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Everything posted by shellieh98

  1. The advantage of Arbitration is they won't go. Doesn't matter if it is JAMS (although that would cost them more) or AAA. Calvary will not go. But you would need to make sure you follow though and open a case, so they can't come back on you and say Judge, please reinstate this case, defendant never filed with arbitration, and wasn't serious" Jams will cost a max of 250.00, AAA will cost 200.00. You must use the forum stated in the contract. (I see you posted it, but I did not read it) Here is a sample motion, you can change to fit your needs. You don't need all that other stuff, because it is all a moot point if your going to go to arbitration. When your done, file with arbitration so it doesnt come back to bite you. Especially if the judge stays the case instead of dismissing it. PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Petition to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about XX/xx/xxxx, Plaintiff filed its Complaint against Defendant 2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A attached). 3. 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. ( 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. 4. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION et ux, 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, 103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). 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, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (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, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). 5.The Defendant elects arbitration with JAMS to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement. Respectfully submitted this day xxxx, 2015 Me, Defendant, pro se VERIFICATION BY AFFIDAVIT Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief. _______________________________________ XXXXXXXXXX, Defendant Pro Se Witness my hand and official seal this the _________ day of __________, _________. (SEAL) ____________________________________ Notary Public My Commission expires: ____ / ____ / ________. I CERTIFY that I mailed a copy of this MOTION to: XXXXXXXXXXXXXXXXX., Plaintiff's attorney Their address By: Your name typed, Defendant Date: __________________, 2015
  2. You can file a motion to dismiss, but you would need to make it a motion to dismiss, and a motion to compel priviate contractual arbitration. There are samples of this motion in this forum, need to search for it. AAA will cost you 200.00 if you get your motion granted.
  3. well was the witness one of the ones they listed? They should have listed their name and address, which should show which state they live in. Or a direct question of "do you live in the state of xxxx. (where bank is)? and if not, what city and state do you live in would do. Account stated means they are not suing on contract. they are suing on what your last statement showed. In order to sue on Account stated these elements must be present. The elements of account stated are: (1) prior transactions between the parties which establish a debtor-creditor relationship; (2)an express or implied agreement between the parties as to the amount due; and (3) an express or implied promise from the debtor to pay the amount due. When a creditor sues for account stated, this sets both the debtor's liability and the exact amount the debtor must pay, which on its surface is less complicated than claiming a debt is due and payable. An account stated may carry a longer statues of limitations (time to file suit) than some other forms of debt, depending on the state. “An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance." "An account stated is merely a form of proving damages for the breach of a promise to pay on a contract. So you would need to prove you didn't do one of those 3 elements. prior transactions, implied agreement (which is made when you make a payment on the account) or show the amount is not correct.
  4. They can live more than 150 miles away, but must be available for service within that 150 miles 10 days before court. I think it is not pushed unless the defendant makes it an issue. Just like if you don't object, they can get away with almost anything.
  5. Your ok Sun. So do you have a trial date yet? Basically the affidavit above is a ccp98, they will want to use this so they don't have to have a witness appear. It is not admissible in court if you object to it. There are a few threads you should read, starting with one pinned at the top of this forum by ASTMedic. his is a step by step that he did to win his case. Some will get a little more tricky. Homelessinca has a thread I highly recommend you read. He is also from san bernadino. His case was very intense, and he won. You can win. For your interrogatories, you need to answer them, but without admitting. There are many examples, homelessinca may have his posted in his thread. but basically something like this Interrogatory Number 1: Did you every submit a request for a credit account to CITIBANK, N.A. Defendant does not recall requesting a credit account with Citibank NA. (It doesn't mean they didn't just send you a card, ) Interrogatory Number 2: Did CITIBANK, N.A. Issue a credit account number [Number Omitted]in your name? After a diligent search and reasonable inquiry, Defendant has no records showing a Citibank NA credit account with the xxxxx number in my name. Interrogatory Number 3: State the approximate date you opened THE CREDIT ACCOUNT (for the purpose of these interrogatories, THE CREDIT ACCOUTN shall mean credit account issued to you by CITIBANK, N.A. Account number [Number Omitted]. Objection. Plaintiff is asking for a date opened on a credit account that has not been established as defendants. without forgoing objection, after a diligent search and reasonable inquiry, the defendant has no records relating to an account issued by citibank na account number xxxxxxx. Interrogatory Number 4: IDENTIFY (for the purpose of these interrogatories, IDENTIFY shall mean to sate the name, address, and telephone number) each and every person than yourself who has ever had possession of any credit card for THE CREDIT ACCOUNT. After a reasonable inquiry and diligent search defendant has no records of THE CREDIT ACCOUNT. Interrogatory Number 5: IDENTIFY each and every person who you every authorized to use THE CREDIT ACCOUNT. Objection. Asking for information when THE CREDIT ACCOUNT has not been established as belonging to the defendant. Without forgoing objection, after a reasonable inquiry and diligent search defendant has no records relating to the credit account. and so on an so on. Your rules tell you what you must include in your answer. After a reasonable inquiry and diligent search is usually accepted by most courts as proper, if you have no records, etc. you want to deny on your admissions, and state the reason why after it. It could be also the phrase above. make sense?
  6. Most lawyers will advise you to settle if it is the OC. If they do bring a witness, you might lose, but if they can't answer some of those questions, then you shouldn't. They need to authenticate your account. So whoever the person is they need to know the procedures for keeping records, and verifying accuracy in the OC. The witness needs to be someone who does that specific job, not just someone that works there. But it is always up to the Judge, if he thinks it's good enough, then all you have is an appeal. So above where I said guaranteed it wont be from the OC, I guess I didn't realize it was the OC suing you. IF they bring a witness, it has to be from the OC, but they still need to know all the procedures of keeping records.
  7. I don't think you sent it to late, I think that statue is for a motion in limine, not objections. BUT. List all the same objections in your trial brief, be prepared to explain them orally. If they don't have a witness, and the judge asks you if you will accept the ccp98, the answer is no. If they do have a witness, guaranteed they will not be from the OC, so get a list of questions geared toward that to ask them on the stand. Here is a sample list of questions. questions to ask witness (1).docx
  8. yes, and point out this is from the website. ig they still object, then ask them for their original and true copy of the agreement. If they can't produce it, you should be able to use yours.
  9. I can tell you what probably would have happened if you would have spent the 400.00. You would have won, and it would have cost you some time and 400.00. not 1600. and they hardly gave you a deal--only 300.00 off. But if your happy, we are happy. Don't worry there are plenty of California threads here where the defendant saw it though to the end and won. To the other posters in this thread seeking help, I highly recommend you start your won thread, we can help you. Good luck.
  10. You can cite this case, the guy was trying to get out of arb, the appeal court affirmed arb is where the case needed to be heard.
  11. Nope. Keep your mouth shut. Only thing you need to say is you want to go to priviate arbitration per the credit card agreement. If you really want to make an impression, find the motion to compel arbitration floating around this forum, and take from it the federal ruling on arb, quote that to the judge. Look in GA rules about anything about arbitration, quote those too. If he denies it you have an excellent grounds for appeal. You shouldn't have to do anything more.
  12. Object, they needed to send you everything they plan to use against you. So before trial, I would object to the witnesses, they do not comply with civil code if he did not list what they would be testifying about. Object to any new information to be offered at trial. I see a dismissal in your future.
  13. If you are going to ask for arbitration at trial, make sure and bring a copy of the credt card agreement that outlines the arbitration clause. Bring a copy for the plaintiff and the judge. You can give it to the plaintiff in the hallway and tell him it's a dismissal or arbitration with JAMS ( if that's the arbitrator in the agreement, it could be AAA, either will do, but JAMSHEDPUR will cost them more
  14. Ja meet and confer is nothing more thn an informal letter to the attorney telling him whatever it is you want to say. Like why his answers to your discovery questions were inadequate, and to respond. If you plan on filing a compel motion, you would give him say 10 days, and say you will file the compel motion if they don't comply. they will ignore it. You would have to file the compel motion to show you mean business. You have a choice. ASTmedic took the easier way to win, his thread is at the top. Homelessinca fought with every thing you can do, and won. Read both threads, and it will help guide you.
  15. If they have not sent you anything else identifying the account, I would answer them the same way you did the first set. reiterate the BOP was not sent. And you may want to send your own discovery (I don't know if you have) but hone in on asking for that forward flow that is mentioned in the bill of sale.
  16. You could dispute again in writing and ask the CRA for a Method of validation. They have no send you the name and # of the person validating the entry, or they have to delete it.
  17. here is what your CCP says about witnessess. 93. (c) The case questionnaire shall be designed to elicit fundamental information about each party's case, including names and addresses of all witnesses with knowledge of any relevant facts, a list of all documents relevant to the case, a statement of the nature and amount of damages, and information covering insurance coverages, injuries and treating physicians. The Judicial Council shall design and develop forms for case questionnaires. and then there is this one. 6. (a) Any party may serve on any other party a request in substantially the following form: TO: ____________________________________________ , attorney for ____________________________________: You are requested to serve on the undersigned, within 20 days, a statement of: the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a description of physical evidence you intend to offer; and a description and copies of documentary evidence you intend to offer or, if the documents are not available to you, a description of them. Witnesses and evidence that will be used only for impeachment need not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW. (b) The request shall be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered. (c) A statement responding to the request shall be served within 20 days from the service of the request. (d) No additional, amended or late statement is permitted except by written stipulation or unless ordered for good cause on noticed motion. (e) No request or statement served under this section shall be filed, unless otherwise ordered. (f) The clerk shall furnish forms for requests under this rule. (g) The time for performing acts required under this section shall be computed as provided by law, including Section 1013. If it is to late for them to send you another ccp98, I would object to those 5 witnesses if they did not include all the above information in your ccp96. You can do a meet and confer and tell the lawyer you intend to object to all witnesses, and file your objections, or you could just file the objections and see what they do at court. Hold the judge to the letter of the statute, if he doesn't follow it, you have grounds for appeal. You say they sent you addresses, did they include what they would be testifying to? If they did include all the info, I would still do the objection for nont sending you who they intended to call vs. who they might call.
  18. Depends on how busy they are, how bad they want to work the case to settle. If they had no intention of suing you for it, they may bite. If they were biding their time letting interest collect, they may plan on filing suit before the SOL runs out. Anyone's guess. I would start low. If they counter you can decide if that is affordable, if not, you may counter that offer. State you will be borrowing money from relatives to pay them, sometimes helps on the counter. Good luck.
  19. My Take: Crapola you have received some excellent advice for your 2 suits. It is obvious you have no idea what you are doing, and you are going to get creamed when you get to court. This is how I see your options on both accounts. 1. Cram crash study your rules of civil procedure, and make sure PRA has followed each one to the letter, if not file objections (written briefs why they should not be considered as evidence against you) This is what it will take to fight this in court. You HAVE to know your rules. 2. Settle with them. 3. File a motion to compel private contractual arbitration. This would be the easiest way out with the least amount of learning, at least for now. Yes you take a risk they will follow you into arbitration, but it is highly unlikely. 4. Don't show up to court and lose anyway. This isn't going to just go away, you have to make it go away.
  20. oh the best way to get it dismissed before or at trial is to write that objection, and get it to them a few days before trial. Check your local rules, you may have a time limit on when you can send it. Send it late as possible so they won't have much time if any to correct their mistakes.
  21. Couple of things. If this is an original creditor, the FDCPA does not apply. If the lawyer is a lawyer AND a debt collector, it may apply to him. If he is not a debt collector, but just a debt lawyer, they won't apply. I would write up an objection to every piece of evidence they have. Object to the contract , show it contridicts the years the creditor says it was during the course of the account. Did they list only names of the witnesses? They must include addresses, all within 150 miles of the court, as well as what content each witness will testify too. so that you may issue a subpoena if you so choose. If they did not list any addresses, object to each and every one of them. Object to the CCP98, even if they did withdrawal it. state the person who signed the ccp98 is not able to be served. Did they send you a CCP96 yet? Any evidence they sent you, object to it, find a corresponding reason. all records are hearsay unless they get a live witness from the OC to authenticate them. Some judges will try to back you into a corner by asking you to allow the ccp98 in if you object to their live witnesses. DO NOT agree to it. If the witness as not proved to be a competent witness, you could win it on appeal. Search out Homelessinca in this forum. He has a long thread, there will be a lot of similarities. He wrote some great objections, you will be able to glean some of what you need off those. His was with a JDB, but rules for authentication are the same.
  22. They are suing you on several counts, including account stated, so I would say yes, the things @Texasrocker posted would apply. You need to ask permission for discovery, so follow the the advice in his thread, he walks you through it. Questions outside what he says to do, post here. He has helped a ton of people from Texas. I would trust his advice.
  23. I would close that bank account and open one at another bank if you have funds that go directly into it. They will continue to take your money until the debt has been satisfied. Did you get sued and lose?