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Showing content with the highest reputation since 08/17/2019 in all areas

  1. 3 points
    @RelayerPA Here are 2 cases that have a lot in them. Taylor v Extendicare discusses when one claim can be arbitrated and the other needs to remain in court, the claims can be bifurcated. This may help you if plaintiff tries to argue that both claims should remain in court, if the small claims exception applies on the one credit card. Saltzman v. Thomas Jefferson University Hospitals, Inc., 166 A.3d 465, 469 (Pa. Super. 2017). "Pennsylvania courts apply the liberal policy favoring arbitration agreements embodied in the FAA. See id. As our Supreme Court recently emphasized, courts are "obligat[ed] to consider questions of arbitrability with a `healthy regard for the federal policy favoring arbitration.'" Taylor v. Extendicare Health Facilities, Inc., ___ Pa. ___, 147 A.3d 490, 509 (2016) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), cert. denied, ___ U.S. ___, 137 S.Ct. 1375, 197 L.Ed.2d 555 (2017). "[T]he FAA binds state courts to compel arbitration of claims subject to an arbitration agreement." Id. (citing 9 U.S.C. § 2)." Taylor v. Extendicare Health Facilities, Inc., 637 Pa. 163,147 A.3d 490, 509-10 (Pa. 2016), "As noted, the FAA's objectives are to ensure the enforcement of arbitration agreements and facilitate streamlined proceedings. Arbitration of a single claim under the facts presented herein, with multiple plaintiffs and defendants and several causes of action remaining in state court, likely will not lower costs or enhance efficiency. Therefore, the scenario that we are addressing arguably presents a conflict between the two objectives of the FAA, where enforcing the ADR Agreement between Decedent and Extendicare will satisfy the enforcement objective at the expense of efficiency. Under such circumstances, we are bound by the Supreme Court's directive to favor enforcement over efficiency. See Moses H. Cone, 460 U.S. at 20, 103 S.Ct. 927; Dean Witter, 470 U.S. at 217, 105 S.Ct. 1238; KPMG, 132 S.Ct. at 24. The Supreme Court has made clear that bifurcation and piecemeal litigation is the tribute that must be paid to Congressional intent. Dean Witter, 470 U.S. at 217, 105 S.Ct. 1238."
  2. 2 points
    Thank you for your kind words. It was horrible to have my kid attempt suicide. We are now trying to get the right medications, so this won't happen again. Some of the best times I have had with my kid have been between the suicide attempt and now, as in when my kid is in a stable mood, I am dealing with a wonderful and delightful person. For example, my kid quit a sport because the HS coaches in that sport did not like my kid. This summer my kid found a club team in that sport which was looking for a fill-in player. We got to have some great moments going to tournaments together, seeing my kid do whatever it took to help the team out, and by the end of tournament season be one of the best players on a team that was a much higher level team than the local HS varsity team. School has started again, so I need to worry about how my kid will handle school, and whether the stress of school will cause a lot of problems again.
  3. 2 points
    I got so flustered that I didn't even give him time to react after I handed him my counterclaim, which in hindsight I should have waited for! I just did NOT want to face that judge again. He scares me and makes me super nervous and I felt like if he asked me a bunch of questions about my counterclaim, then I would probably look like an idiot. I really thought about it and didn't even make a decision until I met with the attorney and just decided that I wanted this settled. I am happy with the results. You guys rock!
  4. 2 points
    UPDATE: First of all, can I say how much I love this board? It has been instrumental in helping me with so many of my cases. I really appreciate all the knowledge and advice that you guys so willingly share. Indebted (no pun intended)! So I went to court, and filed my counterclaim with the clerk immediately. The attorney was there for me and 4 other cases. Guess how many showed up? Just me. We go to talk in the hall. He tells me that his client agreed to settle for 65% and I can make monthly payments over 2 years. At our last hearing I tried to settle with them and offered $1000 right then, or 50% w/ payments (bc my MTC was denied, and I didn't know what else to do), and he called the client and they said no to that, and said the best they could do was like 80%. I told them no and we could go to trial, well that's when he got the continuance so he could go back to his client and discuss a 50% settlement, and they would let me know. Well at all of y'alls suggestions, I said no to the 65% settlement and that I had just filed a counterclaim against his client for malicious prosecution and violation of the Fair Debt Collection Practices Act. And that the most I could do was $500 and payments over 4 months. Then I said if he didn't agree to that, then we could go to trial and that I knew I would lose since the judge already denied my MTC, and I was already aware of that. However, I said I planned to appeal his decision and take it up in State Court. Then he told me to hold on, and he texted someone for a couple of minutes and said "ok the client has agreed!" So he pulls up a consent order, and then I told him that there has to be language in it that states that the case would be dismissed with prejudice and that my credit file will show "paid in full" for this account. And at first he said no, he has to do dismiss without prejudice and not to worry that they wouldn't go after me again. I told him no deal if it doesn't say WITH PREJUDICE. So he gave in. I know that I could have probably taken this to state court and been granted my MTC, but the appeal was going to cost me at least $217, and I figure another $283 to just settle this now and not have to go back to court was worth the anxiety that going to court always brings me. THANK YOU ALL SO MUCH! Another case with a successful outcome!
  5. 2 points
    Doesn't matter how long they had the summons. The day they served you starts the clock ticking on the count down to file an answer.
  6. 1 point
    There is no trial date set. I will start working on it and will post a redacted copy for you to review. You are so helpful!!!!
  7. 1 point
    GOOD call. You didn't mess anything up at all. If there was a counter claim it changes how or if you can file for dismissal. In some states if there is a counter claim both parties have to consent for dismissal. Filing a counter claim now would be about forcing them to pay you for this mess but I personally would not want to rock that boat at this stage. I personally would wait until the 60 day mark after they received it but to be safe my recommendation is that you file at the 45 day mark from the receipt of the admissions. This is so you can argue to the court (if necessary) that more than sufficient time to comply with the rules of civil procedure was given and their failure to respond to your rogs and the order from the Judge to investigate the insurance indicates a failure to pursue the case. I would file a motion for summary judgment in my favor. The reason for this rather than a dismissal is you do not want the judge to give them a break and grant the dismissal without prejudice thus giving them potentially another bite at the apple. They could simply get their ducks in a row and gather paperwork and try again. The summary judgment in your favor means the court ruled you do not owe the money. If they tried again or sold the debt to someone else who did you have a gold plated defense [res judicata] that the courts already decided this matter and you do not owe the money. It also means that you can use the judgment in your favor to remove any trade line from your reports because the court ruled you do not owe the money. Start working on a well worded motion for summary judgment. The basis would be that by not responding to the admissions the answers are automatic and they have admitted they were attempting to circumvent the laws preventing balance billing and intentionally interfered with your contractual right to insurance coverage. The better and more thorough your motion is means that if the court does not get an opposition to it they Judge may simply sign it and grant it without holding a hearing. You can post a redacted copy here for feedback if needed. Is there a trial date set?
  8. 1 point
    If you are happy with the outcome, that is all that matters. Given that he was giving in to EVERYTHING you asked for, I would have started with that $0 mutual dismissal, but again, if you are happy with it, then that's all that matters.
  9. 1 point
    There was a poster here, don't recall who, who used arb, and the JDB walked on almost $18K.
  10. 1 point
    Don't take this bond stuff as gospel. Ask the Magistrate Court's clerk if that is the case. I have only seen it required with tenant cases dealing with rent and there is no mention of it on the Court's website (in any of the counties I have checked). It is more likely you will just have to pay the filing fee for state court upon appeal. You only have 30 days to file the appeal after judgement.
  11. 1 point
    I would google other affidavits to see how they should look. This is your personal testament, and should be written as your own words rather than a third party. Don't say "the Defendant attests...", Say that "I affirm to the best of my knowledge that this is a true and correct copy...". The MTC looks good to me. If you have time, I would add at least one case law form your state regarding arbitration. There are usually several state rulings saying essentially the same as the SCOTUS. The state case law should come just before the SCOTUS case law in your Brief section. Perhaps @Brotherskeeper knows of any case that you can use. She is great with finding case laws.
  12. 1 point
    There are two schools of though on that. Most people say to validate, because there is minuscule chance they will violate, and that it can buy you some time (30 days or less). My feeling it that all validating does is let them know that they found the correct person - figure the "wrong person" is just going to toss the letter as junk belonging to a previous resident. When reviewing cases filed in my local court, I was surprised by how many were dismissed because they couldn't find the right person. Asking for validation instantly puts you in "we found 'em!" pile. Ultimately, though, experience on this board has shown no firm rule of thumb - some people validate and get sued, others validate and don't get sued. Some don't validate and get sued, and some don't get sued. Midland is a classic example - they sued us on a few accounts and left others - just as valid - to fall out of SOL with nothing more than letters.
  13. 1 point
    This case may need a unique MTC for it. You have two different contracts. You will need to state that Plaintiff has alleged two different accounts on two separate contracts, both which contain an arbitration clause, then make 2 different sections on the MTC. Once section for each account and list the info about those contracts. In those sections, I would specifically ask for one to be compelled to AAA per the contract and in the other section I would ask for THAT one to be compelled to JAMS under ITS contract. Then after the two sections regarding each account's card agreement, I would make a section titled "Brief in Support" and this is where I would list all of the case laws supporting arbitration (which would apply to both accounts above). I would not mention the small claims exception. That is their burden to bring up if they chose to use it as a defense. However, they have put themselves into a tight corner IMO. They can't separate out the contracts unless they drop a claim from the suit and re-file it separately, so I don't see how they can present an exception for half of their lawsuit that can clearly be demonstrated does not apply to the other half of the claim.
  14. 1 point
    Glad to hear this. If they come back, they will be facing a tiger this time!
  15. 1 point
    FL law only requires they SEND notification the debt has been sold. They do not have to prove you received it. If they produce a copy of a letter they state they sent to you that is sufficient for the court. You can but you will not win the motion. FL does not require they send you any notification prior to suing. Most JDBs no longer send communication prior to avoid FDCPA claims. DO NOT file anything until you are served. You could get lucky and they never serve you and it gets dropped. Keep a close eye on the docket on line to ensure they do not use an alternative service method.
  16. 1 point
    @BackFromTheDebt sorry I haven’t had a chance to reply with an update since my court date. Long story short the case was dismissed since the plaintiff was a no-show. Long story is there were about 10 other defendants who had had lawsuits filed against them By Midland funding scheduled to appear on Thursday. The clerk very kindly explained to those of us that did show, that if Midland did not send a representative, the case would be dismissed. It was a pretty nerve wracking hour, waiting and hoping that they wouldn’t appear at the last minute. When we were finally called into the courtroom there were further delays as the clerks and judge got settled, but in the end, all cases with Midland were dismissed. There did not seem to be a good opportunity to approach the judge regarding dismissal with prejudice and she had been quite feisty with another case so I was hesitant to speak out of turn. I also had no opportunity to mention that my case file already had a discontinuance within but we were all given a document signed by the judge with the dismissal information for our records. Since they originally filed the suit in 2017, I’m cautiously optimistic that they won’t bother to file again and actually serve me this time around. If they do, I will come running back to this forum for the invaluable advice. Thank you again for your help in explaining my situation. I know I was one of the lucky ones but I was completely clueless going into this, so I really appreciate your responding to my concerns.
  17. 1 point
    Hi there @Winning67 You will probably not get any answers to your question by posting under the question I asked. I am filing a Motion to Compel Arbitration. There is a wealth of information on this forum. I would refer you to https://www.creditinfocenter.com/community/forum/199-arbitration/ as a starter. Once you've read that, any questions you still have should be started as a new topic. Best of luck to you and your husband.
  18. 1 point
    The Cap1 agreements I’ve seen state they are governed by the laws of Virginia. Idaho does have a borrowing statute. Idaho Code §5-239. ACTIONS BARRED IN ANOTHER STATE. When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action thereon can not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued. “Idaho's borrowing statute is a choice of law rule that by its terms applies only where the action arises in another state — a situation that indicates another state most likely has a substantial interest in the action in most circumstances. Furthermore, the statute does not cause the application of a foreign limitations period unless the plaintiff was either not the original holder of the cause of action or was a non-resident of Idaho when the cause of action arose — situations that also indicate another state most likely has a substantial interest in the action.” Miller v. Stauffer Chem. Co.,99 Idaho 299, 581 P.2d 345, 349 (1978) Virginia’s 3-year SOL applies to contracts that are in writing but not signed. That could be argued for a credit card. § 8.01-246(4) 4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.
  19. 1 point
    Yes, that is when you can appeal to State Court and it is a trial de novo. The judgment is stayed until the appeal is heard, it will not be dismissed. That is because you will be required to post a bond in the amount of the judgment in order to appeal. That way if you lose they collect immediately.
  20. 1 point
    This is very tricky. Just say something like “I elect arbitration for all matters with this account”. Thing is, they may just ignore that. At some point they will send it to an attorney. If you tell an attorney you elect arbitration, one of three things will happen, and they have all happened in my cases 1. They will ignore you and file suit anyway. 2. They won’t want to bother with you and will send the account back to the OC or JDB, who will send it to another attorney 3. They will give you a deadline of x days for you to file in arbitration, otherwise they will file in court. MOST of the time you can keep a case out of court by doing the following: A. After you hear from an attorney, send in your DV letter. That will buy you enough time to write up your arbitration file. Mention in the letter that you elect arbitration B. At some point they will probably reply. Not always. See #2 above. For one law firm the case sat in the bottom of a drawer for a year or so before they answered. C. After you hear back from them, either you have a deadline to file in arbitration or you don’t. If you have a deadline, file before the deadline and send a copy to the law firm. If they didn’t mention arbitration at all, that means they will file suit very soon unless they hear from you about settlement offers. In that case, file in arbitration immediately. Remember in step A you prepared for this. Send a copy to the attorney. NOTE: this does NOT work 100% of the time. Sometimes the case is sent to an attorney, and the attorney will Immediately file in court with no warning. They can legally do that.
  21. 1 point
    The judge denied arbitration because of the small claims language. Doing a stay and interlocutory appeal would likely end up with the same result since you are still in magistrate, so that would be a terrible way to go. You must either conclude the Magistrate case, then appeal or attempt to file now to remove the case to State Court (which I doubt they will allow this far into a case).
  22. 1 point
    Well that escalated quickly. *turns up my favorite rap song and ignores the garbage post*
  23. 1 point
    If you appeal ONLY the denied motion the appellate court can remand it back to Magistrate. If you go to trial and lose then appeal the entire case THAT is de novo in State Court. What you appeal determines what happens next and in which court.
  24. 1 point
    Yes,ignore any and all letters or calls from them. In general discovery ends 30 days before trial date.
  25. 1 point
    You just have to stand your ground and get a feel for the creditor based upon research. From what I could tell with my research Discover rarely goes below 40%, and I didn't want to (and couldn't) do a 40% lump sum. So we found a way to make it happen. No interest is accruing. These aren't my numbers but here is an example... Say you owed 10k. I paid them 3k lump and then every month I give them ~$42 for the next couple years for a total payment of $4k. IMHO never do any sort of 'payment' plan that is not a true settlement (although the reporting to credit agencies is different and settlements are more damaging). The question you really have to ask yourself are you trying to settle/pay less or do you want to find a way to pay the entire amount.
  26. 1 point
    The problem is debt validation is no longer an option once you have been sued. Even under California law they were free to ignore it. In this situation settling for less is a better option. Years of post judgment interest could balloon that judgment to $10k fast and then if they garnish you would be paying for years to come.
  27. 1 point
    This is excellent advice. Some places make you go through extreme background checks before hiring. I have been in the situation in which I had to prove that I had no outstanding judgments against me before I could get a job. I even talked personally with Bob Hornick, one of the partners of the RSIEH law firm, and have him send confirmation that I didn’t owe his client any money. The Catch: You can’t get a job until you pay the judgment, and you can’t pay the judgment without a job. Being in an accelerated program leaves you with almost zero free time. Following the steps will take a few hours here and there. And you can very likely win, or at worst delay a judgment until after you have a job. You have to find a way to spend the handful of hours it will take to possibly save your career.
  28. 1 point
    @Frankie12 Is this the debt from your other thread? I realize this is very difficult for you. It's overwhelming, I'm sure. A judgment on your record may impact your job prospects, so it's to be avoided if possible. If you would post your Complaint on your other thread and use the examples of other Michigan members to draft your Answer, Affidavit and your Motion to Compel Arb (MTC), you have a chance of ending up in a much better situation than if you allow a default judgment. We've helped many people in similar situations and their threads show you a basic step-by-step way to get through this. You don't have to reinvent the wheel, just modify (with help) the templates to reflect your specific case details. You have some time before your Answer with Affidavit is due. Is Sept. 6 your due date? The MTC doesn't have to be turned in at the same time as the Answer, so you have a little more time with that. Many Michigan posters have used the Michigan-modified template to a successful outcome--no guarantees, of course. If you don't at least try, you can't end up in a better place.
  29. 1 point
    @Frankie12 Can you please post a redacted copy of the Complaint? We need to know if you're being sued for breach of contract or on an account stated cause of action. In Michigan, if it's an account stated, you'll need to include an affidavit with your Answer. We have examples here.
  30. 1 point
    A dismissal with prejudice can take care of all other issues like that afterwards.
  31. 1 point
    I suspect any time Citi is a defendant, if the state rules allow it, they get it out of small claims and then into arb--where there's no case ruling to be made public. A critical first step for any defendant with Citi's small claims arb exemption is to research rules to see if your state allows a case to be transferred to a higher court. My state allows this, but my state does not allow attorney representation in small claims court, so JDBs don't sue in small claims.
  32. 1 point
    @WonderingInWI You might find this interesting. In an Arizona case that a pro se brought against Citibank in small claims court, according to the pro se author of this article, Citi did the following to evade the small claims exemption: https://medium.com/@dempsey/tyranny-of-the-arbitrators-5b5526489338 "In its motion, Citibank simultaneously: cited A.R.S. 22–504 to unilaterally and automatically have my small claim removed to Justice Court; and, cited the arbitration agreement’s Disputes Excluded from Arbitration clause — “…so long as the disputes remain in [small claims] court…” — to force this newfound Justice Court case into mandatory arbitration. By unilaterally removing my small claim from small claims court, Citibank had exposed its agreement to contain a deceptive trap that does not grant a right to small claims court."
  33. 1 point
    Hi there all, Sorry in advance for the length of this saga, but I promise there is a good ending. I haven't been on the forum for a while and wish I'd seen the original posting. So, I was sued by Midland for an alleged 5k Care Credit (Synchrony) account about 2 years ago. There was a lovely arbitration clause (like yours) in the card agreement. Kohn Law Firm was doing the dirty work and brought the suit against me in my county's Small Claims Court. I was very grateful to receive significant information and strategic suggestions from members here (several who have been posting on this thread). I also did a boatload of research, including using PACER and almost memorizing WI's Consumer Act. I filed my Answer along with my MTC and appeared for the Hearing. The attorney representing Kohn had graduated from law school months prior to the Hearing (again, research). That very young man was representing Kohn on several matters before the Court that day and had rudely asked (demanded) each Defendant to confer with him prior to the proceeding. He'd been able to threaten and convince several parties to sign agreements admitting their debts because, "you'll get a better deal this way," and was, no doubt, expecting me to fall in line. He started by denying he'd received my Answer or MTC. This was either a blatant lie (my bet) or abject incompetence (possible) as I'd filed them electronically using WI's e-file system. I highly recommend filing everything this way as it is hassle-free and, I believe, shows the Plaintiff you are engaged in the process. When I slid a hard copy of the documents across the table to him, he shoved them back at me without looking at them. At that point, I told him we had nothing else to discuss and walked out. As I'd been astutely warned by forum members, the Small Claims Court Commissioner (who presides over the initial Hearing in consumer debt cases), barely glanced at my MTC. The Kohn attorney told the judge that he had no idea what I was proposing and had never seen the document. The Commissioner said that it didn't matter anyway because he was ruling in favor of Kohn/Midland and entering a judgement against me. I immediately (via e-file) requested a hearing before a Circuit Court judge. I received notice of an assigned judge and hearing date. Research (again) led me to understand that the judge was likely the most pro-business, anti-consumer on the bench in the Circuit and filed to request a new judge. I received a new judge, one who appeared, at least on paper, to view consumers in a more favorable light. Before the hearing date, I was notified (via e-file) of Kohn's Motion to Deny my MTC. I was actually surprised at the apparent lack of thought and legal reasoning contained in the document. It felt like they were not taking my Motion seriously. I responded to Kohn's Motion point by point and filed a copy of my application to JAMS. At the hearing, it was obvious that the Judge had actually read and thought about my MTC. He told the Kohn attorney that his Motion had not really addressed the issues I'd raised and asked him pointed questions as to why the case law I cited would not be relevant. If boy-lawyer had not been such a jerk, I would probably have felt sorry for him. He sputtered and turned red- especially when my MTC was granted. Then started what I call the JAMS dance. I was really trying to not pay the $250 filing fee. There were many emails back and forth with Kohn. My case was now being handled by boy lawyer's supervisor. In retrospect, I would likely have been okay not paying but admit I blinked when JAMS said they were closing the case because of not receiving filing fees from either party. I just did not want to be in defiance of the court's Order. So I paid my $250. Magically, Kohn filed for a Dismissal of the case, without prejudice. Again, none of this would have been possible without the wisdom of the forum members and the kindness they show by sharing that. PM me if you have any questions.
  34. 1 point
    I deserved that! Yes I waited too long to file. Thank you for responding. I received an email today from JAMS forwarding an email from the lawyer. He said that his client is electing not to participate in the arbitration process and they have dismissed the lawsuit. I haven't received any notification that the lawsuit was dismissed. JAMS responded that they will proceed with arbitration unless it is withdrawn by the Claimant. I responded that I would like some time to confirm the dismissal of the lawsuit before considering dropping the arbitration. I then emailed the lawyer directly saying I would drop the arbitration in exchange for a dismissal with prejudice and payment for my JAMS filing fees. We will see what happens next. Have you ever seen a law firm refund the JAMS fee back to the claimant? Again, thanks for your time!
  35. 1 point
    Who is the plaintiff? Citi or a buyer? What's the date of the agreement? Citi had delegation language from 2001 until late 2016 or early 2017 (depending on the style of account). The delegation language looks like this; Citi removed this language a couple of years ago. But if the agreement that governs the account in question does contain this language, then the court can't consider the small claims cut-out. The Supreme Court re-enforced this interpretation earlier this year in Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___, 139 S. Ct. 524. See also; U.S. Supreme Court Holds That Arbitrators, Not Courts, Decide Arbitrability Under Contractual Delegations—Even When the Answer Is Obviously “No” SCOTUS Rejects Exception to Compelling Arbitration—Delegation clause means arbitrator decides scope—no plausible argument required Supreme Court Gives Teeth to Delegation Clauses in Arbitration Provisions U.S. Supreme Court Rejects ‘Wholly Groundless’ Exception to Delegation Clauses in Arbitration Agreements — If the agreement that governs the account in question does not contain the delegation language, then you might not have this leverage unless delegation is somehow incorporated by reference to the rules of the arbitration forum — as was the case in Schein.
  36. 1 point
    I would forget everything about that for now and focus on getting an MTC filed immediately.
  37. 1 point
    @MIOMH Here's an example of a NY attorney-prepared "Defendant's Motion to Amend Answer to add affirmative defense of lack of permissive use." https://www.jdsupra.com/legalnews/motion-to-amend-answer-61600/ Here's a snippet from a NY case; http://www.courts.state.ny.us/REPORTER/3dseries/2008/2008_50769.htm "It is well settled that arbitration has emerged as a preferred method for settlement of many controversies. New York codified its strong public policy favoring arbitration with the enactment of CPLR 7501[FN1] (CPLR 7501, 13-75 New York Civil Practice: CPLR P 7501.00). Arbitration clauses are valid and enforceable on such grounds that exist at law or in equity for any contract. To this end, arbitration agreements, like contract rights, [*3]can be modified, waived or abandoned. (See Sherril v Grayco Builders, Inc., 64 NY2d 261, 272 [1985].) It is generally assumed that the party who commences the action has waived its right to arbitrate. The same assumption does not apply to the defendant (De Sapio v Kohlmeyer, 35 NY2d 402,405 [1974]). However, the right of the defendant to compel arbitration is not absolute and can be forfeited prior to trial (Matter of Zimmerman, 236 NY 15 [1923]). "[W]here the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory" (De Sapio at 405). . . . Defendants' neglect to serve a proper demand until approximately twenty-two months after plaintiffs commenced this action constitutes an "unreasonable delay" (Gabor at 1001, noting that defendants' service of a demand for arbitration eight months after the action commenced was an "unreasonable delay" and constituted a waiver of defendant's right to arbitrate). Plaintiffs have spent time and resources actively pursuing this claim in the judicial forum and should not be prejudiced by defendants' failure to compel arbitration in a timely manner. Defendants have actively participated in this litigation by submitting an answer containing five affirmative defenses, procuring an order for discovery, and participating in two pretrial conferences (see De Sapio v Kohlmeyer , 35 NY2d 402 [1974], noting that procuring an order for the taking of a deposition is a factor in a defendant's waiver of arbitration; St. Paul Travelers Companies, Inc. v Shore Drugs, Inc., 36 AD3d 891, 892 [2d Dept 2007]"
  38. 1 point
    @fisthardcheese @BV80 @debtzapper @Robby8900 @Brotherskeeper @Pericles @Harry Seaward @Goody_Ouchless @Norfolk&Wayman Want to say THANK FOR ALL YOUR HELP with this journey. Couldn't of done it without your help. Everyone is friendly and very knowledgeable. Keep up the good fight against JDBs.
  39. 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
  40. 1 point
    Those are pretty straightforward. When I get home from work soon will give you more detailed answers and a set of those that you can send them.
  41. 1 point
    UGH. Too many times consumers assume that a provider is required to bill their insurance. They are not. Most do as a COURTESY but they are not required to do so to get paid. The instant you discovered they had not filed a claim you should have opened one. Now it is WAY WAY too late to file one and get the care covered yet you are still liable for the bill. When you go to the ER you sign a financial guarantee which specifically states that if your insurance does not pay you are still legally responsible for the bill. That is where you are now. Regardless of the reason your carrier did not pay so you are responsible for the entire amount. The upside is that because neither of you ever opened a claim you might be able to settle for less than what they are seeking because illegal rebating will not be in play. If you do not respond and answer them they are deemed admitted and will win by summary judgment. You need to post redacted copies here.
  42. 1 point
    Hi everyone, Just checked the status of my case - still "Pending". Court date is set for November (4ish months from now) Still haven't received a response to my BOP Responded to their Request for Admissions, Documents and Special Interrogatories back in Feb (5 months) Haven't heard anything from them since those requests were issued I'm not going to do any discovery requests - I'm just going to stay silent til I can subpoena their witness and expect that witness will be no-show
  43. 1 point
    1000% NOT accurate for Texas. Consumers in Texas can dispute at ANY time as long as they invoke the Texas Finance Code 392 when they do it. It does not matter how they found out about the debt or when. Texas is very consumer friendly and gives their residents WAY more options than most states.
  44. 1 point
    Just to let you all know about my experience. I pretty much did step-by-step what ASTMedic said to do. My trial with Midland was scheduled for next week. I was ready and prepared for it with all the help and tips provided with his experience with Midland. Midland sent a request for Dismissal-no ADR yesterday. I called the courthouse to confirm and the trial was vacated. Victory! I feel like I won the lottery. All thanks to you, ASTMedic!! Thanks so much for documenting your experience with Midland. It really helped me when I didn't even know how to begin or what to do. To everyone else going through this, you can do it too! Don't give up. It is alot of work. Alot of reading and research on the internet. Just watch your timeline to make sure things get sent in a timely manner. Good luck ! Thanks to everyone giving their input and advice on this forum. It helped me so much to know I could come here and get the answers and information I needed.
  45. 1 point
    In CA, a plaintiff doesn't have to attach those items to the complaint. However a plaintiff should have most of those items as CA law changed a few years ago and now requires that they have them before filing a lawsuit. However (as you noted), CA still sets a high bar for getting those items admitted into evidence at trial - that has not changed. If you know the rules & procedures (and follow them!) and object properly, an affidavit or bill of sale (or any other item a plaintiff produces) can't be admitted into evidence unless properly authenticated - meaning they have to produce a live and qualified witness from the original creditor and any other creditor/collector that has owned the debt.
  46. 1 point
    I wanted to give an update on my case. I had my CMC towards the beginning of December, and as others have said, it lasted maybe a minute long. A local lawyer sat-in for the JDB's firm; the judge asked if a date near the end of March was o.k. with both parties, we both agreed, the lawyer asked if I was a lawyer or the Defendant, for which I answered, and that was the end of it. I laid low until the 45 day mark came, and after looking at everything I had received for the case, I had noticed that the Plaintiff had originally asked for the trial to be no earlier than June. I figured that was due to their case load, so I decided my best plan for attack was to lay-low as long as I could. The Plaintiff's attorney had also sent in their CMC statement a little late, so this fed into my decision making process as well. I waited until day 35 to send off the DISC-015, hoping that they had forgot about me. I knew this would give me less time to possibly subpoena a witness along with everything else that needed to be done, but again, I felt this was my best chance. When I received a response from the attorney around the 20 day mark, it came in a single-letter envelope, which I figured was them trying to pull a fast one on me pivoting to who-knows what. It turns out it was a Request for Dismissal Without Prejudice. I have been checking online for the past week for my case to be updated online & today it was finally updated as Dismissed. I'm still in shock honestly, but beyond grateful. I want to thank @calawyer, @RyanEX, @sadinca & @gradys for all helping me with my responses & for their advice along the way. I also want to thank everyone who has posted their experiences on the site, as I have read through so many of them as well to try & build a knowledge base along the way. I would never have been able to accomplish this outcome without this site, and I can't thank everyone enough for their help & knowledge-sharing. I know a lot of people have been a lot more prepared, and filed a lot more paperwork to get less favorable results, so I know how lucky I am to end-up with this result.
  47. 1 point
  48. 1 point
    I got there and saw the rent a lawyer. He asked for me by name. I said yep and he asked to go out in the hall and talk (SOP). So he asked how we could settle this. I said with a dismissal and he was speechless and kinda cocked his head. So I went back in the courtroom. He asked if I had the subpoena I tried to serve and I said yep I made you a copy. Judge called us up and began looking at the MIL. The rent a lawyer proposed that CCP 1987(a) applied and that I should have served Midland directly. I countered that 1987(a) states that service in person is required and that serving a "witness" in San Diego would no longer be economical litigation. Judge took 15min in chambers and came back out and stated that the MIL was granted. He stated that CCP 98 clearly applies here and that the legislature wouldn't have written it as such if they didn't intend for it to be applied in that way. So then the rent a lawyer called me as a witness. Asked if I opened a CHASE card. I figured saying "I don't recall" could get me in hot water with a good judge so I said yes. I think it caught the lawyer off guard figuring I'd just lie. I answered "yes" to the questions about places of residence and if I got mail at those location. Then I answered "I don't recall" to the rest of the questions for things like balance and did I receive statements at my residence. The opposing counsel finished up his questions by asking if I was on any drugs or other medications that would affect my memory. I just plainly said "no" and he asked the question again and he got the same response. I think at that point the rent a lawyer was pissed I didn't cave on the stand. Judge asked if I wanted to make a statement. I said "yes about the card statements provided" and he advised me that it was on the record and opposing could cross so I said "thanks, no I don't want to make a statement" (I think that was his way of saying "are you sure you want to do this??" so I took his hint and stepped down). The judge seemed frustrated that the rent a lawyer called me as a witness in the first place. So after I stepped down the judge stated he is taking notice of the judicial notice for mileage (he almost seemed impressed I submitted it) and he would give us a written verdict in 2 weeks. Judge didn't seem pleased that Midland supplied a vacant address for the CCP 98. All in all he seemed to be on my side and was puzzled that opposing counsel would use 1987(a) as an argument since CCP 98 was clearly made for this type of case. He even stated that the two conflict with each other.
  49. 1 point
    Wow! This is awesome! Congratulations and thanks so much for sharing your story and documents. I love how your vanished like a "fart in the wind" LOL!! Sooo funny. Congrats again!
  50. 1 point
    http://www.creditinfocenter.com/community/topic/317482-need-fast-help-court-next-week/#entry1205384(Arizona Opposition to Summary Judgment) http://www.creditinfocenter.com/forums/there-lawyer-house/311922-sued-collection-agency-must-fight-post1145369.html#post1145369'>http://www.creditinfocenter.com/forums/there-lawyer-house/311922-sued-collection-agency-must-fight-post1145369.html#post1145369 http://www.creditinfocenter.com/forums/1142823-post11.html'>http://www.creditinfocenter.com/forums/1142823-post11.html http://www.creditinfocenter.com/forums/there-lawyer-house/311160-need-help-72-yr-old-grandma-served-broward-county-florida-post1138364.html#post1138364'>http://www.creditinfocenter.com/forums/there-lawyer-house/311160-need-help-72-yr-old-grandma-served-broward-county-florida-post1138364.html#post1138364 http://www.creditinfocenter.com/forums/there-lawyer-house/307888-response-bill-particulars-post1138246.html#post1138246'>http://www.creditinfocenter.com/forums/there-lawyer-house/307888-response-bill-particulars-post1138246.html#post1138246 http://www.creditinfocenter.com/forums/there-lawyer-house/310777-help-discovery-needed-against-midland.html#post1132212'>http://www.creditinfocenter.com/forums/there-lawyer-house/310777-help-discovery-needed-against-midland.html#post1132212 http://www.creditinfocenter.com/forums/1129946-post83.html'>http://www.creditinfocenter.com/forums/1129946-post83.html http://www.creditinfocenter.com/forums/there-lawyer-house/310449-asking-advice-missouri-resident-post1128840.html#post1128840'>http://www.creditinfocenter.com/forums/there-lawyer-house/310449-asking-advice-missouri-resident-post1128840.html#post1128840 http://www.creditinfocenter.com/forums/there-lawyer-house/307067-being-sued-midland-llc-also-new-2.html#post1121305'>http://www.creditinfocenter.com/forums/there-lawyer-house/307067-being-sued-midland-llc-also-new-2.html#post1121305 http://www.creditinfocenter.com/forums/there-lawyer-house/309532-motion-quash-subpoena-preserve-objections-trial-appeal.html#post1119991'>http://www.creditinfocenter.com/forums/there-lawyer-house/309532-motion-quash-subpoena-preserve-objections-trial-appeal.html#post1119991 http://www.creditinfocenter.com/forums/1122217-post91.html'>http://www.creditinfocenter.com/forums/1122217-post91.html That is the ones I have posted. Read the threads also. Thank you