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  1. 2 points
    This depends on the state. In Wisconsin, the plaintiff must provide an accounting from zero balance to the current balance, certified by someone with knowledge of the account, if requested by the defendant. That means whatever the judges say it means. I had a very pro-consumer judge throw out the affidavit from Crap1 because it was signed by a “legal support specialist “, and the judge ruled that such a person did not have first hand knowledge of my account. Crap1 abandoned that case. No NDA so I can talk about that case. Later, some bigger judges ruled that the accounting requirements only applied to OCs and not to JDBs. So, amazing but true, there were suddenly a lot more OCs selling accounts to JDBs in Wisconsin. Would a strategy of demanding accounting to zero balance work in California? I don’t have an answer to that. It would take some homework on the part of the defendant
  2. 2 points
    Law firms don’t usually purchase debts. They strictly represent clients. If Cap1 is the plaintiff, then Cap1 is suing.
  3. 2 points
    I was asked about my postings in a deposition once. I used a technique that had been recommended. For that particular case, I did not post very many things. In those days I usually posted on the "other" forum. But since I was facing a depo, I created a new user name, and posted once about that case on this forum. In the depo I was asked if I had posted anything online about the case. I replied that I had posted on CIC. They asked, in a rather derogatory manner, what the purpose of CIC was. I said it was a credit repair web site. In short, everything I said in the depo was true. Some other techniques: It is often a good idea to be a little vague about your case -- don't give up any personal information. That makes it more difficult for them to figure out who you are. There have been a few times when I was able to figure out who the poster was rather quickly. And if I can do it, you'd better believe they could do it. For example, there was one time when a poster in my county posted enough information that within a few minutes, combined with online court records, I had her name, her address, her date of birth, and even the VIN for her car. I also figured out that she had missed an important hearing that morning, and I alerted her. She wound up with a default judgment. Another poster gave her some advice on how to get the default judgment vacated. She eventually won that case. Another example. There was a rather notorious poster in my state who was absolutely hated by some of the law firms. His user name on CIC was the name of a small company he owned. With that information, I was able to figure out who he was in a few minutes, and I even found a magazine article that had been written about him when he was a teenager. He was a small level elected official, as well (he has a higher office now). It turns out one law firm was checking posts on CIC, and noticed a pattern of posts which corresponded to events in their case. As in, someone would make a filing, and he would post about that filing on CIC. The attorney spent thousands, perhaps tens of thousands, searching CIC for posts regarding the case. At the depo they asked if he had made the posts. He said he had. It did not affect his case any. My biggest mistake was I was so scared of the law firms figuring out what I was posting that I was often reluctant to ask advice when I needed to. That cost me big time in a case once. So please don't make that mistake. You are allowed to ask questions, and to get advice and information. I was too scared. Not all law firms will look. Not all firms that look will find you. If they do find you, it is not necessarily something bad for you. Just don't be stupid in what you post. There was a rather famous example in Debtorboards in which a poster used the forum to taunt the opposing counsel continuously during the case. The opposing attorney asked Judge Susan Webber Wright to put a gag order on the poster. The judge refused on First Amendment grounds. However, at the end the judge imposed over $60,000 in sanctions. This was one of the last cases for this famous judge. The moral -- don't be afraid to post, but try to keep as many detail as vague as possible. For example, remove your name and the exact amount from any postings. And don't post anything you wouldn't want a judge to read. Asking for advice is OK. Saying "I'm going to make this lawyer pay" or "this lawyer has a nice rack" are NOT things to ever post.
  4. 2 points
    Capital One removed arbitration from its agreements in 2010.
  5. 1 point
    Yes, your motion to compel arbitration is a genuine issue of material fact. Granting summary judgment is an adjudication on the merits of the case. What you’re not understanding is that the court must decide your motion before it can decide on the MSJ. Check you rules to determine when motions are to be heard. This is from the Federal Arbitration Act. If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." 9 U.S.C. § 3. From the U.S. Supreme Court. “The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement.” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-27, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). The judge must stay the proceedings. He does not have the right to adjudicate the plaintiff’s claims. If he were to grant the MSJ, he would be in conflict with the FAA and the Supreme Court That is a genuine issue that prevents him from granting summary judgment. Are they claiming you waived the right to arbitrate? If so, the IN Court of Appeals has ruled that the issue of waiver is to be determined by the arbitrator. I’ll have to get back to you with case law on that.
  6. 1 point
  7. 1 point
    I believe Yolo is simply looking to figure out what would work best for their trial brief, not what the winning argument will be in court. Serving/filing a trial brief & written objection are part of the strategy in CA; when served ahead of time, I've noticed plaintiffs are more likely to dismiss before the trial date, which is of course preferable to dragging things out until the morning of trial/showing up to the courthouse, etc. Not a bad idea to make the brief as solid as possible.
  8. 1 point
    Yeah, the card agreement is the first place they look. If there's "we won't seek reimbursement" language, that's the end of the discussion. In Tom's case, the Discover card agreement left the door open.
  9. 1 point
  10. 1 point
    In granting my motion for summary judgment today, the judge included several references to my postings on this site. "In April 2015, xxxx posted on www.creditinfocenter.com that he had received a letter from Asset Acceptance with this language and declared “Happy Statute of limitations birthday to me.”" This site is cited a couple of other times in the memorandum order. I have attached the ruling if you want to be geeked out with 26 pages of legalese. Just want to make it abundantly clear for everyone that posts here to realize: 1. Your online activity can be/is tracked and will be used by an opponent to discredit anything you say, or in my case allege that I was too smart to be tricked or that I essentially acted in bad faith. 2. If you are ever deposed and you are asked if you've ever posted online, be honest. They (the opposing side) already know the answer, and likely have a folder full of your posts that they will want your thoughts on in a few moments. 3. Remember why you joined this site: to get help in dealing with debt collectors or collection suits. 10+ years ago, my family was in the darkest corner in the deepest cellar of our lives. I never wanted to join a site like this; I never wanted to struggle each and every day for years. We barely hung on, but we did. When the collection suits came, I didn't know what to do or where to turn, but what I DID know is that inaction would be the most expensive choice I could ever make. I'm glad that I joined and was able to prevail in the two collection suits filed against my wife and I and that others decided we weren't worth the time or effort and decided to more or less leave us alone. I am more proud that I was able to help many other people throughout the State and save their families many of thousands of dollars and give them confidence and a bit of relief. I have always fought for my family and I always will. I hope you do too. Stay safe, stay well ~ KW Memorandum Opinion & Order of 3-26-20_Court-Orders(1).PDF
  11. 1 point
    Not looking to pat myself on the back (okay maybe a little), but we got another win here. After Plaintiff's attorney received the motion, the OP received a voluntary discontinuance of the lawsuit in the mail.
  12. 1 point
    Good for you. At this point your goals are: 1. Be healthy. The case may be delayed for a few months. That is a mere inconvenience. 2. Do what needs to be done. 3. Don’t do what shouldn’t be done. In a recent thread I mentioned a notorious case of a guy who blew a slam dunk case and wound up with over $60,000 in sanctions against him due to using his postings to harass the opposing counsel. Stuff like using locker room language to describe a female attorney. Not smart. Keep the updates short and neutral. “Filed the case today” or whatever. Not a word about your feelings. The less said the better. In the end, it is not uncommon for people to simply mention that a case has been settled, and/or they will not discuss the case anymore. We all know that means a non-disclosure agreement. I have done that a few times myself. Never post anything you wouldn’t want their opposing counsel and the judge to read If you have already posted anything in that category, edit your post to remove any improper comments And, right before you sign a settlement with an NDA, just post something to the effect that you will no longer make any posts on the case. We can read between the lines and will be happy for you.
  13. 1 point
    Look up your county's court website, civil division.
  14. 1 point
    Got a call at 8:09 this morning telling the judge is postponing all hearings until at least June 1st due to Covid. About time! He has been holding court daily!
  15. 1 point
  16. 1 point
    I wouldn't listen to that. BK is a pretty extreme option when you live in a state that has great laws for a consumer in this type of case. CA residents have a great track record against these lawsuits. They'll most likely file suit, keep an eye on your civil court's website. In the meantime you can determine if arbitration is an option - if it is, great, because that seems to be the quickest way to deal with it. If not, that's fine too - the CA Civil Code stills favors you, but the trial route takes longer/is more involved.
  17. 1 point
    One of the issues of material fact is that you filed a timely motion to compel arbitration pursuant to the terms of the credit card agreement. Point out that, in their motion, Unifund “does not dispute that Defendant may elect arbitration”. Therefore, it’s only objection to your motion to compel is based upon its mistaken belief that you have not complied with AAA’s rules. See what your court requires for setting a hearing from your motion. It should be heard before Unifund’s motion.
  18. 1 point
    You did attach the agreement to your MTC? If so, I would throw the language in the agreement along with AAA’s rules back on their face. The following is stated in the credit card agreement: 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT. AAA’s Rules R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee Neither the arbitration provision in the credit card agreement or the rules of the American Arbitration Association (AAA) require that a case be filed with AAA case filing services before a filing a motion to compel arbitration. In fact, it is stated in the Barclays credit card agreement that “You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court. You or we may make a motion or request in court to compel private arbitration of any claim brought as part of any lawsuit.” As shown by the arbitration provision, arbitration may be pursued through a Motion to Compel in court. It is not stated a case must first be filed with AAA. The following is Rule R-2(a)(3) of the AAA. R-2 . Starting Arbitration under an Arbitration Agreement in a Contract (a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner: (3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following: • A copy of the court order • A copy of the arbitration agreement contained in the contract and/or agreement and/or purchase document • The proper filing fee The rule specifies that arbitration may be started “pursuant to a court order.” As with the arbitration provision in the credit card agreement, there is no mention of filing a case with AAA before a court order can be issued. Therefore, Defendant has complied with both AAA’s rule and the terms of the arbitration provision in the credit card agreement. The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Plaintiff has provided no evidence that AAA’s rules require a case to be filed with the arbitration forum prior to filing motion to compel arbitration with the court or before a court may rule on the motion. Wherefore, Defendant respectfully requests the Honorable Court grant Defendant’s Motion to Compel Arbitration and deny Plaintiff’s Motion for Judgment on the Pleadings or, in the alternative, Summary Judgment.
  19. 1 point
    No, it's a boilerplate template a busy law office uses for every single case. You are reading too much into it. The only things that matter here is a pending MSJ that needs to be properly responded to immediately, and your pending MTC which should be taking precedence and mentioned in your Opposition to MSJ as THE underlying reason MSJ should be denied and the main material issue for the court to handle. Stop focusing on all of the tiny insignificant side issues before you lose the MSJ just like they have designed.
  20. 1 point
    This needs to be the foundation of your appeal. The In statute mandates an automatic stay of proceedings the second a MTC is filed. The IN statute prohibits the court from granting an MSJ until it first rules on (denies) the MTC. I found this case that talks about the applicability of 34-57-2-3(d), even when it's not cited in the MTC: "Although not mentioned by the parties, Ind.Code § 34-57-2-3(d) and (f) are relevant to this issue" Harlow v. Parkevich, 868 NE 2d 822, 830 - Ind: Court of Appeals 2007 https://scholar.google.com/scholar_case?case=12627190844688510209
  21. 1 point
    Would that be something I would even need to argue considering there was no 'stay of the proceedings'? In order for there to be a 'stay in the proceedings' the judge would have to order it correct? I feel like I would mostly be arguing that since I elected to arbitrate by filing my MTC, and with supporting law and case law, it would take the case out of the jurisdiction of the court. But even with all of that, I still have not been able to find anything in regards to a judge completely ignoring a motion and continuing with the case. I cannot find if I was in the wrong but not invoking the lazy judge rule, or if the judge was in the wrong because technically there should have been a stay in the proceedings as soon as I filed my MTC.
  22. 1 point
    Yes. Most jurisdictions have a statute that says court proceedings must be stayed pending the ruling on a MTC. This appears to be the one that applies to your situation: IC 34-57-2-3 (d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application for an order for arbitration has been made under this section (or IC 34-4-2-3 before its repeal), or, if the issue is severable, the stay may be with respect to the issue only. When the application is made in such an action or proceeding, the order for arbitration must include such a stay.
  23. 1 point
    In your response to summary judgement, I would point out that a hearing was held regarding Defendant's Motion to Compel Arbitration in which the Plaintiff failed to show up for causing this Court to reschedule said hearing and that if Plaintiff had no objection to arbitration, they could have responded to the AAA, the Defendant or This Court, but they failed to do so. I would point out that the arbitration case can be reopened at any time and it was only closed due to the Plaintiff failing to show up for a scheduled hearing and causing additional delay on this matter. I would point out that now that Plaintiff has made it clear that they do not object to arbitration, that we need not use up the Court's time and cancel the upcoming hearing and ask that The Court grant Defendant's MTC and Deny Plaintiff's Summary Judgement as irrelevant due to the subject being a matter for arbitration only. Who cares. He probably gets more frustrated at having to reschedule hearings because someone is too timid to assert their rights. This is not the judge's case to defend. YOU must do the work. This judge did everything he could possibly do to get you to ask for a dismissal or for a directed verdict and you were worried about hurting his feelings? This is his job.
  24. 1 point
    Now Unifund has filed a Summery Judgement, stating that AAA closed its case due to lack of payment. I have not payed the filing fee because I was waiting for Motion to Compel Arbitration to be granted first. I am writing up my opposition for summary judgement right now. The Motion to Compel Arbitration hearing is January 28, since they did not show up to the one in November. In the Summary Judgement, Unifund states "Plaintiff did not object to the Defendant’s demand for arbitration." So after I submit my opposition for Summery Judgement, would it be wise to submit a Motion to Dismiss since in the Summary Judgement they stated that Plaintiff did not object to demand for arbitration?