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Clydesmom last won the day on July 12

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About Clydesmom

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  1. Did you serve your answer on ONLY the court? If so, that is why. You have to serve the answer on the court AND the Plaintiff.
  2. Correct. The FDCPA applies to third party collectors NOT to the creditor that has the direct relationship. i.e. the original creditor. Discover is not bound by FDCPA law. Try for arbitration to buy time knowing it is only doing that. Find a way to settle for a lump sum payment and make it go away.
  3. The card agreement that was in force when you defaulted is the one that is relevant. If you defaulted after that 2014 agreement became effective it is the correct one. Unfortunately the FDCPA does not apply to an original creditor like Discover. Even if the law firm did violate Discover will simply dismiss Zwicker and hire another firm forcing you to purse the violation against them separately. The worst that can happen is the court denies it but Discover will not back down from it. They will follow you in despite the expense.
  4. There is NO CONTRACT in a credit card case and the courts know it. They will not be looking for one. When you received the card did you sign a contract and send it back? NO. The card agreement and terms clearly states that by accepting the card, using it, and making payments you agree to the terms and conditions. That is the contract. As for the application since you admitted the account is yours they no longer need one. The application would only be beneficial to you if you were alleging identity theft. They can win with this.
  5. Did you actually file to use the benefit? It is not automatic and not all financial losses qualify for the coverage. You have to apply and they approve or disapprove the coverage. What exactly is your counter claim?
  6. She is trying to tell you that you have defenses available and not to just surrender. Absolutely. You need a good real estate lawyer ASAP. Start calling now. You can use Attorneys to find a lawyer. Twice I have hired a five star PEER rated attorney through them and received excellent representation at a reasonable price. The major issue is this is not just debt collection there are potential property rights involved. You need legal advice pronto.
  7. You have two options. 1: send Midland letter stating the JAMS case is opened and you look forward to arbitration. They should respond they are dropping the matter. Or they could ask what it would take to get you to drop the arbitration. THEN you issue your demands i.e. delete trade line, reimburse the JAMS fee you paid etc. They dismissed before this and they cannot change their dismissal to without prejudice now. Once you have a signed agreement from them you close the JAMS case. Second is do nothing. You have won. The goal is they drop the court case: they did. They are not going to arbitrate. You can sit and do nothing until JAMS closes the file because Midland didn't pay their part. Keep copies of EVERYTHING. We have not seen any JDB try to come back after dismissing and not arbitrating but if by some weird planetary mix up they did you have a gold plated defense in a second court case: failure to arbitrate. Yes, a dismissal with prejudice was ideal but the Plaintiff beat you to it before you even got to a negotiating point. Take the win and move on. As I said earlier we have not seen a JDB try to come back and sue again after being slapped with the arbitration defense successfully. I would let it go.
  8. The court doesn't have to grant it. The Plaintiff can withdraw the case without prejudice at any time prior to trial commencing. It is done. Simply mailing the forms does not commence arbitration. Your uphill battle in my opinion is also that the time frame is SO short between the mailing and receiving that JAMS had not started the case yet. Until they notify you the case is received and open it is not started officially. JAMS received the mailing on 7/25. That in no way means they opened it and started working on it that day. Have you even heard from them as of today that they started a case for you?
  9. You won. It is over let it go. There is NO way to re-open the case and force them to dismiss with prejudice. Chances are zero they come back and try again.
  10. It should also be noted that this was SIX years ago at the tail end of the recession. It was a lot easier to beat OCs and JDBs back then. Much has changed and it is not so easy these days.
  11. You REALLY need to start your own thread instead of trying in this one. The OP in this thread is from a completely different state and has a completely different problem.
  12. There are two major problems you have with an OC lawsuit in ANY state. First: Capital One removed arbitration as an option a decade ago so that is not an option. Second; there are only two affirmative defenses to an OC suit; the SOL and identity theft. Since the account is yours that is not an option. If they filed within 4 years of the DOFD the SOL being expired is not an option either. When did you default? My understanding is a Plaintiff CAN file a complaint as verified in CA but it is not required. Verifying the complaint changes your defense options but does not make or break their case per se. They also do not have to provide all their proof in the filing. That is what discovery and trial are for. Absent affirmative defenses or the ability to use arbitration to get a better settlement your only options are settling, bankruptcy if you qualify or judgment. Cap1 is extremely aggressive among the creditors and as an OC they will not need affidavits to attest to their own records. They will have ALL the proof they need to win. Settle or file BK. Chances of winning are slim to none on this one.
  13. It isn't an option. From the first post: "my understanding is the arbitration argument won't work since General Sessions is small claims and there is an exclusion for it in the loan agreement (I found a copy of it)." See if you can borrow enough money from family to settle this. Judgments are good for at least 10 years in TN and carry a 10% per year interest rate or the contractual rate which on a payday loan would be far worse. Either way by the time you graduate and do get a job that debt could balloon to near $10,000 and make garnishing your wages VERY attractive to them.
  14. WARNING: Newbie poster re-activate a thread that is over a year old.