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Showing content with the highest reputation since 07/17/2006 in all areas

  1. 16 points
    Arbitration Overview Arbitration is a clause that is found in most Credit Card Agreements. Your Card Agreement will state that you may use either AAA or JAMS as the arbitration firm. The Card Agreement may also state something about who pays for arbitration. It may say that "they" (the OC or JDB) will pay all of your filing fees. This means arbitration will cost you a grand total of $0, while the creditor will be billed a minimum of $5,000 to complete an arbitration (and many times that price can climb much higher). However, even if your arbitration clause is silent on costs, the rules of the arbitration firm cap all consumer fees at $200 for AAA and $250 for JAMS. This means you would never pay more than $250 max, while the company will still be paying many thousands to arbitrate. Just due to this cost structure alone, almost all JDBs will refuse to arbitrate. This is why getting your case out of court and into arbitration - especially when facing a JDB - is almost like having a golden ticket to a win. Of course, like everything there is no guarantee. However, the odds are strongly in your favor with arbitration against a JDB. (If you are dealing with an OC - especially a big bank like Discover or AmEx - then your arbitration experience and strategy will be much different than with a debt collector JDB like Midland or Cavalry. More details on differences in taking an OC bank to arbitration are below). Strategies of arbitration: 1. It's not a Bluff, it's arbitration - You are going to ask the court to move your case to arbitration because that is the proper forum per the card agreement. This is not a "bluff" to scare off the JDB. This is a strategy that must be followed through with. It is ok if the JDB does not magically drop the case just at the mention of arbitration. The JDB will continue to work the case as if arbitration was never said, even after you file a Motion to Compel Arbitration in court. The JDB may even pay the initial filing fee of $900 to follow you into arbitration once you start the case. However, soon after that $900 filing fee, the JDB will be sent a first arbitrator retainer bill of about $5,000. This is why you continue arbitration. You are not bluffing, because your case is the same in arbitration as it was in court. You will be making the same arguments and have about the same chance of winning on those arguments (slim, in all honesty). The big difference here is that the JDB must now pay large sums along the way to allow this to happen. So you are not bluffing, you are just moving your case into a forum that they do not like and which forces them to make a cost/reward analysis on whether to continue the case or not. 2. Settlement Opportunities - The goal of arbitration is to create a situation that gives you the best settlement advantage (i.e. settling for $0 with a mutual dismissal with prejudice). There are 3 key points where this comes into play. #1 - After the court grants your MTC and before the JDB pays the $900 filing fee to the arbitration firm. #2 - after the JDB pays the filing fee but before their $5,000 retainer is due (after the arbitrator is chosen). #3 - After the first conference call and before the discovery deadline, just before the hearing where another large retainer bill is due. If the JDB does not reach out first to talk settlement, these are the points I would send an email letting them know I am willing to offer a mutual dismissal with prejudice (minimum). Do not forget to always include an expiration date for your settlement offer. I like to make my offers expire on the same day the next event is due (i.e. a payment deadline for them to pay the arbitration fees, or the discovery deadline date, etc). If they do not agree to your offer, or counter for a higher amount you can not or are not willing to pay, then I just decline the offer and allow arbitration to proceed to the next step until you get to the next key settlement point where I make my same offer again with a new expiration date. 3. Object. Object. Object. - In arbitration, if you do not object to something in writing you lose your right to it. Therefore, anything that happens that falls outside the arbitration rules and especially the supplemental consumer rules, you must object in an email to the arbitrator and CC'd the JDB attorney. Objections not only preserve your rights under the consumer rules, but they also can create side issues that must be dealt with by the arbitrator. The arbitrator's hourly rate to respond to these side issues can really eat up the JDB's $5k retainer before you even get to discovery. Especially if you have phone hearings on these side issues (HINT: always ask for a phone hearing as part of an objection). This causes arbitration to be slow and expensive, which can position you into a better settlement opportunity. 4. Initial Conference Call - This first call once the arbitrator is appointed is where you can set the tone to let the other side know that you are not bluffing and you mean business. They should come away from the call knowing very well that you intend to see this case all the way through to the final hearing (even if you really don't want to). This call is usually fairly quick and informal. It is designed to set the scheduling of discovery and a hearing date. However, you should assert some things during the call that tips the other side into knowing it will not be an easy push over win like they would have in court. I would ask the arbitrator for the other side to submit the name of their witness they will bring to the hearing with personal knowledge of the alleged account. If not already covered by the arbitrator, I would ask for an in person hearing. I would be prepared to give a time-frame when the arbitrator asks how long you will need to present your case at the hearing (I would say at least half a day - aprox 3 - 4 hours). 5. What About an OC? - If you are dealing with an Original Creditor (not a JDB) they may take the arbitration all the way through to the final hearing. Money is far less of an issue with the big banks, and unlike a JDB, these banks are not counting on collections as their sole source of income. Therefore, the OC banks will proceed with arbitration with much less trepidation than a JDB, so you must modify your strategy and expectations. With some OC's, they will never agree to a mutual walk away, however, using arbitration may help you get a much cheaper settlement offer than you would by staying in court. My goal with an OC would be to use the long, slow arbitration process to buy some time to save up a lump sum to offer them for settlement. You can use the same settlment opportunity points as yo would with a JDB, but instead of "mutual dismissal", your offer may be to pay 50% of the debt, for instance (or what you can realistically offer as a lump sum payment) in exchange for a dismissal of their court case against you. If you can't come to an agreement and go to the hearing and "lose" the final hearing with an OC, check your card agreement for any arbitration appeal language. Some OCs like Discover and AmEx have an appeal option written into the contract. The appeal is before a 3-arbiter panel. This means the arbitration process starts all over again, only this time you have 3-arbitrators which triples the bank's costs. This is where arbitration costs can skyrocket well over $100,000. After you file an appeal and get 3 arbitrators appointed, this is likely the best settlement opportunity with an OC. (when they are staring at a new $20k initial arbitrator retainer bill after just paying around $10k - 20k for the first arbitration in total). Starting Arbitration First thing is first - Your court case. If you have been sued, you must answer by the court's deadline. Don't worry about the actual arbitration case for now. You must file your answer and/or Motion to Compel Arbitration with the court before your deadline. (A sample Motion To Compel Arbitration is at the bottom of this post) In court, the important thing to remember is when you are asking for arbitration, you effectively put everything about the alleged debt and account in the back seat. You are saying that the court has no jurisdiction to hear this subject and that it is for arbitration only. Therefore, do not fall into the creditor attorney's trap of trying to continually bring back up the debt and anything related to it. Do not answer their questions prior to going in front of the judge about the debt. Instead you just assert that it is a matter for arbitration and you will be asking the court to grant your MTC. When facing the judge, they may talk to the attorney first who will go into the information about the debt. Just wait for your turn to speak and state that you have a pending MTC that speaks to jurisdiction and that you would like to have that heard first before getting into the merits of the case. Getting a granted MTC is like a golden ticket against a JDB. This should be ALL that you focus on in court. When you file the MTC you essentially put a wrench into the JDB's auto-pilot lawsuit mill. The ONLY question now before the court is whether there is a valid arbitration agreement between the parties (you will show that there is with your card agreement and affidavit). And if there is found to be a valid arbitration clause, then according to case law (from state and SCOTUS), then the court MUST order arbitration. This is the one and only issue that should be covered in court. AFTER the court grants your MTC and orders the parties to arbitrate, then you should move on to actually filing the case in arbitration. Filing your Answer and MTC in Court VERY IMPORTANT NOTE: Before doing anything in court, you should look up (or get a copy from the court) your local court rules! All courts have their own set of rules and it is impossible for anyone on this board to know for certain your specific court's rules. You especially want to read the rules on filing an answer and filing a motion and be sure you are complying with those rules (and time-frames) when you are taking these actions in court. When you are sued, you are required to answer the lawsuit within a certain time-frame. That time-frame is different for each court, according to the rules of that court, but a general time is between 20-30 days. In some courts, you are allowed to file a Motion in place of an answer. However, in this thread, I suggest filing an answer WITH your Motion to Compel Arbitration (MTC). This is not a requirement, but it may change this one element in your case: Filing a MTC only (in place of an answer) allows the Plaintiff to dismiss the case without prejudice on their own before the MTC is ruled on by the judge. However, if you have filed an Answer AND the MTC, most courts do not allow the Plaintiff to dismiss the case on their own and they would need to get your cooperation to file a joint stipulated dismissal. When that happens, you have the right to tell the attorney that you will only agree to a dismissal WITH prejudice (and this permanently puts an end to your case and the alleged debt too). Very Important Note: It is imperative that when you file an answer, you mention arbitration as a defense. In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration. In your answer, after you deny all allegations in the complaint, you should create a new section with the following title: “Affirmative Defense”. Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. Along with your MTC it is generally a good idea to include an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise". A quick google search will show you how an affidavit should be formatted and worded. It does not have to be complicated or special, it just has to be your own words stating you have the correct card agreement. The Affidavit should be notarized before filing with the court. This is the only document that is necessary to notarize, as it is a sworn statement. Having the affidavit is also a good way to counter the most common argument a creditor will make against your MTC, by saying you have the wrong card agreement. Your affidavit is your sworn testimony and the only way to counter this is for the Plaintiff to present a witness with knowledge of the bank's card agreements during the time your account was active. (In other words, it would have to be sworn testimony from the Bank itself, and not the JDB or the attorney's word). Because of this, your affidavit usually eliminates any doubt that the Card Agreement is accurate and valid. This answer and your MTC can be filed at the same time. However, if you are up against the deadline to file an answer, the answer is the most important element to avoid a default judgement. The answer should be a short and easy document to file, so get that done first if pressed for time. You may then file the MTC a week or two later (as soon as you can, but no later than allowed by the court rules). Some courts require that you set a hearing date for your MTC. If your court requires this, make sure you do this at the time you file. In some instances, you may be required to contact the other side's attorney to work out a date for a hearing after you file the MTC. Make sure you know your court's rule on setting up a hearing. Some courts automatically schedule a hearing for you, and in some cases the judge will rule on your motion without a hearing at all. This is a matter of a court by court basis as they all operate in their own way with their own rules. Checking court rules on filing motions is essential. Filing The Arbitration Case Go to the website of either AAA or JAMS, depending on which one your card agreement mentions. Find the document titled "Demand for Arbitration". The instructions for filing are at the top of this Demand form. Remember that you are filing for CONSUMER arbitration, so follow the instructions for CONSUMER cases. When filing arbitration, I very strongly recommend filing some claim against the JDB. Remember that when you ask for arbitration and file it, you have now flipped the roles. YOU are the "Claimant" and THEY are the "respondent". This is essentially like you are now "suing" the JDB, only in arbitration instead of court. Think of it just like that. You would not file a lawsuit against yourself, so do not do it in arbitration. I would never mention THEIR claims against me, nor the debt in any way. Instead, I only file MY claims against the JDB. Do not worry at this stage about the details of your claims because this initial claim is allowed to be changed, added to or dropped at any time before an arbitrator is assigned to the case (and even after, you can still make changes with the arbitrator's permission). If you have nothing very strong with proof against the JDB, I would file with something such as "violations of state and federal consumer debt collection laws" or perhaps, "Violation of the Fair Debt Collection Practices Act", etc. Or even a simple "Billing dispute" will do if you have no violations of law against them. Again, it doesn't need to be more detailed then that at this stage and if your claims never pan out, you have the ability to drop them later (or you may find NEW claims to add if the JDB violates the laws during the ongoing case). When sending in the Demand for Arbitration, I never send money initially. If you are required to pay the $200/$250 consumer filing fee (or any portion of it), then the arbitration firm will tell you to submit that in order to continue. They will never reject your filing, but will send you a case number and request for payment to move forward. Having the case number is key evidence that you filed the case (which may be needed for Court later). If the Card Agreement states that "they" will pay for your filing fee, I will include a cover letter with my Demand form stating that per the Agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS. Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time. I send both CMRRR and retain the green cards. Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail. If there is ever a question about service after I file, I will have the green card to submit as proof if needed. Remember, that this is now YOUR case against the JDB. It will be up to the JDB to file a COUNTER CLAIM in arbitration for the alleged debt. They have a set amount of time per the rules to file a counter claim. Make sure you know the rules. It will not be uncommon for the JDB to not file their counter claim in the allowed time frame. If they file after the allowed time, you must file a written objection noting this and ask for their claims to be stricken as untimely. Always file written objections to EVERYTHING that falls outside the rules in arbitration. When you object, also ask for a hearing on the matter (see arbitration strategies section above). NOTE: It is likey that in such situations, the arbitrator will rule in favor of the creditor almost every time and allow things like untimely filings anyway. Do not let this discourage you. The point is that you filed the objection, forced at least a response from the other side and for the arbitrator to make a ruling. All of this cost them time and money. Even if nothing goes your way on objections, you should continue to make them for every problem you encounter. They add up and they increase the pressure on a JDB (or an OC) to settle. The fact that using this Arbitration method has now reversed the roles (you are the claimant who has brought claims AGAINST the JDB) AND combined with the fact that the Court has granted your MTC, means that the JDB is now stuck between a rock and hard place. They can't just dismiss the court case on their own (they need your agreement for a stipulated dismissal because of the granted MTC) and they also can't drop the arbitration case without your agreement (not only is it not their arbitration case, but yours, but they would also be violating the court order to arbitrate). Because of this, you are now firmly in the driver's seat. The JDB does not want to spend a ton of money and time to arbitrate, but also does not want to violate the court order. This means YOU are in control of the settlement agreement. You can tell the JDB that you will stipulate to a mutual dismissal with prejudice (meaning you will dismiss your arbitration case against them with prejudice and they will dismiss the court case against you with prejudice). You win. Filling Out The JAMS Demand Form The Jams Demand Form is located on the JAMS Website at https://www.jamsadr.com/rules-download/ Tips on filling out the JAMS "Demand for Arbitration Form" are as follows: Instructions: Be sure to read and follow the instructions for filing a case on this first page of the form. Respondent: The respondent is the JDB/OC/Creditor who sued you. They would be listed as the "Plaintiff" in the lawsuit, but are the "Respondent" in arbitration because you are the party filing the case here. Fill out the JDB/OC/Creditor's name and contact information here with the law firm or attorney's information below them in the "representative" section. If you know or can find the attorney or law firms email address to add here, it will be helpful as most of JAMS' communications after the initial filing will be by email. This can also expedite the confirmation of your case being filed in JAMS. Claimant: You are the claimant. Fill out your information in this section and leave the "representative" blank. Mediation in Advance of Arbitration: Do NOT check this box. Nature of Dispute & Claims Sought: This is the section where you can briefly list what claims you have against the creditor. Again, this can be as simple as "Federal and state consumer debt collection law violations", or listing the actual law or statute that was violated, or listing "Consumer debt dispute". Following that with something such as "Seeking Actual, Statutory and Punitive Damages". Again, I would suggest to NOT mention the lawsuit filed against you on this form. Amount in Controversy: Use your best judgement. If you have no violations to claim against them, this could be the alleged debt amount, or it could be the alleged debt amount plus $1,000 for an FDCPA violation, or the debt amount plus $2000 for an FDCPA and FCRA violation. Or perhaps you don't want to list the debt amount at all and just have 10 TCPA call violations and want to claim $5,000 (10 TCPA x $500). Again, use your best judgement. Arbitration Agreement: In this section, I simply spell out where the Arbitration Clause is located. It usually looks something like this; "Section 7 on page 15 of the attached Cardholder Terms of Use Agreement". Request for Hearing: YOUR city, State. This is the location that JAMS will select should an in-person hearing take place. Election For Expedited Procedures: Do NOT check this box. Again, the entire point of this strategy is to make the process slower and more expensive for the other side. Checking this box will defeat that entire purpose. Signature: Sign and Date this section (should go without saying) Consumer and Employment Arbitration: Check the box that says "YES. This is a consumer arbitration." Respondent #2: If you have claims against a second entity, such as the law firm representing the JDB, then you would add them as a second respondent in this section. That is all. You may leave the remaining sections blank and you are ready to file. Again, be sure to double check the requirements to file back on page 1 and follow the instructions carefully. Filling Out The AAA Demand For Consumer Arbitration Form The AAA Demand For Arbitration Form is located at https://www.adr.org/ConsumerForms This form is a little more straight forward and shorter to fill out than JAMS. The instructions for filing are located at the bottom of this single page form. I always use the email address at the bottom of the instructions to send in my AAA case filings. I print off the filled out form and my Arbitration Clause (AAA does not require the entire card agreement, only the arbitration section) and any other item you are subitting with your case. I then scan the documents to a single PDF file and attach it to my email. In the body of my email, I explain that I am submitting a new consumer arbitration case and (if stated in the card agreement) that the contract states that the business is to pay all filing fees, so I request that the business forward all filing fees directly to AAA. If you need help filling in the sections of this form, see the answers to the JAMS form above, as they are essentially very similar. Sample MTC (Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea) MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION. (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY. (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT (d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US. (e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT. 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”. 6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 7. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration. Respectfully submitted this day ________________, 2014 (Your name), Defendant, pro se Sample Proposed Order Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order. Making the Judge's job easier to grant your MTC can't be a bad thing, IMO. Here is a sample Proposed Order you can include in a seperate page with your MTC: ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION Case No. xxxxxxx : COURT OF XXXXXXX COUNTY _____________ (name of plaintiff) VS. Case No. XXXXXXX _____________(your name) The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED: _______ GRANTED / _______ DENIED Further, this case shall be stayed pending the outcome of private arbitration. This _____ day of _________________, 2018 By: ________________________ Judge of the ____________ Court
  2. 8 points
    I WON TODAYYYY!!!! MIDLAND FUNDING filed a lawsuit against me in Lancaster County Pennsylvania claiming that I owed a debt to an old credit card company. They had a lawyer out of Philadelphia Pennsylvania file against me in my local Magistrate Office. I was in the middle of moving when the first notification came through and missed the court date. Thank God the judge did a little research on Midland funding and decided to extend the date requiring Midland to prove that they own the debt and to prove how they got to the amount of that debt and to prove they have the right to have the debt. I think he called it 319b a local Magistrate ruling they can use. So when the new date came up I showed up for trial. I WAS SO SCARED!!! I ALMOST DIDN'T GO!! When I came across this website I began to gain confidence and decided to fight back. Midland funding LLC chose and attorney in Philadelphia to send me a letter that only showed the amount the last 4 digits of the credit card number and my name. They filed that letter with the local magistrate and I received a certified letter saying that I was being sued. I began to read about who Midland funding was because I did not know anything about them and I learned that they were buying debt by the thousands for only Pennies on the dollar and it made me even more angry. I put together a document "answer to the complaint" and a "request for documents", hoping Midland would have to prove their case. When I arrived there I was upset but ready to battle. They sent me into the Courtroom. I stood up as the Judge walked into the room. He said Thank you and allowed me to sit. He said, I did my research on Midland Funding and found they are a debt buyer and for pennies on the dollar. He said, Do you see Midland Funding or its Reps in the room? I stood up and said, no your Honor. He said, well do you have anything to say to the court today regarding your case? I stood up and said, I have prepared an answer to file with the court and he interrupted and said " well that's the beauty of your local court and answer is not required" He said AS HE LOOKED AT THE EMPTY PLAINTIFF SEATS WHERE MIDLAND WAS TO BE, " do you have any requests of the court today considering Midland funding is not present? And he kept saying that and then I got what he was saying and I said "um your Honor, I would like the CASE DISMISSED?" In a questioning voice. The Judge said CASE DISMISSED, DEFAULT JUDGEMENT ENTERED FOR THE DEFENDANT He reminded me they have 30 days to Appeal and good luck!!! YEAH, SO PLEASE SHOW UP NO MATTER WHAT!!! NO MATTER WHAT!!! TRY NO MATTER WHAT!!! #HappygirlinLancasterCounty
  3. 7 points
    Yes! I walked into the courtroom, sat down, heard someone mumble my last name up front and I said "that's me" and he goes "your case has been dropped you can go".
  4. 7 points
    A Look Back at 2016 There have been many successes over the past year for members of this site. Unfortunately, a few disappointing rulings have taken place, but I suppose that's to be expected. As the saying goes, "we can't win 'em all". Thanks to the knowledgeable members here, a number of collection lawsuits were dismissed in favor of the consumers. Some of those dismissals were a result of consumer/defendant demands for arbitration. A special thanks goes out to @fisthardcheese for his vast knowledge of and experience with the procedure. Thank you! Other members have taken it upon themselves to learn about the arbitration procedure in order to help new members. Thank you to @Harry Seaward, @shellieh98, and @Coffee_before_tea. I'm sure there are other members who have educated themselves about the procedure, so we thank you, as well. A special thanks to @Harry Seaward due to the fact that his willingness to learn about the arbitration procedure has enabled some Arizona defendants to successfully defend against lawsuits in very unfriendly courts. Some lawsuits were dismissed without a demand for arbitration. California is a prime example. Our California "regulars" are both knowledgeable and devoted. Due to their knowledge of CA civil procedure, the vast majority of debt collection lawsuits filed against the CA members of this site were dismissed. @calawyer, @Anon Amos, @RyanEX, @sadinca, and any CA member I've failed to mention, thank you! You guys rock! @texasrocker deserves thanks for his help to TX consumers which has resulted in dismissals. All of us, not just TX consumers, appreciate his help and devotion. We thank @debtzapper for his helpful case law research and constant words of support to members. If one ever needs supporting case law, he's the one most likely to locate it. Medical debts can be a "different animal". Thankfully, we have @Clydesmom. While many of us don't have to deal with such debt (a blessing), there are those that do. We are grateful that she can offer information and advice on that issue. @willingtocope and @Dylan Riggs are great admins. We thank them for their help and support. I'm sure there are other members that deserve a special mention, so I apologize to those I've omitted. Every member who offers helpful information deserves our appreciation. Needless to say, with so many different personalities on this site, there's been some contention. I believe in debate because it's provides the opportunity to both offer one's opinion and consider the opinions of others. In the future, I hope we can have healthy, informative debates without resorting to insults. Have a happy, healthy, and prosperous new year!
  5. 6 points
    UPDATE: Just got back from my hearing on my Motion to Compel Arbitration and Plaintiff's Motion for Summary Judgement. Judge granted my MTC and gave me 60 days to pay the $200 filing fee. We have another hearing in April and as long as I have paid the $200 filing fee, the judge is closing the case. Judge said, "I am asking this as a compliment, are you an attorney by trade and if not what trade did you study?" Me: (laughed) and said no I am not. I have an Associates in Accounting but I stay home and raise my kids. @fisthardcheese @Harry Seaward and everyone else on this forum, I owe a big shout out to you for receiving this compliment! Definitely couldn't have done ANY of this without everyone's help on here! I will be forever thankful for all the help from everyone here!
  6. 6 points
    DISMISSED WITH PREJUDICE!!!! 🍾(Both lawsuits)
  7. 6 points
    @Brotherskeeper You have done an outstanding job helping the OP. Thank you!
  8. 6 points
    Hello, Here is the response I just received. I will hold my breath until I see the documents.... "My client will go ahead and accept your proposed settlement below. I will send you the settlement documents that you will need to sign and send back to me via email. Once we have received the signed settlement documents back from you – our office will notify the court of the settlement, and the court may remove the case from the docket".
  9. 6 points
    I know its been awhile.. and sorry for not updating about the case.. Anyways.. the week after I sent the letter (elect arbitration) to midland funding.. I received their complaint and sued me. During that time I haven't filed with JAMS. So, Answered their complaint with my MTC arbitration. Went to motion hearing. I was really scared. I panic so cant talk to the Judge properly. It was a bad experienced. The Judge want me to do the steps to arbitration in OC agreement. ( which I didn't do because plaintiffs filed lawsuit already I thought I need to wait for the Judge to grant my motion before I go forward.) Then, then plaintiffs asked for continuance and the Judge gave us 30days. After the hearing, I Followed the steps in the OC agreement for arbitration. With guidance of this forum, it was easy to do. Sent notice of arbitration to plaintiffs attorney, to midland and to synchrony bank with my JAMS Demand forms. Then I waited until they received my letter. After that I sent my JAMS demand form to JAMS. Few days later, JAMS received my demand forms and received an e-mail from them. I Print everything and made copies of all the documents I might need to show for the Judge. 30days passed and this morning was the 2nd hearing. The plaintiffs didn't show up. So my case got dismissed. They said they going to post the Order online and wait 24hrs. And I would like to THANK YOU ALL for the help and advices. The thread about arbitration really helped me A LOT! Again, thank you so much!!
  10. 6 points
    Not sure why you're taking this so personal. When an entity charges you $40 for neosporin and $75 for a bandage I am not sympathetic. Sorry.
  11. 5 points
    I will apologize for my absence at another time. But I had to post the news of this gift we received today from the California Supreme Court. Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. The case is Meza v. Portfolio Recovery Associates http://www.courts.ca.gov/opinions/documents/S242799.PDF
  12. 5 points
    @fisthardcheese @Harry Seaward @Brotherskeeper Update! The plaintiff's office reached out to me and offered to Dismiss WITH Prejudice at our upcoming status hearing in exchange for me to drop my AAA claim. We sort of tentatively agreed over the phone and they emailed me the agreement request. At this point then, I'm glad its sort of coming to a close now. Is there anything else I should prepare for prior to our hearing? I'm expecting to sort of just be handed a copy of the Order stating Dismissed With Prejudice and for me to drop my AAA case and I wouldn't hear about this account ever again.
  13. 5 points
  14. 5 points
    Hey everyone, just wanted to post an update. MCM was true to their word, dropped the suit and they are sending a letter stating my wife is no longer obligated for this debt. All I had to do was submit medical documentation and her social security award letter. Thanks for everyone's help!
  15. 5 points
    Well, the attorney was a no show after all that. Got the case dismissed. Thanks for the advice all!
  16. 5 points
    Well, got a phone call today. I couldn't answer it because I was working, however I had a voice mail. It was the Plaintiffs lawyer asking me to call him back. So i call back after i get off work, he answers and I say "Hello *** its *** returning your phone call." Oh well I wasn't expecting a phone call back as nobody ever calls back. I laughed and said well here I am. He then says so, I talked to my client yesterday and they are willing to drop the case with a mutual dismissal with prejudice. I said sounds good! So now I need to get in contact with JAMS and drop the case once I get all the paper work in order. Couldn't have done it without all of your help!!! @fisthardcheese@Brotherskeeper@debtzapper@BackFromTheDebt@nobk4me@Goody_Ouchless@Xerxes@BV80
  17. 5 points
  18. 5 points
    We have seen a case or two where the judge asks to see the arbitration clause and says "sorry, counselor, but that's the contract you bought," before granting MTC. So, number one, have a copy handy with the relevant section(s) highlighted. In these cases, the judge also tries to warn about potential costs and asks if you are sure. Don't be scared - you know that your exposure is limited by the rules. A simple "yes, your honor," will do. Plaintiff's potential arguments: 1) The clause doesn't apply to us. The answer to that is basically "are you freaking serious?!" You will need to find something more professional to say, obviously. 2) Arbitration will cost more than the debt is worth. Again - "It's your contract." 3) Too much litigation has already taken place. That one depends on jurisdiction. It looks like you elected arbitration in your answer, so you are good. 4) Small claims/debt collection exception. It looks like Synchrony has "we will not require you to arbitrate" small claims or collection case. I believe we have seen lawyers argue that that means the matter is not eligible for arbitration. The answer to that is that "they" aren't "requiring" you to arbitrate, "you" are "electing" to have this settled in arbitration. 5) We have seen a couple cases where plaintiff comes back with some crazy case law that mentions arbitration, but never applies to the matter at hand. That you'll have to address if it comes up - probably with a continuance to have time to research their argument. 6) They may send you into the hall to discuss, where Plaintiff's lawyer will lie about costs, etc. Remember that you are the same as a lawyer in this matter and anything unethical opens opposing counsel up to a Bar Complaint. A lawyer is not permitted to knowingly lie to opposing counsel without being opened up to sanctions. Others disagree, but if I were in your spot, with a case worth about $1000, I'd request a moment "in the hall," with opposing counsel and explain that I'm not some rube that just fell off the turnip truck and that we both know that his client does not arbitrate these cases. I'd say "in the interest of saving us both time, and you money, would like to just dismiss today?" Maybe even have a dismissal thing printed out for everyone to sign...
  19. 5 points
    Greetings all. Here's an update on my case. I ended up hiring a lawyer for my appeal. It was well worth it. Lawyer did a great job with our briefs. A few days before we were scheduled for oral argument, CACH contacted us to discuss a settlement. Just heard today that it's official. The judgment has been vacated. The case has been dismissed with prejudice. Happy New Year! Keep up the good fight!
  20. 5 points
    calawyer you da man! Judge looked over the CA Supreme Ct case you cited and said he agrees that my case constitutes balance billing and scolded the jdb for even bringing this case. Case dismissed and will be filing to recoup my expenses. Glad I listened to you and a few others on this forum and not the naysayers that automatically assume the hospital is always in the right. Thank you!!!!!
  21. 5 points
    I wanted to follow up on my case. I received the dismissal letter from the court yesterday. The case was dismissed with Prejudice after settling with Midland at $575 for the $18xx claim. I believe the Arbitration defense is what incited them to settle. My lesson learned from this situation is: - start immediately in your response to the claim - listen to this group intently (they know what they are talking about) - do you own research so that you can grasp the concepts and procedures better yourself Thanks again so much Harry and all the others that assisted on this. Such a great group and resource.
  22. 5 points
    This is what I recommend to get the ball rolling on arbitration. Send a letter to Plaintiff's attorney informing them that, in accordance with the controlling agreement associated with the underlying account, you are electing arbitration to settle Plaintiff's claims against you. Keep it simple. One or two sentences is sufficient. Be sure to attach a copy of the credit card agreement to your letter. Prepare an Answer to the lawsuit in which you line-by-line deny all of Plaintiff's claims except your name and address (and marital status, if it happens to be correct). In your answer, make a section titled "Affirmative Defenses" and under that state that you have notified Plaintiff per Exhibit A that you elect private contractual arbitration to settle their claims against you, and therefore believe the court does not have subject matter jurisdiction over this lawsuit as all of Plaintiff's claims are now subject to private contractual arbitration. Your Answer doesn't need to be complicated. Attach a copy of the above letter to your Answer as Exhibit A. Prepare a "Motion to Compel Private Contractual Arbitration (Hearing Requested)" (name it that, including the "(Hearing Requested)") in which you ask the court to order the parties into "private contractual arbitration in accordance with Arizona Revised Statutes §12-1502 and the attached letter and agreement, Exhibits A & B respectively, that is controlling on the underlying account". Inform the court that you want a hearing on the matter. As with the Answer, don't make your Motion to Compel (MTC) complicated. Attach your letter as Exhibit A and the Affidavit (see below) and Agreement at Exhibit B. Prepare a jurat affidavit (google the format for Arizona) in which you swear under oath that the attached agreement is a true and correct copy of the agreement that was in effect during the life of your account. Your affidavit must be notarized under oath. Be very certain what you claim in your affidavit is true - otherwise you will be committing perjury. (I found a Q4 2012 Barclay's agreement you can use to compare your agreement with. ---> creditcardagreement_7593.pdf) File your Answer within 20 days of when you were served. File your MTC (with copy of letter and Affidavit and Agreement attached) fairly soon after, if not the same day as your Answer. Contact AAA at the phone number and/or website provided in the agreement. Inform them you have been sued and the Plaintiff's claims are subject to arbitration by AAA and you want to know what you need to do to get started. I would record this phone call if at all possible because they may tell you that the case cannot start until Plaintiff pays their portion of filing fees. This is important because Plaintiff may instead try to claim you have to do something first. So here's how this should work. After you file your MTC, Plaintiff has 10 business days to respond. If they respond, you have 5 days to file a reply to their response. It's at that point that you would cite caselaw relevant to your motion. The Court then has two options under the Rules. It can grant your motion without a hearing, or it can set a hearing for oral argument on the motion. Some courts have denied the motion with no hearing. This is improper under the current Rules of Civil Procedure, but the only remedies are a Motion for Reconsideration (which I do NOT recommend) or an appeal (which is a hassle and could be costly depending on your financial situation, but I HIGHLY recommend going this route on any denied MTC). If the MTC is granted and Plaintiff is forced into arbitration, they will dismiss their lawsuit against you and you walk away. If the MTC is denied, you can opt for an immediate appeal (recommend) or try to challenge their claims in court. I will tell you from personal experience and all of the cases I've seen come across this board, your chance of beating this in court is about 10%. Basically you have to end up with a judge that doesn't accept Plaintiff's evidence or a case where Plaintiff drops the ball with their documentation somehow. So you really want to concentrate as hard as you can on first getting this into arbitration. If that doesn't work, we'll help you with a Plan B. In your case, there is a clause of the Arbitration provision that talks about "Small Claims Court". Midland has been known to try to say this clause exempts their claims from arbitration. In other cases, the wording of the agreements was much more clear about keeping small claims cases out of arbitration. In your case, the agreement says a claim "may" be pursued in a small claims court "provided the action remains in that court". There's really nothing at all in your agreement that says a claim filed in small claims court must remain there, and I would argue the "remains in that court" clause leaves the door open for the Court to order the parties into arbitration without being in opposition to the agreement. Also, I would argue the definition of "small claims" is open to interpretation because it says "Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction". "Equivalent" requires some research and analysis of both court systems to be able to establish what the AZ equivalent of a Delaware JP court is.
  23. 5 points
    UPDATE: Another DISMISSAL...this one (our second one) was just before trial! We had a trial time of 10:00 a.m. and Midland's attorney filed a Dismissal on 9:38 a.m. We didn't even arrive at the courtroom until 9:53 a.m.! Thanks to Calawyer and Anon Amos, we were ready for war, but we didn't get a chance to show what a frivilous lawsuit this was. We feel kind of sad about that, but we're jubilant that WE WON THE CASE. My most deepest and most sincerest thanks and gratitude to Calawyer and Anon Amos. Without you, I would've been a nervous wreck, would have suffered too many sleepless nights, and would have had high blood pressure! Your calm and insightful advise got us through this second case with flying colors, and when we felt down and defeated, you were there to offer the kindest words. THANK YOU! THANK YOU! THANK YOU!! I love you both with all of my heart!
  24. 5 points
    Yes, the attorney was mad because you prevented her from getting the default or consent judgement with no work on her part, which is what she expects to happen. If those attorneys intend to put ANY work into a case, it is merely to intimidate a consumer with that stack of papers, at least half of which are not admissible in Magistrate court anyway if one knows the rules. But you did a great job by reading here and preparing yourself, having your MTC and not backing down when she lied about how "expensive" it is, implying you will be on the hook for even a single dollar of that (you're not). The Synchrony agreement states they will pay for all arb fees, so when I file my arbitration with JAMS I just send a cover letter stating that this is what the agreement says and that I am requesting that PRA forward my consumer portion of the filing fee directly to JAMS. Make sure you read the JAMS Demand form carefully for instructions on how to file. You need to send JAMS 2 copies of each , the Demand Form and Card Agreement. Send it CMRRR and keep a copy of what you send too in case you need to show up to court before you get a response from JAMS. It has become more common for the Magistrate judges to set a new hearing date rather than dismiss cases. Don't let that rattle you. Also, PRA is not going to participate too far into JAMS. They just don't do that. My guess is that once you file and JAMS sends the commencement letter, you will find a dismissal from PRA on the court case soon after. JAMS can move slow, so just prepare to show up at your next court date with the proof you filed and let the judge know you are still waiting on JAMS to set a hearing date, etc. Rinse and repeat until PRA quits. I like people who do their homework ahead of time and stick to their guns in the face of these professional bullies like the PRA attorney. You continue to do that and you won't have to worry about this issue for too much longer.
  25. 5 points
    With the help of the posters in this forum, we managed to get three cases dismissed against us: In total, we were able to prevent about $4,500 in judgements against us. We were so terrified when we were served with the first two...and then the third came, and we were just about pushed over the edge. A few days ago, the last (and largest) of the three suits was dismissed by the plaintiff. For anyone out there that's just been served, who may be terrified and afraid at what may be coming, we say to you this: turning your back on the monster doesn't make it disappear--it only makes it bigger. You -have- to fight--in fact, if you don't fight, you only embolden them. Whether you realize it or not, by coming to these forums you've put yourself in the company of defenders that are far more competent than your tormenters. It is truly a blessing to have this help, and after 6+ months at this, we have emerged harder, stronger, and victorious(!) with the guidance/assistance we've received here. Thank you so much, and we'll try to stop in occasionally to give back
  26. 5 points
    Please. It is never OK to call someone you don't know a "deadbeat".
  27. 5 points
    It is my prediction that the CFPB will be abolished or Cordray will be replaced by someone so conservative as to make the name of the organization a joke. And efforts to close the courthouse doors to consumers will be redoubled. First target appears to be two statutes near and dear to our hearts: statutory damages under the FDCPA and FCRA.
  28. 5 points
    I'm about the furthest thing from a Trump supporter, but I also have a sense that much of what HuffPo is about is going on the offensive against, and creating hysteria over, anything that comes from anyone on the right. They are the left wing version of the NRA.
  29. 5 points
    Well, it didn't take long after I got a lawyer involved. We settled without going to court. I got some, My son got some, and the lawyer got alot lol.
  30. 5 points
    You need to add the SCOTUS cases mentioned in this thread. Volt, AT&T, MOSES, CompuCredit etc... There can be no question that the NV rules are preempted by the FAA. Here's a NV case for you to cite as well. Bullet point 10, I would remove or change the wording. You're leaving too much wiggle room for the court to determine the difference between Private Arb & Annexed Arb. In my opinion, your bullet point should say something like:
  31. 5 points
    I just wanted to Sincerely Thank everyone on here that has so graciously offered advice and help. The hearing went well today and the judge dismissed without prejudice. I'm not sure what this means but it sounds better then where I sat yesterday. You guys are awesome!!👏 I have nothing but gratitude!
  32. 5 points
    Verdict is in:" DISMISSAL WITHOUT PREJUDICE FILED FOR THE ENTIRE ACTION AS TO ALL DEFENDANT(S) AND ALL CAUSES OF ACTION(S). " I showed up to court, and the clerk informed me of the news, I was ecstatic. I got to say a big thanks for all that helped me again with another case. @calawyer thank you for helping me such as I never received the dismissal in the first place. I hope all people that get sued in California by JDB are lucky enough to find this board, it's truly invaluable. How do I go to get my costs back? I didn't file for my costs in my last case.
  33. 4 points
    Hey, everyone! Gurstel and Calvary accepted my settlement offer. Looks like I was able to save some time. Thanks to everyone that commented and helped during this process. You all helped save my sanity. I truly appreciate it.
  34. 4 points
    Fair warning to all reading ... this is a horrible strategy. If you file a motion, fight the opposition and argue to the judge that your motion should be granted and the case moved to arbitration, and then the judge grants your motion, you are doing nothing but a disservice to yourself by waiting any length of time to file the JAMS/AAA case. Filing an arbitration case is the easiest process in this entire ordeal. it literally requires filling out a one-page document and then printing 2 copies of it along with 2 copies of the card agreement and putting them in the mail. DO NOT DELAY THIS PROCESS if you want to win.
  35. 4 points
    This is how CIC continues to be a vital community and viable resource for people in need of help.
  36. 4 points
    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.
  37. 4 points
    Jeez, leave all of this behind you now. Be happy that it was dismissed and get on with your life.
  38. 4 points
    Plaintiff has the right to dismiss without prejudice any time prior to commencement of trial (opening statements). Nothing you can do about. But I wouldn't worry too much about them coming after you again, more than likely they have learned their lesson - you know how to fight back. They can always sell the account to another entity, but I think it would still be unlikely that someone else tries to sue you on this one. Don't relax until it's official, once your court informs you that it's been dismissed, you're good; until then keep preparing and show up to court ready for trial. Make it sting and file for your costs. And congrats!!
  39. 4 points
    Honestly OP, you are a little out of your depth with this stuff here. You can do whatever you think you need to do , but it's not going to get you anywhere. you are better off focusing on the merits of your case. Every law firm that engages in the business of collecting debts on another parties behalf is required by Federal Law to put that they are debt collectors on their stationary. That disclaimer is not meant to convey that they are owners of the debt. I promise you, there is no fraud going on. But if you want to file whatever you want to file, when you come back with the results, we will not be petty and say we told you so.
  40. 4 points
    You'd win that bet! In fact, for a few days, I was afraid that we'd have to settle! But thanks to you and Anon Amos, we WON and now we have a check to prove it! Knowing that it was a net loss for them was icing on the cake.
  41. 4 points
    The problem here is that without anything in writing, unless you have a recording of the call, you cannot prove what the settlement was and if you gave them electronic access, there is no real recourse. All they have to say is you owed $xxx and we took $xxx. You are then in the position of trying to convince a judge that they should have taken $yyy rather than $xxx. Now if you send a check from your account and the use the routing number fraudulently, that is a different issue and you might have recourse. The routing number on the check gives them permission (without a judgement) to only obtain the amount on the check. Personally, I would never pay a JDB in a settlement amount less than the full amount without a written agreement and even then, I would use a cashiers check or money order, never a personal check. I would never allow a JDB access to my bank account. It is an adversarial relationship and you know they are lying if their tongue and mouth is moving and forming words in a known language.
  42. 4 points
    I beat Patenaude & Felix last month, who represented Capital One for an alleged credit card debt I owed (about $3,300). I am posting on here to help anyone who is in the same boat and discouraged about their situation. I want to say to those people, do not be discouraged. You can beat them! Do not be afraid to fight! I too, like the others here, have fought and won against an OC which is supposed to be much harder to win. These people file so many lawsuits and they just expect you not to fight in order to get a summary judgement. If you fight them, follow what you learn here and stay the course, you will win! They tried to scare me right before the trial. They claimed they would win, but they didn't. A few minutes after their claim, they dismissed without prejudice because they did not have a case. If you are in California read the threads and advice from @ASTMedic, @HomelessInCalifornia, @calawyer , @Seadragon, @sadinca and @Anon Amos There are so many others on here that give great advice also. I am attaching my redacted Trial Brief which I got from ASTMedic's thread which I changed only a few things to fit my situation. Fight on! Cap One Redacted Trial Brief .docx
  43. 4 points
    I'm sure the @CSexton311did his best. Since we were not in the courtroom, we don't know what was argued by either party, so it's not definite that he would have won on appeal. I commend you on the research and time you took to compose your suggested Answer and Plea to the Jurisdiction. In that Answer, you cite McCamant v. Batsell, a TX Supreme Court ruling that is over 125 years old. That ruling was handed down before credit cards were in existence. Courts must take changing times and technology into consideration. Based upon the county listed on the complaint served to the OP, an appeal would be with the 14th District Court of Appeals. That court, along with other TX appeals courts, has ruled that it is proper to bring a credit card debt under an account stated cause of action. We have previously addressed this issue and held that account stated is a proper cause of action for a credit card collection suit. Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 (Tex.App.-Houston [14th Dist.] 2010, no pet.) Because an agreement on which an account stated claim is based can be express or implied, a creditor need not produce a written contract to establish the agreement between the parties; an implied agreement can arise from the acts and conduct of the parties. Id. See McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex.App.-Waco 2009, no pet.). Also, as you know, TX courts allow 3rd parties to authenticate business records. We know that's a problem. Arbitration is not cited as the "only" solution. It's being suggested as a course of action that has resulted in dismissals for many due to the fact that JDBs will rarely arbitrate and some OCs will dismiss rather than arbitrate for smaller debts. At one time, I was not a proponent of arbitration but now I do support it under certain circumstances because it does appear that JDBs do not want to arbitrate debt collection lawsuits. A MTC seems to be a more successful and expeditious alternative in most courts.
  44. 4 points
    So we kept our eyes on the docket, and the dismissal never showed up...so we stayed up late last night (well, my wife mostly), preparing for battle. We printed out the tips that we got in this thread and some of the tips from "Sued by CACH, LLC" (skates97's thread). I went over everything with my wife, explaining why the evidence was pertinent and what to do in which situation. And we went down there with the dismissal notice in hand. We got down to the courthouse about 20 mins early, and saw that the case was still on the docket. The courtroom was pretty sparse, which I took as a good sign. One of the first things to happen was that they announced to another person that their case had been dismissed, and that they were free to go home--this wasn't the best feeling, since it gave the impression that our case had not been dismissed as we'd been told. We watched another case happen before ours--something entirely unrelated to civil litigation, but fascinating regardless. The judge assigned to our case seemed very professional, in my view--just trying to get to the facts and making it clear to-and-for the law, in the sense that he wanted verbal explanations and gave thorough explanations. This case drew from the remaining people left in the gallery, until one lawyer came in asking around for someone else. Our case was called, my wife went up along with this lawyer...and he kind of shrugged in a confused manner and said that his client had over-nighted a dismissal. The judge said he'd accept a verbal, and that was it It went almost exactly like Skates97's case did! So everything's done, except for getting the costs back. I'm going to be researching that over the next couple of days or so. My wife has already filled out two MC-010's, but I wanted to get back and do a little research before sending them out. Also, I wanted to see if we could fill out another for the first case that they'd dismissed, if it wasn't too late... I've already said it, but I'll say it again: none of this could have been done if it weren't for the kindness, generosity, and (in many cases) sacrifice put forth by all of -you-. Once I'd read some of CALawyer's work, I'd realized that we'd fallen in league with a master--although I do not know much about the law, the arguments we were setting forth made me feel like a damned genius: they were graceful, to-the-point, and utterly implacable. The practical advice from RyanEx and Anon Amos has really done a lot to steel our resolve, because you know when you get that kind of gritty advice that it comes from veterans. Seadragon's tips, and advice in other threads also formed a great foundation. Sadinca has been with us throughout, and always seemed to be there when I was most despondent--thank you so much Sadinca! I've borrowed and nipped from all over the place--ASTMedic's thread, skates97's thread, and many more. The instructional videos linked by Mr. Chowdury were fantastic, and gave us a great sense of purpose. Obviously, we've been up and down. But in the end, we felt like David beating Goliath three times at his own game. We prayed on this so many nights and days, when things were down...and we believe that we were answered in that we were led to this forum, and all of you. So again, thank you so -very- much for helping us with this, from the bottom (and top, and middle) of our hearts And to anyone out there that may feel lost, despondent, hopeless, or completely inundated with everything that's happening...don't lose hope, and don't give up! The worst thing you can do is nothing, and by simply filing a "general denial," you've already turned the tide in your favor P.S. We'll be sticking around, trying to give back where we can
  45. 4 points
    I don't think you'll get an exclusion of evidence based on how they (failed to) respond to the BOP. I believe you would have needed to make some Motions to Compel during discovery for that (not easy to do). Your best way to attack their evidence will be objections based on untimely CCP 96 responses and/or unsuccessful attempts to serve the CCP 98 witness. Case Y - What dates are you using to calculate that they were late responding to your CCP 96 request? The clock starts on the day that you served the request (placed it in the mail); 25 days (20 by statute plus 5 for mailing the request) for them to place their response in the mail, meaning a timely response could take 25+ days to arrive in your mailbox.
  46. 4 points
    Filed denial and POS today. Been researching my local court cases with Cavalry, looks very promising, 100's of cases in past 18months, lots of missing paper work and dismissal for improper service/lacking documentation. I'll post the exact verbage this week from the minutes, perhaps someone can interpret. Lots of default judgements and about 30%ish dismissal only couple went to trial. Also looked up the local attorney Winn sends on their behalf, passed the bar in 1990 so has experience. Saw one case dropped quick when attorney for the defendant requested a jury trial and it was granted. No worries, we got this, thanks again for all your help!!!!!
  47. 4 points
    That's hearsay or actually multiple layers of hearsay and inadmissible at trial when you learn how to properly object to it. You have to start learning the rules of evidence that pertain to this. There's absolutely no reason at this early stage to feel you may lose this case if you are willing to learn and fight it. A case management conference last about 5 minutes, you do not argue your case there. You say next to nothing and basically just let the court know what's happening with the case (like discovery is ongoing, you are going to fight it and go to trial, etc.) What you do now is keep pressure on them and learn how to beat them. Read ASTMedic's thread. Find the discovery request for production of documents he used. Add your case # etc to it and send it to them for Christmas. BTW, don't listen to any bleeding hearts or trolls. These are just bottom feeders who bought an alleged debt in hopes of profit. They don't deserve a penny and will have a very hard time winning this case if you fight it.
  48. 4 points
    This is one of AZ's leading cases on arbitration, having been cited 85 times since 2007. Note how the court quotes from ARS-12-1502.: https://scholar.google.com/scholar_case?case=5485495856055899638&q=ars-12-1502+shall+order+parties&hl=en&as_sdt=4,3 But, when a party "denies the existence of [an] agreement to arbitrate, the [superior] court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party." A.R.S. § 12-1502(A). I think I would include the case name, citation and the quote in your MTC. If you click on the link, all the info is there.
  49. 4 points
    I want to thank @texasrocker for all his help. Those of you in this forum would do good to listen to him. I was in court today and with the help I received from this forum my case was dismissed. Unfortunately it was without prejudice so they can file again, but I feel that they won't. PRA and their law firm RSEIH (I think I have those in the right order) will be looking for the low hanging fruit of easy cases and default judgements instead of trying to battle in court. Again, those of you that read this (especially in Texas) pay heed to what @texasrocker tells you. He helped me get my case dismissed.
  50. 4 points
    One more update. Sent off my Memorandum of Costs and received the check in the mail yesterday from them.