Popular Content

Showing content with the highest reputation since 06/10/2020 in all areas

  1. 2 points
    Okay everyone, First of all Happy 4th of July! Just to follow up, We were scheduled for a case management conference on 6/29/20. On the 25th We were notified that they have asked for dismissal of the lawsuit. A win! yesss!! But I believe I need to now ask for dismissal with prejudice correct? Because they asked for dismissal without prejudice. If that is the case can anyone point me in the direction of how to go about getting a dismissal with prejudice? Thanks again!!!
  2. 2 points
    Rausch, Sturm, Israel, Enerson & Hornik is historically the laziest law firm in Texas. In the vast majority of cases they completely stop doing anything upon receipt of discovery. It is highly unlikely that it will ever get to the point of an actual trial. They do not need to enclose any "evidence" when they file the law suit. It is good that you filed your general denial but don't just sit and wait for something to come to you. You need to decide if you want to fight them in court or go through arbitration and immediately get the upper hand and get things rolling.
  3. 2 points
    Technically, IMO, if the defendant files a motion to dismiss and the plaintiff fails to respond, which was the case here, the motion should have been granted. But you got a stay, which is a victory. File the arb with JAMS.
  4. 2 points
    My rule is whenever I hear from a collection agency, I send a DV letter. Always. Especially since there is already a suit.
  5. 2 points
    You can want something all you want, that does not mean it is not going to happen. The way I see it, the lawyer is correct. The only 3 options you have are to let them garnish your paycheck, try to settle the debt, or declare bankruptcy. You are not going to get this vacated because this is a proper judgement which has not reached the statute of limitations for judgements. Here is why I think the lawyer is correct: You were properly served You went to court and presented your case and the judge found against you or you signed a consent judgement as a settlement. Either way, you lost and a judgement was issued against you. If the original debt SOL had passed, you should have brought that up in 2007, not now. You usually have 30 days to appeal a ruling against you. You did not do that. The SOL for a judgement in Florida is 20 years so that has not passed yet. I see nothing wrong with the judgement or the manner in which it was issued. If you try to get it vacated, the judge is going to laugh at you so don't waste your time. If this is not what you want to hear, then you are in the wrong place because we will tell it like it is without any nonsense and in this case, you cannot do anything at this point except pay the debt, including the 13 years of interest which I sure has been added. The debt collector does not have to offer a favorable settlement to you because they hold most of the cards and you really have no leverage here.
  6. 2 points
    No, you have not gone too far in litigation for arb, especially if you object to their discovery. See the case Land v. Byrider for an analysis of waiving arb rights by going too far in a court case. Be sure to ask for a stay pending arb, as the arb law is very strong on this. It mandates a stay if the case is subject to arbitration.
  7. 2 points
    I would recommend contacting the Clerk for the Court of Appeals, Cynthia McCoy, at (804) 371-8428. If this leads nowhere, the next step up would be the Office of the Executive Secretary, Karl Hade, at (804) 786-6455. This office handles the training of all judicial branch employees, so they should want to know if employees are denying litigants their right to file an appeal. Luvmybabas... I'm so sorry you've been dragged through this mess because of a judge who couldn't be bothered to look at your agreement. Start making your calls early tomorrow. The office for the appeals clerk opens at 8:15 A.M. If you can't reach anyone there, call the Executive Secretary's office. Leave messages and be sure to tell them you have a filing deadline that day and the clerk for the district court has refused to file your appeal. It's also important to keep a log of your calls, who you left messages for, who you spoke with, and what was said.
  8. 2 points
    You’re very kind. We all post here because we’ve been through what you’re going through. Paying it forward can include any act of kindness whether it’s helping people here, elsewhere, donating to a charity, etc. Helping people like you makes this worthwhile for all of us.
  9. 2 points
    Again, I see this as an over-complication of a simple issue. The contract clearly states you are only responsible for fees required by the AAA rules. The AAA rules are very clear that you owe $200 and nothing more UNLESS found to be frivolous. Nothing about the act of starting an arbitration case for a genuine dispute can be frivolous. It's their own contract. THEY wrote it. Too bad if they don't like it being used in the rare case it does not benefit them now.
  10. 2 points
  11. 2 points
    @MikeS This Ohio thread has a lot of useful information and links to other Ohio threads, including @MikeB35 cases.
  12. 2 points
    The judge you appeared before didn't even allow you to present your agreement to the court. Don't allow the act of an A-hole judge to discourage you from moving forward on this.
  13. 1 point
    Yes, I have been through arbitration 4 times for 5 accounts. 1 time was settled (2 accounts) before any fees were paid. Twice settled well into arbitration. Once was right before the hearing (a great time for settlement!), the other time was right after discovery, when the opposing counsel saw that my wild claims were actually true. I asked him if he could explain his client's behavior. He said no, and we settled ASAP. I somehow came into some money, and had a vacation. Cap 1 and their allegedly corrupt law firm Messerli & Kramer walked away from the case, which was dismissed. 5-0 record. It seems intimidating because it is something completely outside your comfort zone. I spent a long time learning the process. I spent hundreds of hours on the process. By that time I knew what I was doing better than many attorneys, so I wasn't intimidated anymore. If you follow the templates given, you should be able to handle the process. That is, unless the judge rules you have waived your rights to arbitration by participating in discovery. Most judges will do that. Some won't. As I said, at this point an MTC is a Hail Mary pass. If it works, you win. If not, you lose.
  14. 1 point
    Start your own thread for better help and include who the original credit card was with - what bank - and what year did you first default on the account. You can also read the link in my signature below for further info on where to start.
  15. 1 point
    If I got a letter from a new collector on a debt already involved in a pending lawsuit, I'd already be browsing online for what to spend my $1000 on LOL
  16. 1 point
    There is only one filing fee in arbitration regardless of how many claims. Their counter claim will be free. It might. If they are reporting it as a closed revolving account I would argue that is inaccurate. Are all of the dates and amounts the same across all 3 reports? That is where I used to find a lot of violations. JDBs would report a dollar off on 1 of the 3 reports, or a date would be a day or two different on 1 of the 3. Before being considered a violation, however, you must dispute the error with the CRAs. If you must file in JAMS before getting the results back from your CRA disputes, then you can file as FCRA violations and amend as needed. If none of that pans out, just use "credit card dispute". It's not as strong, but this is a JDB in JAMS so it isn't going anywhere anyway.
  17. 1 point
  18. 1 point
    Oh If I had seen this was Synchrony I would have said file now. So, file now. I wouldn't wait. It will cost you nothing so why wait? Even if they appeal - which would be a losing endeavor - you just email JAMS and ask them to put a hold on the case pending the appeal of your MTC. When I file any arbitration case, I simply include a short and sweet cover letter that says I am submitted a new consumer arbitration case and that the enclosed contract states that the company will pay all arbitration fees and request that JAMS bill the company the full filing fee. This is all that needs to be said on the matter. JAMS will properly bill the JDB.
  19. 1 point
    In terms of bankruptcy, medical debts might be classified as “business debts”, but the 6th Circuit’s ruling in Haddad v. Alexander, Zelmanski, Danner & Fioritto made no reference to that. Perhaps it’s because of a requirement in bk of “voluntarily incurred”? The FDCPA makes no such distinction between voluntarily or involuntarily incurred.
  20. 1 point
    That sounds about right to me. Hopefully, @fisthardcheesewill chime in.
  21. 1 point
    This is a legally baseless reason to deny arbitration. There is a ton of case law that supports this being a blatant error on the Judge's part. Show that case law to an appeals court and your denial will be overturned.
  22. 1 point
    I disagree with this one. Unless the OP started in arbitration before the case was filed. It is doubtful that a MTD would be granted, while an MTC would probably be granted, unless the judge ignores the law. One possibility is a combination of: 1. An answer, with lack of venue as an affirmative defense 2. A MTD for improper venue, and 3. An MTC. The idea is if the MTD is not granted (and it almost certainly won't be), the MTC is filed as an alternative to the MTD. I wouldn't file a second MTD, though, at least not as a standalone filing.
  23. 1 point
    Normally, it is NOT too late if you have not already filed an answer. The only restriction I can find is they cannot use arbitration in small claims, but you can. File an MTC along with your answer, and include an affirmative defense of improper venue. Realize that some judges just do whatever they feel like doing, no matter what the law actually says.
  24. 1 point
    I don’t think you can sue the supervisor. I would get a consultation with a consumer attorney. It’s possible you could file the appeal after 10 days by showing good cause as to why your filing was late. I would also be filing complaints about that supervisor with every person who is over her.
  25. 1 point
    Please note that this is not a good idea in every court.
  26. 1 point
    And you would have had the same result. The courts in VA are very creditor friendly and this outcome was virtually guaranteed.
  27. 1 point
    I feel for you. I also admire you for not giving in.
  28. 1 point
    I would have just filed the appeal at the next court up from the district court and let that court know that you were not being allowed to file an interlocutory appeal.
  29. 1 point
    The attorney know the court is gonna grant your motion to dismiss, however, the last sentence he states, if the court grants your dismissal that the plaintiff, request a stay of the case for 60 days. That's where you ruin his day, with Capital One v. rotman. He will still have to initiate the arbitration clause, its the plaintiffs burden.
  30. 1 point
    Anything you can point me to for me to start reading? I'm reading one for Michigan right now but you just helped someone through this in Ohio recently right?
  31. 1 point
    I can see on the PRA suit that the attorney has filed a brief in opposition. It doesn't look like the clerk has uploaded the document yet. I'll update the thread when I have it.
  32. 1 point
  33. 1 point
    I was going to say that I would rather be in arb. where the rules are less strict and I will be more comfortable and less nervous?? what do you think?
  34. 1 point
    That line just means that there is nothing else pending in that court. Now you appeal since the judge ruled in error.
  35. 1 point
    "Plaintiff also lobbed several insults and accusations at Defendants, which supports an inference that she sought to embarrass or annoy them. See Pl.'s Mot. 17, 18, 30, 31, ECF No. 32 (accusing Defendants of being unethical, allowing the filing of a false affidavit, "demonstrat[ing] an absolute willingness to corrupt their claims and misrepresent and deceive the court," and being "corrupt"); Pl.'s Reply 12, ECF No. 46 (stating that Defendants "are complete idiots" or acted "in bad faith," "do not take their obligation to tell the whole truth seriously," and "[h]id[e] behind unsustainable objections and us[e] half-truths to tell whole lies."). Plaintiff brought these claims in bad faith and for the purpose of harassment."
  36. 1 point
    "A frivolous case is one that is groundless . . . with little prospect of success; often brought to embarrass or annoy the defendant." United States v. Manchester Farming P'ship, 315 F.3d 1176, 1183 (9th Cir. 2003) (citation and internal quotations omitted).
  37. 1 point
    I think you are reading too much into it. Every single arbitration case I have had, the other side ALWAYS claims it is "frivolous" simply because that is the ONLY way that fees can be reallocated in AAA. They simply always throw it at the wall in hopes that it sticks. It wont. As part of your response, just state that you have complied with all aspects of the court and the contract with PRA and that in no way can this be considered "frivolous". Of course, me being myself, I personally would add in for my own amusement something like "if Respondent honestly believes the actions of Claimant are frivolous, then Claimant would ask Respondent why they would ever create or involve themselves in a contract that is patently frivolous against themselves from the outset?" I could not disagree more strongly. The only way we advise using arbitration on this site is to follow the letter of the contract AND well established case law. There is no way that following those two things by the book can be considered frivolous in any way.
  38. 1 point
    If this case is still open and only the MTC was denied at this point, then you need to file what is called an "interlocutory appeal". This is what allows you to appeal the MTC decision only without having to wait until the full case is over. The interlocutory appeal allows a higher court to look only at the MTC issue and may be completely different than the normal appeal rules and fees.
  39. 1 point
    Of course they are deemed admitted if one decides to fight the case in court and does not answer them. I was under the impression that this OP wanted to use arbitration. What little I know about arbitration I have always understood that if they participate in discovery then arbitration could be rendered null and void. They should answer each item with "Objection- Defendant has elected private contractual arbitration per credit card agreement" or something along that line. No it will not just automatically go to arbitration. As I said follow @fisthardcheese's instructions that @Brotherskeeper posted earlier.
  40. 1 point
    It doesn’t matter that you didn’t have an agreement with the plaintiff. Read your cardmember agreement. It will contain language that shows the account can be assigned or sold and that the terms, conditions, and rights transfer to the new owner. Because of that language, you do have an agreement with the plaintiff. In a lawsuit in which arbitration is not made an issue, the plaintiff would be required to prove it owns the account in question. In your case, the plaintiff is not going to claim the cardmember agreement does not apply. The reason is because to do so would be the same as claiming it did not purchase the account. It cannot claim it has a right to the balance but does not have to abide by the terms and conditions of the account it claims to have purchased.
  41. 1 point
    No, it will not suffice for answering their discovery. The General Denial is the answer to just the lawsuit itself to prevent you from being slapped with a default judgment. File the General Denial immediately then decide whether you want to defend yourself through arbitration or as a pro se in the court. If you choose arbitration do not answer the discovery items as that could invalidate the arbitration. Scroll up to where @Brotherskeeper posted @fisthardcheese's instructions on how to initiate arbitration.
  42. 1 point
    I assume if that happens I'll just be reiterating that SCOTUS case law demands these disputes be settled in arbitration? Shouldn't be much more for me to say.
  43. 1 point
  44. 1 point
    There might not be a bond on this appeal since no judgement has been made yet on the debt but there will be court fees (that is true in any state where you appeal a decision). Why you are appealing is the decision to deny the Motion to Compel. You are appealing that because: The CFPB has made a rule requiring all credit card companies to submit to them all credit card contracts which they put on the their website for consumers to use. That is where you got this contract with the arbitration clause and is a valid copy of the contract, The plaintiff simply said that the contract did not have an arbitration clause but did not provide a copy of the contract. Under the US Supreme Court ruling, when a contract contains an arbitration clause, the state courts do not have jurisdiction over the case and the parties must arbitrate. You will then have to prove the above facts. If the appeals court does not side with you, you go to trial. If they do side with you, they will probably remand to the lower court requesting that the judge reconsider the motion in light of the arguments made at the appeals level. The plaintiff still can get a copy of the contract without the arbitration clause in the meantime. Looks like the filing fee is $50 in Virginia so that is not too bad. If you have a some money (say about $500), I would offer to settle the debt and see if they bite.
  45. 1 point
    @Luvmybabas Here is a post from the other thread you started and abandoned:
  46. 1 point
    Here's a page from Fairfax County that may be extremely helpful. It appears to outline the process, including the bond: https://www.fairfaxcounty.gov/generaldistrict/civil/appeals For Non-Residential Unlawful Detainer cases: A judge will determine the amount of bond, if any, needed to file an appeal. It also says the DC-475, Notice of Appeal form, is available at the Clerk’s Office for noting an appeal. I'm still trying to find the updated version online.
  47. 1 point
    OK, quick question, did the judge simply deny a motion to compel arbitration or did the judge find for the plaintiff on the debt and issue a judgement? If the later, you probably have to post a bond. If the former, you might not have to post a bond because no monetary judgement has been issued yet.
  48. 1 point
    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.
  49. 1 point
    Thank you for this! I will file my Notice of Appeal on friday. After that its a waiting game. Once the clerk of my court gets everything to the clerk of the court of appeals, I'll have 30 days to file my brief. That will be the next big step. I'll keep this updated. Thanks for your help.
  50. 1 point
    sounds good... but I don't have pineapple juice or grand marnier