and that the records are accurate. The first one kept telling me "We'll let the judge the decide" because she asked me if I objected to her admitting records, and I told her that I didn't object to her admitting those records, but that I objected to the whether they could confirm the accuracy of the record. Again, the judge told them that they came to court unprepared and that it was not on me to prove anything. That particular lawyer was NOT happy. But I want to thank you BV80 and fisthardcheese, because I wouldn't have been anywhere near prepared without the two of you. Thank you thank you thank you!
  36. 3 points
    Thank you very much for your contribution to help TN members with state specific information. We need more people to do this, as each state can have very specific requirements (as you have learned). This is a great post for TN defendants. Everything you have done looks perfectly good. The only thing I would add is to perhaps include some state specific case law in your MTC. If you can find a TN case or a 6th Circuit case showing arbitration is an absolute right when a valid agreement exists, I would include that right above the SCOTUS case law. Otherwise, everything looks spot-on. Absolutely nothing. You want arbitration, so these items do not apply. If you were trying to AVOID arbitration, these sections would be used by yourself to show it isn't required of you.
  37. 3 points
    You defaulted on a credit card, waited until their 30% offer expired to call them, and now you want to sue them because they will will only give you a 60% discount and not 70%? It's a great time to be alive, everyone. (You can sue anyone for anything, although i don't know what your cause of action would be based on. In any event, you can expect them to turn right around and sue you for the full amount of the debt, plus legal fees and court costs. I'd probably just be happy with the $300 instead of $750, but I'm old fashioned that way.)
  38. 3 points
    Right - we all know I'm the one working for Midland - Harry just moved to Unifund.
  39. 3 points
    Congratulations! 👍 Thank you so much for informing us of the outcome. That’s a benefit to other consumers who come to this site.
  40. 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).
  41. 3 points
    @Robby8900 I added "in Ohio" to the topic of this thread to help make it easier to find in a search.
  42. 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
  43. 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.
  44. 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.
  45. 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.
  46. 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!
  47. 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.
  48. 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.
  49. 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!!!!
  50. 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!