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Showing content with the highest reputation since 03/09/2020 in all areas

  1. 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.
  2. 3 points
    Just got six month pay cut at work. We have one CC with a balance of around a grand. Thinking of paying that off with savings and then trying to save at least a portion of the 400/month I was paying on it.
  3. 3 points
    Till Labor Day or the collapse of Civilization, which ever comes first - just like for everything else.
  4. 2 points
    All of my credit card creditors have given me a 30-day deferral (all but one, but I missed the due date on that one so they told me to pay the missed payment and then to call back before the next payment is due). My mortgage company gave me a 3 month forbearance that I will have to repay after the 3 months. They said they will work with me on a repayment plan after the 3 months. I have started a new business that appears to be doing well, so I shouldn't need more than these first 30 days, but I'm interested in hearing how everyone else that hasn't been able to work is managing.
  5. 2 points
    Along with what was stated by @Brotherskeeper, it’s what @fisthardcheese stated, as well.
  6. 2 points
    This depends on the state. In Wisconsin, the plaintiff must provide an accounting from zero balance to the current balance, certified by someone with knowledge of the account, if requested by the defendant. That means whatever the judges say it means. I had a very pro-consumer judge throw out the affidavit from Crap1 because it was signed by a “legal support specialist “, and the judge ruled that such a person did not have first hand knowledge of my account. Crap1 abandoned that case. No NDA so I can talk about that case. Later, some bigger judges ruled that the accounting requirements only applied to OCs and not to JDBs. So, amazing but true, there were suddenly a lot more OCs selling accounts to JDBs in Wisconsin. Would a strategy of demanding accounting to zero balance work in California? I don’t have an answer to that. It would take some homework on the part of the defendant
  7. 2 points
    Law firms don’t usually purchase debts. They strictly represent clients. If Cap1 is the plaintiff, then Cap1 is suing.
  8. 2 points
    I was asked about my postings in a deposition once. I used a technique that had been recommended. For that particular case, I did not post very many things. In those days I usually posted on the "other" forum. But since I was facing a depo, I created a new user name, and posted once about that case on this forum. In the depo I was asked if I had posted anything online about the case. I replied that I had posted on CIC. They asked, in a rather derogatory manner, what the purpose of CIC was. I said it was a credit repair web site. In short, everything I said in the depo was true. Some other techniques: It is often a good idea to be a little vague about your case -- don't give up any personal information. That makes it more difficult for them to figure out who you are. There have been a few times when I was able to figure out who the poster was rather quickly. And if I can do it, you'd better believe they could do it. For example, there was one time when a poster in my county posted enough information that within a few minutes, combined with online court records, I had her name, her address, her date of birth, and even the VIN for her car. I also figured out that she had missed an important hearing that morning, and I alerted her. She wound up with a default judgment. Another poster gave her some advice on how to get the default judgment vacated. She eventually won that case. Another example. There was a rather notorious poster in my state who was absolutely hated by some of the law firms. His user name on CIC was the name of a small company he owned. With that information, I was able to figure out who he was in a few minutes, and I even found a magazine article that had been written about him when he was a teenager. He was a small level elected official, as well (he has a higher office now). It turns out one law firm was checking posts on CIC, and noticed a pattern of posts which corresponded to events in their case. As in, someone would make a filing, and he would post about that filing on CIC. The attorney spent thousands, perhaps tens of thousands, searching CIC for posts regarding the case. At the depo they asked if he had made the posts. He said he had. It did not affect his case any. My biggest mistake was I was so scared of the law firms figuring out what I was posting that I was often reluctant to ask advice when I needed to. That cost me big time in a case once. So please don't make that mistake. You are allowed to ask questions, and to get advice and information. I was too scared. Not all law firms will look. Not all firms that look will find you. If they do find you, it is not necessarily something bad for you. Just don't be stupid in what you post. There was a rather famous example in Debtorboards in which a poster used the forum to taunt the opposing counsel continuously during the case. The opposing attorney asked Judge Susan Webber Wright to put a gag order on the poster. The judge refused on First Amendment grounds. However, at the end the judge imposed over $60,000 in sanctions. This was one of the last cases for this famous judge. The moral -- don't be afraid to post, but try to keep as many detail as vague as possible. For example, remove your name and the exact amount from any postings. And don't post anything you wouldn't want a judge to read. Asking for advice is OK. Saying "I'm going to make this lawyer pay" or "this lawyer has a nice rack" are NOT things to ever post.
  9. 2 points
    Capital One removed arbitration from its agreements in 2010.
  10. 2 points
    You did attach the agreement to your MTC? If so, I would throw the language in the agreement along with AAA’s rules back on their face. The following is stated in the credit card agreement: 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (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. AAA’s Rules R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee Neither the arbitration provision in the credit card agreement or the rules of the American Arbitration Association (AAA) require that a case be filed with AAA case filing services before a filing a motion to compel arbitration. In fact, it is stated in the Barclays credit card agreement that “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.” As shown by the arbitration provision, arbitration may be pursued through a Motion to Compel in court. It is not stated a case must first be filed with AAA. The following is Rule R-2(a)(3) of the AAA. R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee The rule specifies that arbitration may be started “pursuant to a court order.” As with the arbitration provision in the credit card agreement, there is no mention of filing a case with AAA before a court order can be issued. Therefore, Defendant has complied with both AAA’s rule and the terms of the arbitration provision in the credit card agreement. The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Plaintiff has provided no evidence that AAA’s rules require a case to be filed with the arbitration forum prior to filing motion to compel arbitration with the court or before a court may rule on the motion. Wherefore, Defendant respectfully requests the Honorable Court grant Defendant’s Motion to Compel Arbitration and deny Plaintiff’s Motion for Judgment on the Pleadings or, in the alternative, Summary Judgment.
  11. 2 points
    This is getting into the realm of psychology here. I would always show up in person to argue a motion, on the premise that the judge could see me as a real person, as opposed a disembodied voice. Even when the opposing party phoned it in. The judge probably has met all the lawyers. In current times, a judge might a LOT happier without humans in the courtroom. After all, judges are often quite old. Often times, when lawyers are about to retire, they work as a judge for a while. I had a great-great uncle in central TN who was on the bench until he was about 90
  12. 2 points
    This Indiana Supreme Court case has been cited 467 times according to Google Scholar: Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). '" . . . .Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). "A fact is `material' if its resolution would affect the outcome of the case, and an issue is `genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted)."' INDY AUTO MAN, LLC v. KEOWN & KRATZ, LLC, 114 NE 3d 32 - Ind: Court of Appeals 2018 "Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Our Supreme Court has cautioned that "[a]s long as competent evidence has been designated in response to a summary judgment motion, ... `weighing [the evidence] —no matter how decisively the scales may seem to tip—[is] a matter for trial, not summary judgment.'" Stafford v. Szymanowski, 31 N.E.3d 959, 963 (Ind. 2015) (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of evidence—of the facts— is required, then summary judgment is inappropriate."
  13. 2 points
    First, it would help if you could answer the questions listed here: I would wait to be served and answer the summons in court. And use the time you have now to research strategies. If arbitration is available, that is the best way to beat a JDB.
  14. 2 points
    So I did this and lit a fire and they sent me the mutual dismissal of claims with prejudice, I signed it and sent it back but it has not been filed and it has been over a month since I sent it back. I then emailed them about 2 weeks ago and haven't heard back. Am I okay to go ahead and file the JAMS form or do I have no recourse now that I've signed the MDOC? I'm nearing the 6 month deadline the judge established. I thanked you for your previous answer with the Thanks button but thank you again for taking the time to answer my previous question. And thanks in advance.
  15. 1 point
    I, personally, am doing OK for now financially. Nobody in the family is sick AFAIK. I feel really bad for relatives in NYC who are stuck in tiny apartments for weeks on end with no escape. Most of my kids are out of work and having trouble getting the money they will need for college in the fall. Things will get quite tight in the fall. The kids have been getting help from grandparents, who have depended on the high stock market to help out their grandkids. So I expect the kids to take on a very heavy student loan burden. I also expect things to be extremely tight with my wife and I helping as much as possible. We may have to take on a hit if debt ourselves at a time when we are getting close to retirement age. We were completely wiped out in the 2008 crash, and it took many years to get into the black. Our retirement plans were pretty much destroyed in that crash, when we lost the rental properties which were supposed to give us some income during our retirement. Now we are finally starting to save a small amount of money for retirement we may lose that. I am too old for this. One of my kids was out of work for a while but has already been called back. I already discussed with him how to delay student loan payments, car payments, etc if he were out of work for too long. It appears he may not need any help at all.
  16. 1 point
    @cedric_86, @BV80 From the Compelling and Staying Arbitration in Indiana white paper I posted on the first page of this thread: THRESHOLD ISSUES FOR THE COURT TO DECIDE When deciding an application to compel or stay arbitration the court plays a gatekeeping role that is limited to determining whether: The parties have a valid and enforceable arbitration agreement (see Valid Arbitration Agreement). The dispute falls within the scope of the parties’ arbitration agreement (see Scope of Arbitration Agreement). (See Harlow v. Parkevich, 868 N.E.2d 822, 826 (Ind. Ct. App. 2007); Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 284-85 (Ind. Ct. App. 2004) (citing Mislenkov v. Accurate Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001)).) The court may also determine whether the party seeking arbitration has waived its right to arbitrate by acting in a manner inconsistent with the right to arbitrate (see Waiver). Indiana courts resolve every doubt in favor of arbitration (see Nightingale Home Healthcare, Inc. v. Helmuth, 15 N.E.3d 1080, 1085 (Ind. Ct. App. 2014)). However, the court may not compel arbitration by a party that did not agree to arbitrate the dispute (see Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 416 (Ind. Ct. App. 2004)). Under the IUAA, once the court determines the parties contracted to submit their dispute to arbitration, the court must compel arbitration (Ind. Code § 34-57-2-3(a); see Daimler Chrysler, 814 N.E.2d at 285). The arbitrator, not the court, resolves disputes about procedural preconditions to arbitration, such as delay or waiver of the contract containing the arbitration clause (see BG Grp., PLC v. Rep. of Argentina, 572 U.S. 25, 34-35 (2014)). Courts also leave the threshold arbitrability determinations to the arbitrator if the parties’ arbitration agreement clearly and unmistakably delegates these issues to the arbitrator (see Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70-73 (2010))." WAIVER Under Indiana law, a party may waive its right to arbitrate a dispute that is otherwise arbitrable under a valid arbitration agreement. Even if a party does not waive arbitration in express terms, the court may find the party impliedly waived its right to arbitrate because of the party’s actions. (See Safety Nat. Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1004 (Ind. Ct. App. 2005).) To find waiver, the court must find the party acted inconsistently with its right to arbitrate by engaging in court litigation (see MPACT Const. Grp., 802 N.E.2d at 910). The factors the court considers include: The timing of the arbitration request. The filing of any dispositive motions. Whether the party seeking to arbitrate is unfairly manipulating the judicial system by attempting to obtain a second bite at the apple due to an unfavorable ruling in another forum (See Finlay Props., Inc. v. Hoosier Contracting, LLC, 802 N.E.2d 453, 455 (Ind. Ct. App. 2003).)
  17. 1 point
    Yes, your motion to compel arbitration is a genuine issue of material fact. Granting summary judgment is an adjudication on the merits of the case. What you’re not understanding is that the court must decide your motion before it can decide on the MSJ. Check you rules to determine when motions are to be heard. This is from the Federal Arbitration Act. If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." 9 U.S.C. § 3. From the U.S. Supreme Court. “The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement.” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-27, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). The judge must stay the proceedings. He does not have the right to adjudicate the plaintiff’s claims. If he were to grant the MSJ, he would be in conflict with the FAA and the Supreme Court That is a genuine issue that prevents him from granting summary judgment. Are they claiming you waived the right to arbitrate? If so, the IN Court of Appeals has ruled that the issue of waiver is to be determined by the arbitrator. I’ll have to get back to you with case law on that.
  18. 1 point
    @SJULawAlumI'm sending a pat and a high five--from the appropriate social distance of course!
  19. 1 point
    I believe Yolo is simply looking to figure out what would work best for their trial brief, not what the winning argument will be in court. Serving/filing a trial brief & written objection are part of the strategy in CA; when served ahead of time, I've noticed plaintiffs are more likely to dismiss before the trial date, which is of course preferable to dragging things out until the morning of trial/showing up to the courthouse, etc. Not a bad idea to make the brief as solid as possible.
  20. 1 point
    In granting my motion for summary judgment today, the judge included several references to my postings on this site. "In April 2015, xxxx posted on www.creditinfocenter.com that he had received a letter from Asset Acceptance with this language and declared “Happy Statute of limitations birthday to me.”" This site is cited a couple of other times in the memorandum order. I have attached the ruling if you want to be geeked out with 26 pages of legalese. Just want to make it abundantly clear for everyone that posts here to realize: 1. Your online activity can be/is tracked and will be used by an opponent to discredit anything you say, or in my case allege that I was too smart to be tricked or that I essentially acted in bad faith. 2. If you are ever deposed and you are asked if you've ever posted online, be honest. They (the opposing side) already know the answer, and likely have a folder full of your posts that they will want your thoughts on in a few moments. 3. Remember why you joined this site: to get help in dealing with debt collectors or collection suits. 10+ years ago, my family was in the darkest corner in the deepest cellar of our lives. I never wanted to join a site like this; I never wanted to struggle each and every day for years. We barely hung on, but we did. When the collection suits came, I didn't know what to do or where to turn, but what I DID know is that inaction would be the most expensive choice I could ever make. I'm glad that I joined and was able to prevail in the two collection suits filed against my wife and I and that others decided we weren't worth the time or effort and decided to more or less leave us alone. I am more proud that I was able to help many other people throughout the State and save their families many of thousands of dollars and give them confidence and a bit of relief. I have always fought for my family and I always will. I hope you do too. Stay safe, stay well ~ KW Memorandum Opinion & Order of 3-26-20_Court-Orders(1).PDF
  21. 1 point
    Good for you. At this point your goals are: 1. Be healthy. The case may be delayed for a few months. That is a mere inconvenience. 2. Do what needs to be done. 3. Don’t do what shouldn’t be done. In a recent thread I mentioned a notorious case of a guy who blew a slam dunk case and wound up with over $60,000 in sanctions against him due to using his postings to harass the opposing counsel. Stuff like using locker room language to describe a female attorney. Not smart. Keep the updates short and neutral. “Filed the case today” or whatever. Not a word about your feelings. The less said the better. In the end, it is not uncommon for people to simply mention that a case has been settled, and/or they will not discuss the case anymore. We all know that means a non-disclosure agreement. I have done that a few times myself. Never post anything you wouldn’t want their opposing counsel and the judge to read If you have already posted anything in that category, edit your post to remove any improper comments And, right before you sign a settlement with an NDA, just post something to the effect that you will no longer make any posts on the case. We can read between the lines and will be happy for you.
  22. 1 point
    Got a call at 8:09 this morning telling the judge is postponing all hearings until at least June 1st due to Covid. About time! He has been holding court daily!
  23. 1 point
    I wouldn't listen to that. BK is a pretty extreme option when you live in a state that has great laws for a consumer in this type of case. CA residents have a great track record against these lawsuits. They'll most likely file suit, keep an eye on your civil court's website. In the meantime you can determine if arbitration is an option - if it is, great, because that seems to be the quickest way to deal with it. If not, that's fine too - the CA Civil Code stills favors you, but the trial route takes longer/is more involved.
  24. 1 point
    The MSJ mentions T.R. 56(E). Rule 56 is the Summary Judgment rule. (E) Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered. All that means is that your response to the MSJ cannot rely on your general denial. Now that an a MSJ has been filed, you have to do more than rely on your denial. You have to set forth facts that show the judge there is an issue of material fact that prevents him from granting their motion. I suppose you would include an affidavit. A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant's motion. Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 203-04 (Ind.2003). Unifund only claims you didn’t follow AAA’s rules. They did not provide a rule that shows you are required to file a case with AAA and pay the filing fee in order for the court to issue an order to arbitrate. Where is that rule they claim you didn’t follow? As the moving party, Unifund has not met its burden of showing that there is no genuine issue of material fact that would preclude summary judgment in its favor. You can provide the AAA rule that shows arbitration can be started AFTER receiving a court order to arbitrate. That, in my opinion, is the genuine issue of material fact that does preclude summary judgment.
  25. 1 point
    Important— when did you open your Cap 1 account? If it was after 2012 you won’t be able to arbitrate
  26. 1 point
    Congratulations! I am so glad I could help. Keep all paperwork from this hearing for at least a couple of years past the SOL expiring to sue again. That way if they do get stupid and try again you have it ready at your disposal.
  27. 1 point
    A "stay" isn't a total moratorium on all motions. Obviously continued litigation on the merits would be out, but a motion to dismiss would have to be entertained if the facts supported it. Same with a motion to compel. Given that court sponsored mediation is a right available to all parties, and does not have a presumption of undue prejudice on any other party, i don't see why a motion for this would have to be denied under the "stay" language of a.r.s. 12-1502. I also don't believe it would be an abuse of discretion had the judge denied the motion for the reasons you gave. In any event, the issue at this point is with the court for granting the motion - not with velocity for making the request.
  28. 1 point
    No, it's a boilerplate template a busy law office uses for every single case. You are reading too much into it. The only things that matter here is a pending MSJ that needs to be properly responded to immediately, and your pending MTC which should be taking precedence and mentioned in your Opposition to MSJ as THE underlying reason MSJ should be denied and the main material issue for the court to handle. Stop focusing on all of the tiny insignificant side issues before you lose the MSJ just like they have designed.
  29. 1 point
    Thank you very much for your efforts on my behalf. I called MCM @ 10:51,told them of my situation,and was put on "temporary hardship status",I wrote down the person's name I spoke with,he was gruff,but not too bad. He then gave me a second phone number to provide any documentation they may require,I also recorded the name of that lady,SHE was very pleasant,and after hearing my information,doing several security questions she assured me that the account was put on permanent hardship and that all collection activities will now cease. I asked her to please send me a verification of that statement and she assured me she would. I'm assuming she has to,based on the recorded conversation. I very much appreciate your advice and wish I could high five you. With much relief ~Don
  30. 1 point
    Midland has a policy If you are in bad financial shape because of medical reasons, they will drop the case. At least one poster has had debt forgiveness this way, possibly more. Look up the Midland web site. Find the policy on the web site. Then contact Midland and ask what documents you need to get the debt forgiveness. Good luck and best of health to you.
  31. 1 point
  32. 1 point
    Mission accomplished against a pro se defendant. Your Answer contains a general denial and an Affirmative Defense that the court lacks subject matter jurisdiction due to an arbitration clause in the underlying contract that you choose to elect. (The facts stated here are your burden to prove.) It does not appear that you attached a sworn copy of the Barclay's agreement as an exhibit to your Answer. Your court rules may require that a copy of the contract be attached when a pleading (complaint or answer) relies on a written instrument. If you need to amend your Answer, this might be an area to focus on. IANAL. It seems that your motion to compel arbitration includes a copy of the Barclay's agreement attached to an affidavit. This likely makes--as Fisthardcheese stated--your Answer less important than your pending MTC and your response in opposition to the MSJ.
  33. 1 point
    As @fisthardcheese pointed out, it will do absolutely nothing except show them you are paying attention. These days, judges are trying to get as much of their docket done by telephone as possible. The odds that a judge would refuse a telephonic appearance are pretty much nil. In fact, the judge may order the entire hearing to be done by phone.
  34. 1 point
    Very few jurisdictions require a sworn complaint. It's not a violation of due process anyway, because the complaint is just the notice of what the lawsuit is about. You still get your day in court to challenge their evidence and testimony (aka, due process). It's also not coercion. They still have to prove their case if you demand they do so.
  35. 1 point
    What leads you to believe there must be an “affidavit of truth”?
  36. 1 point
    Met with the lawyer this afternoon and he has agreed to take my case. Will update with the outcome!
  37. 1 point
    I would just add to this that this is the ONLY case we know of where a JAMS arbitrator allowed the costs of arbitration to be awarded against a consumer. There have been many other cases I know of previously where the arbitrator DENIED such requests by the collectors, citing the JAMS rules against it. Technically the rules say it is up to the arbitrator, but also the consumer rules state that it can only be done if found to be frivolous. Because of the slight discrepancy, there is that very small chance it can happen like the case Harry points to. However, in my personal cases, I would always prefer to use JAMS for many other reasons, including that you can get full comprehensive discovery, easier in-person hearings, and a more fair unbiased arbitrator. Generally speaking.
  38. 1 point
    File an Opposition to their Motion for Summary Judgement. In your opposition, refute all the points they made. State that you DID deny all of their allegatiosn in your answer on XX date. State that there IS a genuine dispute, mainly that THIS COURT HAS NO JURISDICTION as outlined in your pending Motion To Compel Arbitration. In your prayer for relief ask that the judge deny their Summary Judgement and Grant your Pending Motion to Compel Arbitration before this court.
  39. 1 point
    Study up on the arbitration strategy. Best way to beat a JDB, expecially when the OC is Synchrony. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  40. 1 point
    First off, you can wait to be served but make sure that they do not try sewer service. Watch the court page. In California, you have the option of using arbitration or going to court since California has not adopted the electronic business records rules. In this case, arbitration would be easier because Synchrony Bank has the most consumer friendly arbitration rules and for a debt of this amount, JDBs will simply run away rather than go down the arbitration route due to the cost on them (minimum of 5 figures that they probably will not be able to recover).
  41. 1 point
    It wouldn’t matter if he denied that it was his account. He’s being sued for the balance. The JDB claims it owns the account (and thus is a party to the agreement) and that it is the OP’s account. If the judge denied the MTC, then based on the case law, the denial would be reversed. This is from the Maryland ruling I cited. Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause "must rely on the terms of the written agreement in asserting [its] claims" against the nonsignatory. When each of a signatory's claims against a nonsignatory "makes reference to" or "presumes the existence of" the written agreement, the signatory's claims "arise[] out of and relate[] directly to the [written] agreement," and arbitration is appropriate. For the JDB to object to a consumer’s MTC because he cannot be a party to the agreement due to the fact that he denies having had the account, they would put themselves between a rock and a hard place. How could they make such an objection when they already sued the consumer and are claiming it, in fact, is his account?
  42. 1 point
    Sorry, let me clarify my statement. Correct me if i am misunderstanding. Fishman93 filed the MTC, the movant, if the attorney asked the one moving a MTC if he owed or was affiliated with the account, and fishman93 said no i am not the owner nor am i affiliated with the account, then he would have had no business moving the court on an account in which he was not affiliated. I believe the judge would have denied it at that point.
  43. 1 point
    @Fishman93 Congratulations! Was the court case stayed or dismissed? Please reread Fisthardcheese's pinned thread on arbitration. I believe Fist advises that you include a copy of the judge's signed court order of your motion along with your claim demand to AAA. This is especially important if the plaintiff is Midland or one of the other JDBs that haven't complied with AAA's rules. Without the court order, AAA often sends a letter declining to arbitrate those claims.
  44. 1 point
    If you would have answered "No" then the motion would have been denied, because you can not arbitrate a claim where you did not agree to arbitrate.
  45. 1 point
    Yes, it's been stayed pending arbitration. I appreciate your response. I did reach out to a local lawyer and he did respond that it does indeed look like an FDCPA violation, and has requested to go over the case docs to make sure. Thank you!
  46. 1 point
    Most of the time an appeal is limited to the issues heard at the lower court. As was so eloquently and gracefully pointed out, I'm not from Georgia, so I'm apparently forbidden by the Georgia thread police from participating in discussions in threads for that state.
  47. 1 point
    Now you get the JAMS case started again and include the new court order to show this is a new case. Keep an eye on things after that and if they do not pay the fees and the case gets closed again, immediately file a motion for sanctions in the court demanding that the court force them to commence arbitration or in the alternative, order a dismissal with prejudice. I would start working on that order right now so that you can file it if they JAMS case gets closed again. I would include in the motion for sanctions that this is the 2nd time they did this and show that they did not follow the original order either. That will not look good for the Midland attorney to have to explain why they failed to follow 2 court orders.
  48. 1 point
    This needs to be the foundation of your appeal. The In statute mandates an automatic stay of proceedings the second a MTC is filed. The IN statute prohibits the court from granting an MSJ until it first rules on (denies) the MTC. I found this case that talks about the applicability of 34-57-2-3(d), even when it's not cited in the MTC: "Although not mentioned by the parties, Ind.Code § 34-57-2-3(d) and (f) are relevant to this issue" Harlow v. Parkevich, 868 NE 2d 822, 830 - Ind: Court of Appeals 2007 https://scholar.google.com/scholar_case?case=12627190844688510209
  49. 1 point
    Thanks for replying, @Goody_Ouchless! One of my pet peeves in this great forum of ours are the people who comment with a "vomited" and extremely negative answer -- in the process scaring the -isht out of people who are already scared and asking for help -- and then leave. Most often these people offer no solutions whatsoever. Again, thank you for replying. 🔥❤️🔥 In my humble opinion, here is where I think we have to be careful, and make sure we point out CLEARLY words like "most states" when we are trying to help people. Sweeping generalizations are extremely dangerous in general (besides being faulty logic). But, especially when it comes to the law. I'm in California, so I tend to stick to helping California folks. That's my forte. That's where I've won cases. That's where I've actually guided other members of this forum to their own wins. I would never presume to know the intricacies of the other 49 states, and always make sure to point that fact out when I become involved in a thread. Your very last point (#4), pointed out the fact that for California, Texas, and "a couple of other states" it may be different. Thank you for doing that. Iin the spirit of "helping" (If I may be so bold), could we have, instead, led this discussion with something like: "For some states, like California, Texas, and a few others, information like this may still be useful. But be very careful, since a lot of the states, like (insert states here), have ruled differently (insert examples here), so you must be very thorough in making sure this applies to YOUR state and YOUR specific case." I mean ... "worthless" is such a strong word. Isn't it? Wonderful! This is crucial information that we must make sure to point out to newcomers looking at a pinned post for the first time! But ... "worthless"? 🤔 There is a lot to unpack in this paragraph: Is the advice old? Well, the first article was written 9-years ago, and the second 7-years ago. The age of the article must definitely be considered. Also, in which states the attorneys practice (the first one in California and the second one in Maryland -- both authors point out this fact). [Although, in the world of the law we still refer to things much older than this, right?] Is it "stale and worthless" -- we already addressed this above. The sweeping generalization made (this "doesn't work," this "doesn't work," this "doesn't work") that presupposes that every case, in every state, is exactly the same (except, perhaps, for those in point #4) ... Besides this being a fallacy of logic ... Is it helpful? "Chain of Custody" doesn't work because settlements of the various lawsuits brought by States have led to an industry-wide policy of debt buyers not reselling debts." Hmm ... someone I just helped win a case had a debt that was sold three (3) times. Yep ... four (4) different companies. And this win happened in the last two weeks (suit filed in 2018). Can this be happening only in California? Maybe. Doubt it, though. But, I am sure as heck not making any sweeping generalizations, or telling everyone that I know it for a fact. So ... here is where I am genuinely curious (I'm serious). Now, remember, I am in California. But ... 1. Other states don't let you face the affiant (person signing the affidavit) in person? 2. ANY piece of paper that anyone chooses to propound is AUTOMATICALLY ACCEPTED by the courts? So my 14-year-old niece can go on photoshop and doctor up some billing statements, I can grab Microsoft Word and type up some Bill of Sale, I can go online and find out your address, slap it all together, sue you, and I DON'T HAVE TO PROVE TO THE COURT THE VALIDITY OF THESE RECORDS?? When did the burden of proof switch to the defendant in these states?? Or is all I need to do is to get Tricky Sally Sue to sign on a piece of paper saying, "Yep, I do declare under the law of the state of (insert state here) that all of these papers here are authentic." And the court AUTOMATICALLY ACCEPTS this!?!? No matter who she works for? What her job is? When she worked there? Am I missing something here?? "As for legal technicalities and "magic discovery," most judges look at a pile of credit card statements with your name and address and put an end to the party right there." I mean .... I've seen some pretty funky Bills of Sale (no person or account named, dates that don't match, on and on ...). So ... nobody questions this? No one brings this up in court? Tricky Sally Sue just has to sign a "correctly worded affidavit" and NO MATTER WHAT ... EVERYONE IS TOAST? REALLY!? I mean ... really? (I'm serious) I keep hearing that arbitration is amazing and works like a charm. I've never used it, so I'm not going to even begin to offer an opinion on it. And I always tell everyone to PLEASE explore ALL options, including arbitration. After all, I'm not a lawyer. I'm definitely grateful to everyone who's blazed the trail for this option that has helped so many! IN CONCLUSION I do hope that you guys take the time to answer my questions (I'm genuinely curious and it would really HELP those new to this forum and this pinned thread!) I always try to be helpful in pointing out what may work and may not -- making sure people explore EVERY OPTION to the fullest -- without making any sweeping generalizations ("Well, this worked for me, so it will obviously work for you." or "This didn't work for me, therefore it will not work for you.") After all, I'm not a lawyer, and a particular strategy may work in a specific case, depending on the SPECIFICS of THAT CASE ... which may differ a lot or a little from a similar case. If everything was black and white as far as the law went ... then we wouldn't need the Courts of Appeal, State Supreme Courts, or US Supreme Court. Right?
  50. 1 point
    LOL. Could be. I only did a little research into and it really inst applicable to what i am going through, or trying to accomplish at the moment, so i dropped my investigation into it. With that said.... UCC-1 stands for Uniform Commercial Code Form 1. It is a "Financing Statement" that is filed to show that one party (usually a lender) has a security interest in another party's (usually a borrower's) property. It applies to personal property, not real estate. It is not an agreement. It is just notice to the world that one person claims that it has an interest in someone else's property, usually as collateral for a debt. It is normally filed in the office of the Secretary of State in the state where the debtor/borrower is located. In most cases, located means the state of incorporation for corporations, the state of creation for limited liability companies and other entities, and the state of residence for indiviudals. There must be another agreement, called a security agreement, that actually grants the security interest and defines the terms of the deal. The security agreement and the UCC-1 combined are like a mortgage on real estate. The mortgage is both the notice and the agreement for real estate, while for personal property the notice and the agreement are separate. http://www.sos.nh.gov/ucc/ucc1.pdf