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  1. 3 points
    Lack of evidence of a claim doesn't inherently make it frivolous. Frivolity means you have no basis at all for the claim. Your own testimony that you saw numbers in your phone, returned the call and discovered the called party was Unifund is evidence. It's not enough to prevail on the claim if Unifund denies making the calls, but it absolutely pushes you past the frivolous threshold. This is why we keep telling you to quit worrying about "frivolous". You're not in that camp. The lawyer's ignorance over the fees is IMO a much bigger concern with potentially catastrophic results.
  2. 3 points
    After following much advice and reading many post over and over on this forum , I have had my day in court and my MTC arbitration and stay the proceedings was granted. In Louisiana you must file your answer , MTC and a memorandum in support of your motion, a little different than the MTC examples posted here. You must also state if a court date has been set, if not you must request a court date and include a order sheet. When I filed my MTC the judge ordered PRA/Rausch Sturm to show cause as to why arbitration should not be granted. I followed all the court rules and advise from this fourm. The Rausch Sturm attorney was served as required by my state. They did not object or show up to court this morning. The judge granted my order and chucked/smiled while signing it. He said he was impressed with my ability as a Pro Se. I thank everyone for their post about arbitration, without that I would have been lost.
  3. 2 points
    Things I would ABSOLTELY include with my reply: 1. I would state that I DO NOT object to a 60 day stay. 2. I do not object to filling the Demand for arbitration, and in fact, already have the paperwork ready to file immediately upon granting of Defendan't Motion to Compel. I would state that I am only waiting for the MTC to be granted, as it would be improper and against common sense to file an action in arbitration when the same is part of an active case before This Court. 3. I would submit a copy of a JAMS demand. --- JAMS --- since they are so sly as to mention all of the AAA rules in their response (I am assuming some attorney breifly skimmed the AAA rules only at some point to come up with their silly response). I would make my JAMS demand an exhibit in support of point number 2 above. 4. I would get as much case law as I could on MTCs granted after the start of a lawsuit to show that it is, in fact, commonplace to file MTC when a lawsuit is filed which contains an underlying arbitration clause. And also that there is NO case law stating that arbitration must be filed first. 5. USE JAMS. USE JAMS. USE JAMS.
  4. 2 points
    I see two options here (after skimming their response): 1. reply citing Capital One v. Rotman (https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf) The responsibility for initiating arb is on the plaintiff, not the defendant. 2. They have agreed to a 60 day stay. So you promptly initiate arb and pay the fee. The court should stay the case pending arb after that. Case should be over when they get the big arb bill.
  5. 2 points
    Notice where they say "To be clear, Discover does not oppose..." Discover? They copy/pasted this from another case!!!!
  6. 2 points
    1692c (c) Ceasing communication If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except -- (1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. If such notice from the consumer is made by mail, notification shall be complete upon receipt. Did you send a C&D and they continued to call you? That would be an FDCPA violation, for the 9000 time. You already asserted "FDCPA violation" in your demand, so your brief should include this part of the FDCPA as what they violated. In addition I would motion to additional claims like I stated above. You MUST READ these statues and corresponding case laws. The TCPA is triggered when you said stop calling and they called your CELL PHONE. A statutory $500 PER CALL is allowed to be awarded for those violations.
  7. 2 points
    If Unifund and Pilot are affiliated with each other, you have to consider the possibility that Pilot didn’t sell the account to Unifund. It may have simply assigned or transferred the account to the JDB.
  8. 2 points
    Small claims in Wisconsin can be very different from county to county and even case to case within the county. In most situations, the magistrate or some other facilitator wants to get the case off the docket NOW. They have a rather heavy load. Sending the case off to arbitration gets the case off their load. I would suggest going into the hearing with a MTC in hand, and of course a copy for the opposing counsel. If possible, file this at least a few days before the hearing, and send a copy to their attorney CMRRR, so they can't claim they didn't get it. Trust me, if you do NOT send it Certified Mail Return Receipt Requested, many law firms will just claim they never got it, and that puts a burden on you. If you go into the hearing with the MTC, better yet if you have sent it in advance, then all the magistrate has to do is rule on your MTC on the spot. If you have written out a good one, then he won't listen to their complaints. Unless the magistrate just feels like ignoring the law. If that happens, you can appeal to Circuit Court. The advice of @firsthardcheese is not bad advice. It's just that if you have an MTC ready for action before you are even served, you can get this case over with at the initial hearing date. EDIT TO ADD: That, of course, assumes you can get an MTC ready in time. If you can't, ask the magistrate at the hearing for some time to prepare one.
  9. 1 point
    You guys taught me that!😂😂
  10. 1 point
    I don't think you need to send a separate letter to the attorney, as the MTC should cover that. But you might double-check the arb clause to see if there are any special steps you need to take. I would hold off on asking the plaintiff to pay until the MTC arb is granted.
  11. 1 point
    Thanks for the shout-out on my case, Goody! I'll have to post an update on my thread soon. I haven't heard anything from the JDB's attorney for about a year. (I've actually checked the obituaries a few times). JAMS closed the case for non-payment months and months ago. The civil case remains stayed with no activity from the court since they granted my MTC in October 2017. I've learned to have the patience of a saint.
  12. 1 point
    Great advice! (Perhaps judicial notice of MikeB's own granted MTC in his previous case in the same court?) Let's see what we can find
  13. 1 point
    Oops, right. We did. I've got to reread that thread. Thank you. You did an awesome job yourself!
  14. 1 point
    It is not necessary at this point to file anything with the court. Just deal with sending copies to Midland only and retain proof that you did so.
  15. 1 point
  16. 1 point
    Yes ma'am, My court does allow it. You and I created the last reply brief together. ( you're pretty awesome btw!)
  17. 1 point
    I normally advise using AAA for these cases, but based off this statement from the agreement, I think I'd use JAMS instead. The reason is JAMS has "consumer minimum standards" which dictates that the consumer in an arbitration action only has to pay a $250 filing fee, so the "up to $1,000" language from the agreement is moot. There is some debate over what can happen with fees at the conclusion of the case, but if you read that link I posted earlier, you'll see this case will never make it to the "end".
  18. 1 point
    Do you have the original loan contract? I believe Prosper has pretty decent arbitration clause. If that's the case, best to just lay low and wait to get sued, then hit them with a motion to compel private arbitration. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  19. 1 point
  20. 1 point
    Are you actually in small claims court? The case file should clearly indicate that. Note that in some states, JDBs can't use small claims court. If in doubt, call the court clerk and ask. Don't be confused with jurisdictional (money) limits. It's not in small claims court unless your case specifically says it is.
  21. 1 point
    Note what fist has said here. Keep the quote from the arb clause short and sweet. Not need to add confusion with other info.
  22. 1 point
    I also misunderstood @Harry Seaward's point, but he is exactly right. The goal is to get them to lose by folding. rather than lose by winning. They will lose, either way, with the bill, but if they follow through, they could win the case. Not sure it makes a difference in this case, as it seems limited to the alleged FDCPA violations - nothing else. In the 22K case, if that gets to arbitration, you don't want her going all the way to final judgement. But to Harry's point - it seems important to clarify, even if that means another call, that Unifund is not getting their money back - lawyer needs to understand that in no uncertain terms.
  23. 1 point
    Is this something that should be brought up now, perhaps for it's own call/hearing - something to get "on the record," that this is a Consumer Arbitration, with no further financial exposure to said Consumer? Just to avoid the Discover fiasco? Seems highly unlikely. Isn't this akin to taking Best Buy to arbitration over violations to a service agreement for a TV and having Best Buy try to use that proceeding to go after late payments on a toaster oven?
  24. 1 point
  25. 1 point
    @williams4 What concerns me most is mounting a strong argument against the joining of the $22K as a counterclaim. You don't want her "ineptitude" to result in her getting a $25K award in a rushed process where comingled evidence may create a presumption. If you research exemplars of attorney-prepared complaints for the specific FDCPA violations you're claiming, coupled with the evidence you've got so far as Fist and Harry advised, you'll likely have a "plausible" claim, rather than an prevailing one. FDCPA claims require carefully prepared allegations. (I am not a lawyer.) The dispute over Unifund's legal ownership of the subject account is not frivilous.
  26. 1 point
    Submit the proof you have and stop worrying about it. YOU NEED TO SUBMIT THIS ON TIME AND SEE WHAT THE OTHER SIDE REPLIES WITH BEFORE YOU KNOW ANYTHING ELSE. When consumers show up to court very unaware of procedures and laws, do these attorneys cut them any slack and do judges allow that to be a defense? Seems like the same situation to me.
  27. 1 point
    There is no such thing as a motion for discovery. Do you mean a motion asking the JP court's approval to begin discovery? You need to choose between discovery or arbitration, you cannot do both.
  28. 1 point
    This. This is why OP's objection and response to their brief will be a very key moment.
  29. 1 point
    This only works if they know they are footing the bill. Everything they have demonstrated to this point makes it clear as a bell they think OP will pick up the tab.
  30. 1 point
    What did they fail to do according (b) Disputed debts?
  31. 1 point
    Sorry, I wasn't clear, I suspect that they have a system that manages cases by court case number. That would explain why, when she looks at the "case," all she sees is the 22K Court Case. She has no way of looking at 3K case, except via email and her paper files. @fisthardcheese and @Harry Seaward are right - she thinks all of this is somehow part of the court case - like "AAA" is just the court's internal mediation service. Once she realizes what happened, she's really gonna blow her stack!
  32. 1 point
    Yes, your Demand IS your current claim. Yes, you should email the arbitrator with any questions and include Unifund Do not be afraid to ask for more time in order to file your new claims. I.E., when you email the arb and state that you have newly discovered claims relating to this same account and would like to add them to your brief, ask for an additional 7 - 10 days (as needed). Additionally, I would wait a few days - perhaps immediately after filing your brief with your claims, and email the Unifund attorney ONLY and offer them a mutual release settlement offer on this case (the $3k account).
  33. 1 point
    Basically they have a judgement that wasn't satisfied, so they are forcing you into court to find out what you have they can take to satisfy the judgement. They already have it. If you have lived in another state, you can look into how long a creditor has to collect on a judgement, but usually they get 10-20 years in most states. Your best option would be to make out a settlement agreement with them. They have the judgement- so they may not be open to negotiations, but you might be able to work out a payment arrangement that fits you better than if they just garnish your wages, or get a lein on property, etc. It grows when you don't pay because they get interest on the amount-- x that by 5 years and it can really add up.
  34. 1 point
  35. 1 point
    This Indiana Appeals Court ruling reversing a judgment for Unifund on a Citi account addresses these problems: https://www.theindianalawyer.com/articles/42570-coa-overturns-judgment-in-favor-of-credit-card-debt-collector https://www.in.gov/judiciary/opinions/pdf/01201701par.pdf
  36. 1 point
    I disagree. She DID counterclaim for $22k. Arbitration is informal and it does not need to be in a perfect format stating "counterclaim" at the top. However, her claim of $22k is part of a court ordered pending AAA case, which is NOT this case. That is the objection and argument I would make. The $22k counterclaim should be removed from this case as it is part of a completely different case. Then sit back and wish you could see her face when she realizes she just sunk $5500 into a case that is only your FDCPA case against them on another account and not the $22k she was hired to collect on.
  37. 1 point
    Send them a letter stating that this is not a threat to use JAMS arbitration and that no arbitration has been filed yet, but that you absolutely dispute their alleged debt and refuse to pay it.
  38. 1 point
    Send them a pre-arbitration letter.
  39. 1 point
    If you send objections and unifund doesn't address it, they effectively accept your objections.
  40. 1 point
    @williams4 I think you'll find this Vermont ruling interesting. The flow between Citi and Pilot and Unifund includes limited assignment, and not just sales. UNIFUND CCR PARTNERS V. ZIMMER, 2016 VT 33 (MARCH 11, 2016)
  41. 1 point
    It's a scare tactic. They are just saying the rules permit them to ask the court for sanctions. They can try, I guess, but you can't be forced to bring what you don't have.
  42. 1 point
    I think you're good. Let's see what @fisthardcheese has to say.
  43. 1 point
    Personally, I think it’s a good thing that JDBs can buy debts. The reason is that the OC can sue you, or a JDB can sue you. You have a much better chance of winning if you’re sued by a JDB. In addition, JDBs are bound by the FDCPA whereas OCs are not.
  44. 1 point
    So I walked back in and picked up a copy of the dismissal for peace of mind and in case someone on here thinks I need to do something else other than count my blessings.
  45. 1 point
    I had a partial win. They didn't show up for court ordered judicial arbitration in California. I in turn filed a motion for sanctions. After I filed the motion for sanctions they dismissed the case without prejudice and the court still heard the motion and I won a couple hundred dollars. LVNV Sanction Motion .pdf
  46. 1 point
    They didn't show up and I won my motion for sanctions against them. It's only $272 but I won, nonetheless. Fight back, folks! LVNV Sanction Motion .pdf
  47. 1 point
    What state are you in? Each state differs in many ways as far as civil collection lawsuits are concerned. It is not so much the presentation of documents as it is the requests for admissions and interrogatories that they don't want to answer. In Texas there are a couple of precedents regarding the authentication and reliability of the OC's business records that JDB's will inevitably try to spring thinking they have a slam-dunk. If you counter them early in discovery then their affidavit signed by their own employee is null and void. Without the affidavit the OC's records are inadmissible as evidence. I will never recommend anyone in Texas to settle with a JDB unless maybe if it is in a JP court with the judge refusing to allow discovery and then only if the defendant is unable or unwilling to hire an attorney for an appeal.
  48. 1 point
    1. File the MTC Arb with the court, with copy to the plaintiff's attorney, NOW. 2. Answer their discovery with this: OBJECTION. Arbitration has been elected. The scope of discovery is to be determined by the arbitration forum.
  49. 1 point
    For your answer use the same format as the Plaintiff's Original Petition that you were served with the court and case information on top of the page. DEFENDANT'S ORIGINAL ANSWER Comes now, <your name>, the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following: I. GENERAL DENIAL Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence. II. PRAYER Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that he (or she) is justly entitled to. (Your name, address and phone number) File it with the court immediately and send a copy to the attorney's office that filed the lawsuit. Post their discovery requests and I will provide you with answers.
  50. 1 point
    If the plaintiff has sent you discovery, you need to answer it, but in a particular way so as not to waive your arbitration rights. You need to OBJECT to them all, citing that arbitration has been elected, and the scope of discovery is to be determined by an arbitration forum.