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Showing content with the highest reputation since 11/18/2018 in all areas

  1. 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!
  2. 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
  3. 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.
  4. 4 points
    I have had my run in with the same law firm, same debt company, same credit card, and same state. My advise to you is to read through my thread and see how much this community is absolutely amazing. See how a normal Joe shmo like myself, turned from a uninformed scared person, into a well informed individual. The process takes time, research, and patients but in the end is rewarding and self fulfilling. If you start reading through my thread you will see i made a lot of mistakes early on, luckily I had some guardian angels on my side such as @fisthardcheese@Brotherskeeper@nobk4me@BV80 just to name a few. This thread is packed full of great information to help you along your journey. I hope it finds you well in your research and aids you in successful battle!
  5. 3 points
    So a few years ago I got into some financial trouble. I found this site, and it helped me immensely. I won 3 court cases, I sued Gold's Gym for collection violations, and I have been cleaning up my credit. I was at an all time low of 430. I protested every negative on all 3 credit reports. some things were removed, some were not. Some I had to wait until they dropped off after 7 years. But, last week I decided to refinance my house. I thought my score was pretty good now, so thought I'd get a decent % rate. eh, todays market, it was 4.2, but still better than the 5.6 I've been stuck with for 10 years. My credit score came back at 840! Pretty much cart blanch if your trying to get credit. I do have a couple of credit cards, with like 15k limits, but I won't go down that road again. If I have a major purchase I won't use it unless I have a plan to pay it off in a month or 2. I carry a low balance on my main card so it reflects well with payments, etc without getting socked for huge interest. Just wanted to revisit, and let others know this site is a wealth of info if your willing to invest the time. Thanks to all those that contribute! Oh my new house payment is 350.00 less per month, and will be paid off 2 years earlier. So even though I didn't get the low rates of a few years ago, it was still worth it.
  6. 3 points
    I'm not advocating one position or another. I think both have merit. I just want to put out as much information as possible so that Shelly can make an informed decision about which path to take. One thing that is certain, the decision does not need to be made at this very moment.
  7. 3 points
    Alright! Who wants to hear about my day in court? DISMISSED WITHOUT PREJUDICE Ok, I realize there may be some pitfalls in that PRA could re-open my case. But, do they/would they do that? I ain't gloating. The lead up was stressful, I was flailing and there were some things I could've done better. See my original post. A recap of the past two weeks: My last hearing was to set a trial date of Feb 8. The judge handed us both an Advance Trial Review Order. ( Look it up for California to see samples of it.) I was confused by the document. It basically was an inventory of case evidence and witness. The contract attorney for the plaintiff filed it with nothing listed. (Suspicious: No evidence? No Witnesses?) I did the same. I was late to send out my Discovery/ Demand for Documents to the Plaintiff. This was a mistake. The deadline is tricky. I understood it to be 30 days before trial. But it closes 30 days before trial. I feel I still don't completely understand the deadline, but I now at least know to get it done early, at latest 65 days before trial. That being said- it would have been understandable and permissive for the Plaintiff to just ignore my discovery requests. However, they ended up replying the day before the trial with a point by point refusal of each of my discovery demands per my violation for CCP 2024.020(a) So, why even bother sending me that? Did they have to? Or, were they trying to psyche me out? Anyway... TRIAL DAY! I wake up early, keep a positive attitude, go the gym, "Mama Said Knock You Out" on repeat! Get to the court house early. Breathing deep. Courtroom doors open at 9:00 am sharp. Friday trial call. Everybody signing in. All kinds of people and civil matters stacking the day's schedule. Contract lawyer for the Plaintiff strides in, calls me out while he signs in and announces "I'm going to dismiss your case" . We wait for the judge to call us into the octagon to make it official. And that's it! 5 minutes. So, what happened here? Am I lucky? Did I simply answer and show up? Did I use the Magic Words? Well, like I said- no gloating here. I got TWO MORE of these things on deck.
  8. 3 points
    That's great that you are starting to kind of understand everything now. Its a journey, but its a journey only you can benefit from. Your hard work and understanding, will only make you a more versatile person. When you go for that first initial meeting with the lawyer you will not be jaded thinking you have to roll over just because you are in the court system. You are now armed with knowledge, Be vigilant in your study's, and double check everything. Like i stated before, you are representing yourself so everything you do reflects you. When this is all said and done you will be extremely proud of what you have accomplished. I promise you!
  9. 2 points
    Please see this thread from a poster in Ohio. I have included a step by step outline of what needs to be done, and when.
  10. 2 points
    This was such a great idea. Looking occupied likely made you seem much more prepared. Congratulations on your victory!
  11. 2 points
    @Vinsey I noticed you're being sued on a sworn account cause of action. Here's creditor lawyer's article on TN sworn account, followed by a blurb from a legal self-help booklet: SWORN ACCOUNTS UNDER TENNESSEE LAW: WHY, WHEN, AND HOW? "Sometimes, a creditor’s lawyer will file an action against a borrower as a “sworn account.” These are basically lawsuits on steroids, but they aren’t as common as you’d expect. This device is allowed by Tenn. Code Ann. § 24-5-107, titled “Sworn accounts; denials,” which states that an action that is filed “with the affidavit of the plaintiff or its agent to its correctness…is conclusive against the party sought to be charged, unless that party on oath denies the account…” There’s an exception under § 24-5-107(b), that allows a court to accept an oral denial of the sworn account. The reason behind sworn accounts is to make the debt collection process easier, especially on debts where there is no dispute. It shifts the burden of denial to the defending party. Some courts treat these like a “procedural trap;” faced with a properly authenticated and sworn account, the defendant who doesn’t present a proper sworn response will automatically lose. One Court has said: “[t]he statute is quite clear that in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.” But, when a sworn denial is filed, the burden shifts back to the plaintiff to support his claims with actual evidence at the trial, i.e. the sworn account becomes a moot point. So, when and why would you proceed on a sworn account? Primarily, I file them when I’m before courts that don’t have a “free continuance” Local Rule, like Davidson County. That way, if I show up and have my witness with me at court, I’ve got some proof of my claims with a sworn account. Some lawyers file them hoping to set the procedural trap, hoping the other side will neglect to file a “Sworn” Answer, but that seems sneaky (but, it’s supported by the caselaw). Other than the extra step involved (preparing and filing an Affidavit), there’s not any downside to proceeding with a Sworn Account." SWORN ACCOUNTS AND OTHER DEBTS "An account may involve a credit card debt or virtually any other type of debt. Legal proceedings typically involve “sworn accounts” where the creditor uses an affidavit to prove the debt and not testimony in person. Suits based on sworn accounts are governed by Tenn. Code Ann. § 24-5-107. See also Tenn. Code Ann. § 24-5-104. The only effective response to a sworn account is a sworn denial, that is, a written denial executed under oath and filed with the court. Any other response (an unsworn answer, even an appearance by the defendant without a written answer) must be ignored by the court and will result in automatic judgment for the plaintiff. Once a sworn response has been filed, or if no affidavit is filed by the creditor, the burden is upon the creditor to prove the debt, usually by testimony in person."
  12. 2 points
    @Vinsey I was able to find the 4/2016 Barclays agreement in the Archived Q1-2016 file. The affidavit claims "...there was due and payable from VINSEY S. ("Debtor and Co-Debtor") to the Account Seller the sum of $2,948.88 with the respect to account number ending in 7968 as of the date of 3/30/2016..." https://www.consumerfinance.gov/credit-cards/agreements/ Archived Q1-2016 agreements https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2016_Q1.zip Archived January 2016 agreements https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2015_Q4.zip
  13. 2 points
  14. 2 points
    For the same reasons that no politician was ever elected because they are soft on crime; no politician ever got elected because they were a champion for the consumer debtor. Those constituents just do not have powerful lobbies. Every once a while a local news station will run a story about how some poor consumer is getting wrongly worked over by a state toll company or a collector for a municipal debt; that gets that persons situation righted and a promise that such conduct will not happen in the future, but usually those are just illusory promises.
  15. 2 points
    Went to court on Monday and it was Dismissed Without Prejudice. So I assume it will be coming back around again sometime but glad it is over for now. I went to the courthouse and the Opposing Attorney, of course not the same lawyer on all the documents, arrived and tried to get me to settle. Slight discount at a lump sum or full amount over time. I told him no, we are going to trial and he left me along while we waited. I pretended to read my notes and wrote down a few things so he wouldn't try to talk to me again. I like to think I scared him by looking all prepared. LOL We went into the court room and he stated they were dismissing the case without prejudice and that was that. Thanks for all the help, there is a lot of really good information in this thread!
  16. 2 points
    Excellent. It sure is peculiar how the naysayers are as far away as they can get every time someone wins in court but when you say you want to fight a JDB in court all you hear is, "Those outdated tricks don't work anymore" "These days they demand all the documentation they need from the OC and all states have adapted to the 'adoptive records doctrine' "or "You can no longer win if arbitration isn't an option and everyone in the courtroom knows you owe the money so you should just work out a settlement."
  17. 2 points
    Very well said! I would only add to remember that this is a business deal. Yes, it is personal to you, but it is not personal to anyone else (not the court, the judge, the attorney or the clerks). Come at this as a business deal. When talking to the attorney in court, keep it calm and collected and professional. Let him know that you understand he is just doing a job for his client and that he isn't trying to personally stick it to you (or vice versa). Once you file your MTC, depending on your local court's rules, they MAY not be able to non-suit or drop the case without your agreement. But for sure once the MTC is granted, that will hold true. So, if you work this with the goal of just getting that MTC granted by the judge, you will do well. Also remember that once you file an MTC, everything about the account and alleged debt becomes completely irrelevant. You are flipping a switch that puts the debt conversation on hold and changes it to a question of whether arbitration is proper or not. The ONLY question that should be decided by the court after your MTC is filed is whether or not there is a valid arbitration agreement between the parties. If the court finds that there is, they have no choice but to order arbitration. Many times the attorney will attempt to cloud this issue by continuing to bring up the debt with your and with the court, but all you should do is object to that and gently steer the conversation back to arbitration.
  18. 2 points
    @fisthardcheese @Around The Fur Arkel Constructors v. Duplantier & Meric, 965 So. 2d 455 - La: Court of Appeals, 1st Circuit 2007 "Cases decided prior to the aforementioned amendment to LSA-C.C.P. art. 2083 consistently held that rulings denying a motion to compel arbitration were immediately appealable. In Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, our supreme court held that an order compellingarbitration was not appealable. However, the court specifically noted in that opinion that Section 16 of the Federal Arbitration Act directs that orders denying arbitration would be immediately appealable. The supreme court reiterated that holding in Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 5 n. 5 (La.6/29/05), 908 So.2d 1, 6 n. 5: "A judgment denying a request for arbitration has been held to be an appealable, interlocutory order." (Emphasis added.) See also Shroyer v. Foster, 01-0385, p. 3 n. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 86 n. 4, citing Collins, 99-1423 at p. 8, 752 So.2d at 830, and Stadtlander v. Ryan's Family Steakhouses, Inc.,34,384, pp. 2-3 (La.App. 2nd Cir.4/4/01), 794 So.2d 881, 884-885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790. These cases were based on the implicit reasoning that to deny an immediate appeal of a motion denying arbitration would cause irreparable harm to the party asserting its contractual right to arbitration. With the omission of this language 459*459 in the amended version of LSA-C.C.P. art.2083, an immediate appeal of an interlocutory ruling must be specifically provided by law. In the absence of legislation expressly authorizing an appeal of an interlocutory judgment, a party must now seek review under the appellate court's supervisory jurisdiction. LSA-C.C.P. art. 2083, Comments-2005 (a)(b)." In a decision rendered by this court after the effective date of the amendment to LSA-C.C.P. art.2083, we again reiterated and applied the holding in Aguillard, that a judgment denying a request for arbitration is an appealable, interlocutory order, without any mention of the amendment to LSA-C.C.P. art. 2083. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197, p. 4 n. 1 (La.App. 1st Cir.2/10/06), 928 So.2d 594, 596 n. 1. In our most recent decision concerning an appeal of the denial of a motion to compel arbitration, this court merely addressed the merits of the issues before it, without mentioning the interlocutory nature of the judgment before it, nor addressing the issue of appealability. Lafleur v. The Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La. App. 1st Cir.3/23/07), 960 So.2d 105. However, in Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025, p. 10 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674, we held that Act 205, which amended LSA-C.C.P. art. 2083, was procedural and should be applied retroactively. It appears clear that the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence. Aguillard v. Auction Management Corp., 908 So. 2d 1 - La: Supreme Court 2005 "Motion to Stay Pending Arbitration "According to [La.Rev.Stat. § 9:]4202, a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration." International River Center v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141. In this case, unquestionably a written arbitration agreement does exist, and because the issue in this case arises from and is related to the Auction Terms & Conditions and its breach, the issue is referable to arbitration. Moreover, the record establishes the defendants are not in default in proceeding with arbitration.[16] Therefore, we reverse the court of appeal and stay the present district court proceedings pending arbitration in accordance with Section 4202."
  19. 2 points
    @Vinsey You need to read both the Tennessee rules of civil procedure and the local court rules. The last link is to a court-approved sworn denial fill-in form. Please take your time to understand what you are required to do under the rules and the deadlines that govern your actions. If you plan to file a motion to compel arbitration, your rules may require you to state an agreement to arbitrate as an affirmative defense in your answer to the complaint. http://justiceforalltn.com/content/pro-se-guide https://www.tncourts.gov/court-rules/218 http://www.tncourts.gov/courts/court-rules2/local-rules-practice http://justiceforalltn.org/sites/default/files/FINAL - Sworn Denial_0.pdf
  20. 2 points
    From everything I've read, do NOT file with AAA until you are granted the MTC, otherwise it makes a mess of things.
  21. 2 points
    I agree that the one in the OP’s last post would have to be the complaint because it demands a judgment.
  22. 2 points
    Just use the Synchrony Care Care. Include an affidavit that says you believe this to be the agreement governing the account. If they want to fight that, then let them provide a different version - they will all have same arb clause. You need to get your MTC filed ASAP. Find you local statutes / rules of civil procedure to site the rule that says arbitration is preferred method of dispute resolution. Most state's model Federal guidelines. At that point you either win or appeal the judge's mistake.
  23. 2 points
    Trial in 2 weeks? If that's the case, you need to hustle. Fortunately, people have beat JDBs with less time on the clock. Sounds like you did not send them a CCP 96 Request for all evidence & witnesses they plan to introduce at trial, correct? Did they send you a CCP 98 Statement (Affidavit/Declaration in Lieu of Testimony)? I doubt they'll respond to/accept the offer you made. They want more than 10%. They always send a contract lawyer to make appearances for them; technically, because they hire them to make the appearance, they are their lawyer. What does the Advance Trial Review Order say?
  24. 2 points
    A toothless law, though. The IRS has really no interest (nor man-hours) to track down all of the JDBs who "forget" to send 1099s to consumers and enforce the measly $500 fine for it. You could TRY to arbitrate for those damages, but 1) the JDB will ignore it and force you to file a PTC in federal court to force them into the arbitration at the going $450 federal court filing fee (plus the time of typing up and filing the petition). and 2) as @BV80 pointed out, the IRS rules state that it is your responsibility to report the amount even if you don't get a 1099, so technically you would be culpable for your own damages, and while just forcing it to arbitration can get a settlement due to those arb fees involved, I doubt you would get a settlement amount worth all of the time and up front expense of federal court PTC and hearings to make it worth anything. In my particular case it was a 1099-MISC for a small payout to me from Midland. This was many years ago now, and because I was still learning, I was under the assumption that under $600 did not need to be reported as income and since I never got my 1099 I assumed this was correct. In my case, Midland sent the 1099 to the IRS for the full amount THEY paid, which included my attorney's fees and costs. While it was still a rather low amount, when I got the tax bill a few years later, I was able to amend my return to deduct the attorney fees and costs and only pay the small tax amount on the money I actually pocketed. Since that time, on two other tax years, I had settled account not send me a 1099, but I still self-reported that amount on my returns and marked them as "no 1099 was sent". This avoided a later hassle and bill. To me, this is another good reason to get a proper settlement contract that states you are not liable any further for this debt. Usually a normal settlement would state that neither party admits fault, but that this settlement constitutes an agreement to end the dispute in the interest of further time and expense. In other words, your $500 payment would be an agreement to end the dispute because otherwise the costs alone could be more, but does not mean you owe any debt. Of all the accounts or lawsuits I have settled in this manor, no 1099 was issued and I did not claim any income from debt forgiveness and it was never an issue. HOWEVER, if your total is $2000 and you pay $500 of it and then they issue a 1099-C on the remaining amount, claiming another $1500 on your tax return as income next year will likely have a very minor effect on your over all tax return. It is not a large amount in the scope of things, especially if you have other income and paid taxes through the year from a job.
  25. 2 points
    Discover is the original creditor. Defaulted debt is sold and often resold to debt buyers who may be disinterested in safeguarding their "reputations." You are voluntarily entering into a legally binding settlement agreement with "junk debt buyer" Cavalry that includes the negotiated rights and duties of each party. Your rights are best protected in clear writing within the "four corners" of this agreement.
  26. 2 points
    This is California specific and most people on this board already know that California is very consumer friendly compared to the rest of the nation so it is not surprising that something that would fly in California would not fly in other states.
  27. 1 point
    Alrighty- Next up for me is Cavalry SPV via Winn Law Group: Alleged amount $2000-ish • Case age 420 days • Summons answered back in Feb 2018. In January, this year, I received a canned and highly convoluted set: Request for Admissions, Form Interrogatories and Special Interrogatories. I found a very helpful thread up here from a year or two ago that used the EXACT same content. So, I borrowed from that thread and sent along my responses. My plan is next to send them my own Discovery/ Request for Documents. Stay tuned.
  28. 1 point
    This is what the Discover agreement has to say about arbitration fees: "Fees and Costs. If you wish to begin arbitration against us but you cannot afford to pay the organization’s or arbitrator’s costs, we will advance those costs if you ask us in writing." It doesn't say anything about if they file a claim against you, so in light of the above quote, I would assume that means they will automatically pay your fee. If not, I would ask them to in writing. I'm sure Discover has an internal policy that when they have sued you, they cannot talk to you. Your only point of contact is the lawyer. The only time talking to the lawyer is a mistake is if you have diarrhea of the mouth. As long as you can say "I'm not going to answer that question right now", there's no reason to not talk to the lawyer.
  29. 1 point
    Re: small claims court, I just found this document that says a commercial business cannot file more than 5 lawsuits per month statewide in order to use small claims court. I'm sure Cavalry has filed thousands of cases per month across the entire state, so this knocks over the small claims barrier. https://www.nycourts.gov/courthelp/pdfs/SmallClaimsHandbook.pdf Re: waiver, in addition to the case BV80 just cited, I also found this one: "The crucial question, of course, is what degree of participation by the defendant in the action will create a waiver of a right to stay the action. In the absence of unreasonable delay, so long as the defendant's actions are consistent with an assertion of the right to arbitrate, there is no waiver. However, where the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory. Thus, entering a stipulation to extend the time to answer is a purely defensive action and is not inconsistent with a later attempt to force arbitration. (Matter of Haupt v. Rose, 265 N.Y. 108.) In contrast, contesting the merits through the judicial process is an affirmative acceptance of the judicial forum and waives any right to a later stay of the action. (Gold Plastering Co. v. 200 East End Ave. Corp., 282 App. Div. 1073, affd. 307 N.Y. 668; Board of Educ. v. Mancuso Bros., 25 Misc 2d 122 [motion for summary judgment].)" De Sapio v. Kohlmeyer, 35 NY 2d 402 - NY: Court of Appeals 1974 https://scholar.google.com/scholar_case?case=7023923408743442767 The question the court would be faced with is whether or not you enjoyed advantages offered by the judicial forum or "contest[ed] the merits" up to this point. I would say no to the second question based on what you've told us thus far. The first question may be a little more dicey. Discovery may very well be considered an advantage you wouldn't get in arbitration. Remember what I said about it having been several years since anyone has been reliably able to challenge standing? 2014 is a long time ago. Also, the guy that runs Tough Nickel actively posts information he knows is false. Someone from this board has confronted him about it and he refuses to correct his info.
  30. 1 point
  31. 1 point
    Good morning, I am pretty much in the exact same scenario with Cavalry. I was served a Summoms in October. Responded with general denial. In my naivness, contacted them and requested bill of particulars verbally but they sent a "verification of debt" that included a general card agreement with no identifying info on it, a few statements and a bill of sales identifying an electronic account that is alleged to be mine. I recieved a request for admissions and production of documents request almost identical to yours MouseRabbit that POS was dated February 14th. I have until March 19th to respond to their requests. I used the BOP sadinca listed on the dec. 22nd and mailed it certified yesterday. I am of the belief they have until March 8th to put BOP request in the mail and based on all correspondence I recieved so far from them, it should get to me in 3 days tops. Just wanted to share and let you know im following along, rooting for you and fighting them too!
  32. 1 point
    Interesting that you assume I have never had to make that decision. I did when the recession hit. The major difference is I OWNED my part in it for not having enough savings set aside and living beyond my means. You lost my respect when you called AMEX scum for merely exercising their legal right. Nothing more than a business decision after all. You are not looking for a reasonable way out. You want to avoid paying and clean credit. Well you don't deserve it. Not that it really matters but you have ZERO knowledge of what AMEX does pay and write off. They are multi billion dollar company that is in no danger of going under from fiscal mismanagement. AMEX is not spending $100k on an appeal. That number is way over exaggerated from the now defunct DB boards. And why are they spending any money on an appeal? Oh that is right, a consumer who filed a frivolous one trying to get their own way. Makes sense. They are scum for trying to collect money they advanced to the consumer but the consumer is a saint for forcing them to spend unnecessary money for trying to collect. Got it. So is the cost of litigating and arbitrating collection cases. What is your point? Own how you got in this mess or you will be there again.
  33. 1 point
    I like AAA because the fee is a little lower and because the JAMS rules are ambiguous in terms of who pays what. AAA rules are crystal clear that the JDBs fees can never be reallocated back to the consumer.
  34. 1 point
    Congratulations!! File your motion with the court to "dismiss with prejudice" due to failure of the plaintiff to follow you into arbitration. Attach all your documentation from AAA showing that you initiated the arbitration and AAA closed the arbitration case due to plaintiff failing to participate. The court might schedule another hearing based on your motion. If they do, make sure to attend the hearing and take all your documentation.
  35. 1 point
    File with the court a motion to dismiss for lack of prosecution. PRA has no defense and I doubt they will respond.
  36. 1 point
    I would only be concerned about your appeal at this point. As a matter of law, your appeal should succeed and render all of the garbage they just threw at you moot. If the deadline for responding to these discovery requests gets close and you have not received a response to your appeal yet, then I would file a request for a 60 day extension to respond to discovery due to your pending MTC appeal. I would ask for 60 days, because I would expect the judge to cut in half whatever time you ask for.
  37. 1 point
    I would send a simple DV letter: "I hereby dispute this alleged debt. Please validate." Start researching legal strategies now. One: arbitration. Two: SOL, re a borrowing statute. I think there is a CA case Resurgence v. Chambers (I think that's the case??) that asserts that CA borrows other states' shorter SOLs. Is Barclay based in Delaware? If so, SOL there is 3 years.
  38. 1 point
    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. Plaintiff has a copy of the applicable agreement that governs the account at issue. That better?
  39. 1 point
    BBB shows the same company with both addresses and a few more as well.
  40. 1 point
    This has been an argument TNC drivers have made since day one. To date it has never been sustained. And Uber has become much more 'driver friendly' as a result of the complaints, by the way. I drive for Uber and a couple other TNCs and I personally don't agree with the complaint. Among other things, no one tells you where or when to work. It's *the* quintessential definition of contractor. In contrast, I also deliver for a Domino's on occasion. They do tell you when and where to work, and in that capacity, I'm an employee and not a contractor. As such, I can expect employee benefits if I were to work there more than 40 hours a week. My experience has been that the drivers that cry about Uber didn't realize all of the ramifications of being self employed when they started out.
  41. 1 point
    Harry, it appears they "shall pay any price, bear any burden, meet any hardship," to avoid class action lawsuits, precedential rulings, bad press and those pesky consent decrees--for now. From a 2017 LA Times article: Banks and credit card companies really hate class-ac tion lawsuits. Will Trump help to outlaw them? "There are a couple of reasons for this. One is that the arbitration record typically doesn't reveal who won the case or how much a customer may have won. The other is that arbitration, like litigation, is so burdensome that individuals seldom bother with it; the CFPB found only about 400 individual arbitrations per year from 2010 through 2012 filed by consumers against banks, credit card companies or lenders. But the consuming public did much better when it acted as a class. Over the same three-year period, the bureau (CFPB) examined 419 class-action lawsuits that resulted in settlements covering 160 million customers. The total settlements amounted to about $2.7 billion, mostly in cash. Obviously that doesn't amount to much per claimant — only $16 to $32 each on average, the bureau estimates. But what's more important is that the settlements were a bigger hit to the banking defendants and often includes agreements to change their behavior so the abuses that were the targets of the lawsuits wouldn't happen again. Those behavior changes, the bureau says could be at least as important for consumers as monetary payoffs, or more so, because they can reach more customers and often are permanent. So it's no wonder that the banking industry has moved heaven and earth to head off the rule, while consumer groups have moved to advance it. In all, a staggering 120,000 comments were received by the CFPB before the comment period on the proposed rule was closed last August." And... CFPB Arbitration Rule CRA Revocation "The arbitration agreements rule would have imposed two sets of limitations on the use of pre-dispute arbitration agreements by providers of certain consumer financial products and services. First, the arbitration agreements rule would have prohibited providers from using a pre-dispute arbitration agreement to block consumer class actions in court and would have required providers to include a provision reflecting this limitation in arbitration agreements they entered into. Second, the arbitration agreements rule would have required providers to redact and submit to the Bureau certain records relating to arbitral proceedings and relating to the use of pre-dispute arbitration agreements in court, and would have required the Bureau to publish these records on its Web site. While the arbitration agreements rule became effective on September 18, 2017, the arbitration agreements rule would have applied only to pre-dispute arbitration agreements entered into after March 19, 2018. The United States House of Representative passed House Joint Resolution 111 disapproving the arbitration agreements rule under the Congressional Review Act (5 U.S.C. 801 et seq.) on July 25, 2017. The United States Senate passed the joint resolution on October 24, 2017. President Donald J. Trump signed the joint resolution into law as Public Law 115-74 on November 1, 2017. Under the joint resolution and by operation of the Congressional Review Act, the arbitration agreements rule has no force or effect. Accordingly, the Bureau is hereby removing the final rule titled Arbitration Agreements from the CFR."
  42. 1 point
    @Around The Fur You may find some useful info on writs here: https://raymondpward.typepad.com/files/btg-2017-oct.-ward-materials.pdf
  43. 1 point
    Just got back from court. My fiancée had a bench trial scheduled for 3 PM today. Got to the courthouse, only to find out that the slime ball JDB attorney filed a motion to dismiss w/o prejudice earlier today. Obviously this was great (and very expected) news but Midland is nothing short of pathetic. Anyway, another win under my belt!! If I didn't have a full time job, I'd LOVE to help people defend themselves against these JDBs. To recap this case, we basically filed an answer to their petition and answered their discovery requests. I didn't even bother sending any discovery requests to them this time. I already know how they answer discovery, so it wasn't really worth it. That's it. After our initial appearance in court, this bench trial was scheduled. In my 2013 case, I had to appear 5 times before I got my dismissal. These jokers know they can't win against people that know what they're doing and can defend these cases!!
  44. 1 point
    @gumomistar According to the rule they claim the Court violated, it appears that the Court ordered "otherwise," since no agreement was made by the "parties and the Court" to hear the trial on the return date. You could argue that your motion to compel arb was a valid reason (see Rule 3-1.04 Motions) for the Court to push the date earlier, (technically you did not submit a "proper Notice" of the motion); supporting this is the fact the Court certainly was aware of and prepared to hear your motion at the hearing because the judge, "denied the Attorney's continuance request under the premise that a motion was present and that the Defendant had done all that was necessary before and during the trial..." Also, according to Rule 3-1.04, a motion scheduled for a hearing on a trial date means the parties must be prepared to proceed to trial immediately after the hearing of the motion. I realize plaintiff claims they didn't know anything about your motion or the moved trial date, but that's on them because you-- as a self-represented party no less--were present and prepared for the hearing/trial date. Rule 3-1.03 Contested Cases C. No trial will be heard on the return date, unless by agreement of the parties and the Court. Unless the Court orders otherwise, or upon proper Notice and Motion, or by agreement of the parties approved by the Court, no cause will be set for trial on any date other than the fourteenth day after the return date." "Rule 3-1.04 Motions Motions shall be noticed and heard in accordance with Chapter 2, Part 1.00. Any Motion shall be noticed for a hearing on a date prior to the trial date. If, with leave of Court, a Motion is scheduled for hearing on the trial date, the parties shall be prepared to proceed to trial immediately after hearing of said Motion."
  45. 1 point
    A carve out for collection activities arguably makes the arbitration agreement unilateral rather than bilateral. Types of claims can be carved out, but when a carve out excludes a claim type classification that could encompass some large percentage of the potential claims of just one party, the arbitration agreement is arguably not effectively reciprocally binding. These carve outs are currently mostly found in the arbitration agreements of the lowest ranks of subprime lenders. These agreements apparently must be passing the review process of AAA/JAMS.
  46. 1 point
    Ask her if she has the $3500 to allow you to settle with Midland or if she would rather let you spend a few days to save that $3500. I would use JAMS. AAA will reject a Midland case immediately, which sounds good, but it will likely require extra court hearings and a second filing with JAMS anyway. As close to the date of default as you can find. This is less important as it seems. As long as you have an agreement that is dated sometime during the time your account was open and in use, it won't much matter. The worst that can happen is the Plaintiff says you have the wrong agreement and you ask them to produce the correct one. Any Synchrony agreement they produce will have the same arbitration language, so you use their agreement and continue as planned. Additionally, it will be pretty difficult for them to argue against your card agreement when you have an affidavit along with it. https://www.synchronybankterms.com/ The card agreements listed here are the full agreements I think it is best to do so. I would add them prior to the SCOTUS case in the template. Think of it as increasing in size (or importance) local, state, federal. After the court grants your MTC. Take care of the court things first. Get the court to order arbitration, THEN start the arbitration. Think of it in terms of "what in the agreement gives you the ability to demand arbitration": 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. That would be all you need. I even would possibly only include #1 and stop after "relates to your account..." I don't feel a need to muddle things with the exclusions, which don't apply to your case anyway. But some people include them because otherwise it feels like #1 is incomplete.
  47. 1 point
    Did you get a judgement for the defendant (in other words, was the case tried on fact), did the plaintiff obtain a dismissal without prejudice, or was it something in between those 2 items? If you got a judgement for the defendant, that means the court considered all the facts and found in your favor and you can use that to file a challenge to the entry on your credit report. If the case was dismissed without prejudice by the plaintiff, then the entry will probably stay because the case was not tried based on the facts.
  48. 1 point
    You can try to call them and inform them that you are not living in the USA anymore. I would also send a letter if possible. They might sue you anyways. If they do, your parents might accept the service and/or they might try alternate service. You can then answer the case stating the court has lack of personal jurisdiction because you now reside abroad. Realize however that the SOL is tolled for however long you reside outside of the USA. That said, even with that, they might get a judgement anyways (or you could let them default). Even if that happens, most foreign countries do not honor USA civil judgements so they would not be able to collect unless you returned to the USA.
  49. 1 point
    @texasrocker,I truly appreciate your valuable help and insight, but I must respectfully disagree. To state that a JDB is not owed is wrong First, in most circumstances, JDBs are conidered to be debt collectors. If that were not the case, they would not be held liable under the FDCPA. Second, just because a debt has been purchased by a JDB does NOT mean the debt is not owed to that JDB. READ THE CARDMEMBER AGREEMENT. It will state that a debt can be assigned to another entity. In the event of a lawsuit, I absolutely agree that a JDB should prove ownership of the debt in question. However, to insinuate that a debt is not owed simply because it has been purchased by a debt buyer is dishonest. To claim that nothing is owed to a JDB discredits and shames those of us who have paid debt buyers. Most consumers know if the debts in question were incurred by them. They know whether or not they made charges to accounts that resulted in a balance. They know whether or not they defaulted on those accounts. I was sued by 2 debt buyers and paid nothing Since then, I have paid debt buyers However, those settlements were not for the full balances of the debts While the amounts paid resulted in income for the entities which were paid, they did not cover the full balances I owed . The settlements did not cover the losses claimed by the original creditors. That means there were still losses. ,
  50. 1 point
    Ha - you found a kindred spirit in rocker! (And if you are saying it was identity theft, why are you fighting it in court?)