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Showing content with the highest reputation since 12/28/2019 in all areas

  1. 2 points
    Ok, so my Mom had her court hearing today. The judge wanted to schedule mediation because it didn't cost anything. She almost agreed, but looked to me and I shook my head no. The judge saw and allowed me to come up and speak for her. Judge was under the assumption we would have to pay a few thousand dollars for a cheap arbitration, I explained that JAMS (which we are electing) limits the amount a consumer pays. He was surprised. I also mentioned the contract states they will pay a majority of the fees. The lawyer made a comment about that's not how it works in commercial arbitration. I chose not to remind him this is consumer arbitration. The lawyer then argued that Midland would not consent to JAMS, and the judge assumed I would have to be stuck with AAA. But I showed the judge the part that lists JAMS as a choice and he interpreted it the same as I did, that I have an option for either AAA or JAMS or a mutually agreed upon third party. Judge agreed we have the right to arbitrate, and lawyer asked for a stay until claim is filed. So now off to file for arbitration. My question is, based on the cost provision below, can/how does she ask that Midland pay her portion of the fee? 8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.
  2. 1 point
    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
  3. 1 point
    @lolazu -- A few weeks ago I sent you (via PM) a few templates for MIL's to get you started ( @RyanEX is right -- it is best to call them "Objections" now a days in most counties -- you have to check the Riverside County Local Rules, just in case). Please work on those and if you need help reviewing them, post your questions so we can help you iron them out. Please do not wait until the last minute. I know the whole thing can seem overwhelming and scary, but putting things off and missing deadlines can truly hurt your case. What did they the clerk tell you about deadlines for Objections/MILs? By how many days did you miss the deadline?
  4. 1 point
    I think that CCP 96 and CCP 98 deadlines apply to original court dates, not continued dates. From what I've seen, these JDBs rarely come up with anything new when these continuances are granted, they just use the time to try to get a settlement. If that's the case here, I would tell them to pound sand. Prep an Objection (instead of calling it a Motion in Limine) to their alleged evidence. File it and serve it to them ahead of the continued date. For future reference: you could have objected to their request for continuance. Trial dates are firm, and if they needed a continuance then CA code says they needed a serious reason to do so (plaintiff or plaintiff's lawyer became gravely ill just before the trial date, etc). And code says they should motion for it ahead of time, even just a day or two, not while standing there in court realizing their pants are down; their lawyer being unprepared/under-informed is not an excuse. But if you're not armed with the right code you can't object. Rule 3.1332. Motion or application for continuance of trial
  5. 1 point
    Ok I spoke to @SJULawAlum directly and he clarified a few things, what I was seeing in ecourts is what I thought, basically a local arbitration that's elected by the court That's the Part28 Arbitration, I would like to avoid, a lot of these cases go to 3215 in ecourts and it seems that they are being arbitrated this way. I have a copy of the cardholder agreement and it states I'm entitled to private arbitration. Which is the route we want to go.
  6. 1 point
    Even in CA the courts know there is no contract in a credit card case.
  7. 1 point
    RULE 41. Dismissal of Actions (A) Voluntary dismissal: effect thereof. (1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following: (a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant; According to the above, a plaintiff can voluntarily dismiss anytime before trial as long as there is no pending counterclaim.
  8. 1 point
    I have written a blog post on the subject: https://www.arpinolaw.com/examining-the-use-of-private-arbitration-in-debt-collection-lawsuits In July of last year I helped someone from this forum beat a JDB by using arbitration as a defense.
  9. 1 point
    I appreciate the response. It's helped me crunch the numbers and figure out what's best for my family. I went ahead and applied for the refinance, and it turns out I don't actually have to pay off my 2 collection accounts, so that was good. I was approved for an FHA at 4%, which based on my credit I guess is pretty good. I had a 627 Experian, 612 Transunion, and 650 Equifax. It turns out the refi is actually saving me even more than $500/month. Hopefully the rest of the process goes smoothly!
  10. 1 point
    I'm pretty sure Barclays has an arbitration agreement. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  11. 1 point
    This is a very inappropriate thing for a judge to say at any point, let alone at a PTC before any discovery had even been conducted. As far as the RFAs are concerned, i would deny #1 on the grounds that you lack knowledge/information sufficient to admit. Object to 2-5 on the grounds that they assume facts not in evidence. Object to #6 on the grounds that it calls for legal speculation. Deny 7-9. Object to 10 as uncertain, ambitious or confusing. Object to 11-14 on the grounds that they call for legal speculation.
  12. 1 point
    I hope you kept a copy of the agreement. In any case, I would call them at this point and ask when they will file with the court (don't bother with email). If they don't, when this goes back to court after the 6 month deadline, bring in your copy of the agreement and inform the judge that they sent it to you and you signed it and wonder why they did not file with the court.
  13. 1 point
    Almost everybody who followed the rules and did it right. A recent poster from Alaska revealed that the JDB walked on a $14K debt when faced with arbitration.
  14. 1 point
    Try here: https://www.consumerfinance.gov/data-research/credit-card-data/
  15. 1 point
    That is something some people do. They refi for a higher amount, and a portion of the money is used to pay off the debts. In that case, you won't be saving $500 a month, because your principal will be higher. OTOH, you could find yourself in a situation in which the loans are paid off AND you are paying less money per month than you are now. No fear of ever getting sued, and a clean credit rating. The other side of it is, you would have a higher principal on your mortgage. AND, if you refi on a 30 year term, it will take you longer to pay it off. What I did -- I realized I could refi for a 15 year mortgage for less money per month than the 30 year mortgage I was in. I had over 15 years left on my mortgage. I am not saving very much $ per month, especially since the refi costs added thousands of dollars to my principal. But, I am saving a little bit of money per month, and I will pay off my mortgage a few years earlier. Maybe only about 2 or 3 years earlier, but when my mortgage is all paid off, I will certainly appreciate those 2-3 years.
  16. 1 point
    I would also point out that here, the JDB walked on a $14K debt when faced with arbitration in JAMS.
  17. 1 point
    MOST of the time you will have to pay off the accounts in collection. Realize, there are exceptions for everything. A little over a year ago, my wife and I refinanced our home. She had an account Vz had sold to a JDB, for about $600-700. It was close to the SOL. I talked to lenders, and none of them required us to pay off the debt. One lender suggested we attempt a Pay For Delete. We contacted PRA with a PFD offer, but they never responded. We wound up paying nothing, and getting the loan anyway. If you are already contacting banks, and being told you need to pay off the debts in collection, then you have two choices: 1. Pay off the loans in collection, get whatever terms you can get with a 620 credit score. Not great, but not bad. 2. Wait until the SOL has passed, and your credit score is higher, then refinance the mortgage under whatever terms you will be able to get in a few years. I basically did #2, because I had over $100k in charged-off debts, plus a foreclosure on my record. But you only have about $3k. The question is: are the benefits you can get with a refi now, rather than past the SOL, with a 620 credit score worth paying off $3k? Answer that question, and you will know exactly what to do.
  18. 1 point
    This is a tactic to try and disguise a debtors exam as discovery for the suit. Basically they are assuming they have won and are looking for information to help them collect after getting a judgment. Object to those as immaterial to the complaint as filed. Did you file a claim with your insurance when you received the bill? You do not get the contractual amount until a claim is opened by either the provider or YOU. While may providers do automatically file the claim to speed up getting paid it is not required that they do so. There is a widow to submit a claim and once that closes you can file an appeal with the carrier but it rarely works. Now that two or more years have elapsed it is way too late to open a claim. The major problem is that when you get any care at a hospital you sign a financial guarantee and it does stipulate that if your insurance doesn't pay you WILL. You are likely on the hook for the balance as billed now.
  19. 1 point
    No, but.... ...this is true. The reason is banks don't want your judgment creditors putting liens on their security (the home). With my first mortgage i offered an affidavit that stated the judgment i had was beyond the collection SOL and would never be a problem for the lender. This was back in 2007 right before the RE market started to implode, and probably wouldn't fly these days.
  20. 1 point
    It seems to me the judge would still rule on your motion to compel arbitration. I'm actually surprised that has not happened yet. To all: Would it be 'poking the bear' to reassert that Plaintiff withdrew their MSJ, and have Defendant write an answer to the pending motion to compel arbitration, for purposes of the judge signing? I'm sure I've seen MSJ's submitted by plaintiffs/defendants composed as if the judge had written it -- with the "it is so ordered," etc. The judge reviews and simply signs it, so long as nothing else is pending. Thoughts?? Best, Jimmy
  21. 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.
  22. 1 point
    Looks like dismissal by the plaintiff. But wait for an official notice from the court to celebrate. Arb works!
  23. 1 point
    Thank you; I believe you will win this one. The motion to withdraw their MSJ leaves your MTC as the only active motion before the court. As @fisthardcheese said earlier, Plaintiff's attorneys seem to be on autopilot and seem a bit sloppy. So, they will either move to close the case or not respond at all, and after 12 months, the court will close the case under Rule 41
  24. 1 point
    My Motion to Compel Arbitration was granted a couple of weeks ago. I promised a few other members of the forum I would post a redacted copy of my court docs. So see below. Obviously you will want to fill it in with your own information. In the Case Caption section (Page 1 of most of these docs where it lists VS. your name), you will want to make sure you enter the name exactly as it appears on the complaint you were served with. In Los Angeles County, anyone can sign up on the court's website to submit documents electronically. If your court has this option, I would suggest using it as it's a time-saver. Lawyers are REQUIRED to use it, but folks like us are not required to do so. You can also reserve court dates using this system. For example, after I was served, I filed the Motion to Compel Arbitration instead of filing an answer (you can do this in California, per CCP 1281.7. While working on typing up your MTC, you will need to get a hearing date from the court. Using the online system, I picked a date that was about 45 days away. If you don't go the online route, you should be able to telephone the court and ask the clerk if you can calendar your MTC. Be sure the date is far enough in the future that you have enough time to serve the opposing party AND file your proof of service with the court. Although not required, I always have the person who does my mailings send them Certified Mail, Return Receipt Requested (CMRRR). This way you have absolute proof they got it. I'm around to answer questions. I'm not a lawyer by any means, but I can tell you what has worked for me. Redacted Motion to Compel. Arbitration.pdf Redacted Order to Arbitration.pdf Redacted Memorandum of Points and Authorities in Support of MTC.pdf
  25. 1 point
    You're in good shape with regard to the arbitration clause. Follow the steps from the thread i linked to and they should dismiss the lawsuit.
  26. 1 point
    Check to see if the complaint has been filed with the court. If it has, you have been sued.
  27. 1 point
    You need to do a little homework. There are many threads on this forum from people who have been in the the same situation. Synchron account, PRA, Rausch law firm. There is a way to win. @fisthardcheese put together a nice arbitration thread. There may be specifics for dealing with Texas. I would recommend doing a search on arbitration, and learning the basic techniques. Look at the specific Texas threads as well. @texasrocker may have some specific detail about Texas courts. Long story short: you can beat this with arbitration, but you have to do your homework to execute your plan. Good luck!
  28. 1 point
    In my particular case, I filed a Motion to Compel Arbitration (MTC) instead of an answer or general denial. From reading thru the California Code of Civil procedure (1281.2), I don't see anything that would prevent you from filing a MTC. I'm going to be posting all of the paperwork I used to get my MTC granted by the court (will post tomorrow evening 1/14/20), but you shouldn't simply cut and paste my motion - you will need to alter it a little for your situation. Since you had mentioned you applied for a fee waiver, have you considered contacting a lawyer referral service in Orange County ? Many of them offer "Pro Bono" (free) services to low income persons. This will get you started: https://www.justia.com/lawyers/california/orange-county/legal-aid-and-pro-bono-services That said, I'll post a redacted copy of my paperwork and I can answer any questions you may have on it. It seems like a lot to learn, but myself and others here have been thru this process.
  29. 1 point
    Hi @PleaseHelpConfused! Glad that you found the board! You are in great hands! The arbitration strategy is shown in amazing detail here: Hopefully @fisthardcheese can chime in and answer your question regarding "arbitration in California" and whether in California you have to do something specific after you submit your Answer/General denial, if you have to write down something specific in your General Denial, or if you already submitted your Answer/General denial, if you can amend it to include the arbitration statement. Here is another thread. This one is by @NetworkEngineer, who is currently pursuing arbitration in California. Perhaps he can chime in also. I keep hearing that arbitration is a lot easier than the regular "court" route, so it is definitely worth a shot. All my experience is through the regular route. I am sure some of our regular experts can give you some guidance!
  30. 1 point
    Take a look on the court website to see if there is a lawsuit filed against you that matches the cause/case number stated at the top right of that notice. If there is, this lawsuit is legit, and they aren't pulling a 'fast one'. Bottom line is you owed a debt to Fifth Third, FT sold it to Jefferson, and now Berndt, as the lawfirm representing Jefferson has filed a lawsuit against you. Your only possible defenses are that it's mistaken identity/ID theft, the SOL has expired, or you have some proof showing you paid the debt in full before they sued you. Because it's a debt buyer suing you, there's an excellent chance of using arbitration, if available in your original credit agreement, to make Jefferson dismiss their lawsuit and walk away.
  31. 1 point
    @bmc100 I don't know if you check back here from time to time, but I wanted to alert you and any new Michigan posters to important changes to the Michigan Court Rules that went into effect on 1/1/2020. Michigan Supreme Court Approves Significant Changes to Michigan Court Rules Effective January 1, 2020
  32. 1 point
    It's not likely, but also not impossible. If you do a system restore to a point before this incident happened, you should be good.
  33. 1 point
    It depends on a lot of things; mostly the creditor. Some won't budge ever, some will consider removing late payments after a few years have passed. Basically you send them a letter explaining why you were late and highlighting your otherwise stellar payment history, and ask if they will remove the late payments. Humility and diplomacy is absolutely key here. They have absolutely zero incentive to give you what you want, so you can't come across the least bit entitled. Whatever you do, don't try a dispute with the CRAs before sending a goodwill letter, and waiting a minimum of 3 months for them to act on it. Edit: Some people have reported having the creditor remove the entire account in response to a goodwill letter. Most of the time this will result in a significant score drop because the positive payment history and age of the account is helping much more than the late payments are hurting. Late payments have very little, if any, negative effect on your score after 2 years, so I would advise leaving well enough alone unless you can afford to lose the entire account.
  34. 1 point
    I would answer each and every one of their requests with this response. "Objection: Defendant has asserted his/her right to have Plaintiff's claims resolved in binding, contractual arbitration. Responding to Plaintiff's request may be interpreted by the court as a waiver of Defendant's rights, and Defendant therefore objects to Plaintiff's request on these grounds."
  35. 1 point
    Each case is unique. Your case is an outlier, so not much to compare it to. My Crap1 case had some similarities. The judge threw out their affidavit And statements, because in my state the law required personal knowledge of the account. The affiant was a “litigation specialist “ or something; not someone who dealt with the accounts on a daily basis. Things were different going forwards. The judge granted my arbitration motion. Back then, the state had a law that the judge could review the arbitration results to make sure they followed state law. This was before the ATT Concepcion case. In a nutshell, Crap1 bailed. They simply walked away from the case. Two differences between the cases: 1. Arbitration was in effect back then, under laws very favorable for me, since the case would be reviewed by that same judge. 2. I had some legitimate counter claims. Crap1 used some bottom feeder debt collectors back then who racked up tons of violations. Several debt collectors, all terrible. Maybe they didn’t want to explain that in arbitration or front of a very pro-consumer judge. I can’t read their minds So, what will happen in your case? I don’t know. Maybe Crap1 will suddenly lose interest in the case. Maybe not. The cases are similar enough it is a possibility, but different enough that you can’t extrapolate from one outlier to another outlier in a different state with a different contract years later. One possibility is to lay low, but prepare. Prepare any discovery, but don’t send it in yet. Wait and see if Crap1 is planning to pursue the case, or walk away from it.
  36. 1 point
    Change the password for any site that uses the same email address for the login. Also check, at regular intervals, those same websites to be sure your email login hasn't been changed to a different email address. I got hacked and my Amazon and Netflix logins were changed to email addresses i never owned. One of them was a .ru domain, so it was pretty obvious who was behind the hacking. I also started getting extortion emails saying that if i didn't send $900 in bitcoin, that this person would send to all of my Facebook contacts video of me 'enjoying' adult websites that had supposedly been hacked from my computer webcam. I don't visit adult websites, and don't have a webcam connected to my computer, but i could definitely see this kind of scam working on the right people. So watch out for those kinds of things.
  37. 1 point
    If you go to McDonalds, order a burger for a dollar, and then only give them 50 cents, they will refuse the 50 cents, not give you half a burger and keep the other half warm.
  38. 1 point
    @catlady22 and @Brotherskeeper you guys are awesome! Really, thank you for this! I will certainly do some research on the California of Civil Procedures and my court's rules and procedures on affidavits. If it wasn't for your help, I'm not sure I could have continued on the arbitration route because it started to become a little too confusing for me, but now I feel more confidant than ever, as everything is starting to make more sense. Thanks again guys. I can't express in words how much you helped me.
  39. 1 point
    With the OC of Synchrony, arbitration is the best way to deal with this. And, if you do go the arbitration route, you do not want to engage in discovery,a s that may waive your arb rights. Instead, you should object to their discovery on the grounds that arbitration has been elected. But first you should file the MTC Arb. I would suggest doing this ASAP. Best info on arb:
  40. 1 point
  41. 1 point
    In Golay v. Loomis, 118 Idaho 387, 797 P.2d 95 (1990), we addressed this issue when we stated in footnote three that "the correct analysis of I.R.C.P. 56 is that it does not allow for oral testimony to be heard at the time of hearing on a motion for summary judgment." Golay, 118 Idaho at 391 n. 3, 797 P.2d at 107. In other words, I.R.C.P 56 forecloses the use of oral testimony at a summary judgment hearing. Lindsey v. Cook, 139 Idaho 568, 570, 82 P.3d 850, 852 (2003).
  42. 1 point
    The decision will very likely be rendered the same day. SJ hearings in debt collection cases are not all that common, actually, and most of the time the courts issue SJ rulings with no hearing. Chances are the court has already made up its mind, but wants to clarify some details before issuing its order. The court will probably let the plaintiff's attorney speak first, since it's their motion, then give you a chance to rebut any info the attorney had to say. It will probably go back to the plaintiff to respond, and then back to you. The court won't give endless volleys, so get your main points out front. You can bring up any info relevant to your argument. Also pay attention to what the plaintiff's attorney has to say, so you can pick the 'big ticket' arguments apart first and let the less important ones go if you can't get everything in.
  43. 1 point
    Eventually they stop when they realize you will not fall for it. They will never serve you. Instead they will harass you and your family in an effort to get someone to pay. Even if 5% of the people called pay up, it is a payday for these people.
  44. 1 point
    Looks like Credit One has a clear small claims carve out, but no other restriction. Appears OP has started another thread and is going down the doomed road of discovery.
  45. 1 point
    @Brotherskeeper First and foremost, thank you so much for your help! I appreciate every response and all of the information that you have assisted me in finding, and for providing. I tried to go to the court yesterday, after checking on the website to ensure that they were open. I pulled up and the doors were locked. Closed today and tomorrow as well, I'm assuming. The judge just said that I had a week to file for arbitration and send the election of arbitration to Midland (on 12/18/2019). I mailed CMRRR to Midland, the attorney, and JAMS a copy of election of arb., copy of agreement, cover letter to JAMS denoting what enclosed (demand form, 2 copies of agreement, notice of election that I sent to Midland and attorney). I also noted that I was requesting that Midland pay the fees per the enclosed agreement. I included in all 3 mailings a signed and dated certificate of service. I have a copy to drop off at the court of everything that was sent and copies of the CMRRR green card. So, I did everything within the 7 days from the 18th. Now I guess I just wait for JAMS, or Midland to contact me. I've never had the process go this far. Thank you also to @fisthardcheese for all of the information that you have taken the time to provide on this forum. I could not have made it this far without the information. I greatly appreciate it.
  46. 1 point
    Congratulations! They won't follow to arb, so you won. @fisthardcheese should have a definitive answer, but perhaps contacting the lawyer and offering a mutual walkaway and dismissal with prejudice might work. Otherwise, yes, I believe you continue with AAA so they can't come back and say you weren't serious. My understanding is that a pro se is to be treated just like another lawyer, yet we see so many of these cases where the plaintiff's lawyer lies about the defendant's cost of arbitration. If they did that to another lawyer they'd probably face sanctions.
  47. 1 point
    I hope you have retained an attorney. If not, you are almost certainly in over your head and will lose your home. There used to be a fellow from Milwaukee who posted on this forum. He had a very dicey foreclosure situation. He got an excellent attorney and won the case.
  48. 1 point
    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!
  49. 1 point
  50. 1 point
    In the context of proposed MTC arbitration, plaintiff's allegations are moot. Even if all of plaintiff's allegations were true, the court could care less if the dispute is going to be handled out of court. In some States, responding to complaint via answer actually waives arbitration! Suggest OP study the concept of responding to a law suit via MTD. "Answer" has a very precise meaning.