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Clydesmom

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Clydesmom last won the day on January 9

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  1. Midland and their attorneys very much prefer the easy default judgment. They are more likely to dismiss if they feel they will have a fight on their hands. Losing what ever sum they were suing you for is factored in to their business model. They are not prepared to prove their cases. Dismissal keeps them from having to do that. That is why consumers are encouraged to defend themselves instead of giving up. Better to go down swinging than not try at all.
  2. Despite what others claim there are many Justice Courts that view themselves as small claims and have successfully denied a MTC based on that. None of this is needed. County Court is NOT Justice Court and would be above Small Claims. The carve out would not apply. The downside is at that level you have to follow ALL the Rules of Civil Procedure including formatting of motions. The 100 Rules of the court apply in County Court.
  3. Where exactly did you read this? Is your case in Justice Court or State Court? It makes a huge difference on the rules they must follow. They are not required to attach proof to the summons. You must get permission to do discovery if the case is in Justice Court and you must file for discovery in State Court if you want the evidence ahead of trial. No. Unfortunately neither of those are affirmative defenses to a defaulted account. There is no contractual requirement that a creditor mitigate the damages when a consumer defaults on the agreement. Likewise, there is no unjust enrichment if the account was purchased by a junk debt buyer. Under contract law they are legally entitled to collect on the entire balance due when the account was bought. They get all the rights and responsibilities of the original creditor. As has been said it is too bad you were injured in a car accident but that is not relevant to the legal situation at hand. The creditor is not required to made any deals and settlement discussions or offers are not admissible in the lawsuit. WHO is suing you? WHO is the original creditor if not the same as the entity suing? How much approximately? Which court?
  4. Unfortunately 6 months of late fees, interest and any other fee in the contract will balloon the debt back up to $1200 in no time. Take a look at the statements they sent you and see if that is part of what is contributing.
  5. Unfortunately your thinking is wrong. The dispute you sent to CA#1 has NO affect on CA#2. The first CA was required to cease collection activity until they validated. If the JDB chose to simply move it to another CA then you were required to start the dispute process all over again under the FDCPA. There are no violations of the TCPA with CA #2 because your cease and desist to a different entity does not carry over for that either. While consumer rules for arbitration do not allow the award of attorney fees when the contract does not mention them in the terms, I believe that if the contract does provide for it then the terms of the contract prevail. You would need the opinion of a licensed attorney to be absolutely certain. The bottom line is you owe a LOT of money. The chances you can come up with enough violations to make them back down are slim to none. Arbitration MIGHT make the fold. Use that to see if you can get a better settlement.
  6. Yes it means they can ask the court or arbitrator to award attorney fees in addition to the $1000. It is not accurate. Most states have laws in place that state attorney fees must be "reasonable" for the case as tried. If you do arbitration reasonable attorney fees could be a lot more than $5k if it goes all the way through the process. If it is a case in small claims court the fees would likely be around $750. No. It creates two claims not two contracts. One account in default = One contract. The 6 year SOL on credit card debt in AZ applies. You need to file an answer and an opposition to their MSJ. You can try a MTC arbitration but CreditOne has a carve out clause in their card agreements prohibiting arbitration for debt cases filed in small claims court. You would need to be prepared that the motion would be denied and that you would then have to defend the suit.
  7. Once they filed suit within the SOL it is tolled (stopped) while the case is active. A continuance will not push it out of SOL. Your only choice is bankruptcy, settling or defending the suit. Cap1 removed arbitration as an option over a decade ago.
  8. It isn't a CITI card. The OP said it is likely Capital One which means arbitration isn't an option at all.
  9. You clearly do not understand the FDCPA. The violations would be combined and still only eligible for $1000. The consult with a good consumer attorney would likely be at no charge but I would not get my hopes up given the size of the debt. There have been at least 3 on this forum alone where PRA agreed to and followed all the way through on arbitration. The most prominent thread ended up with an award for PRA including fees because the arbitration demand was deemed frivolous and not in good faith by the arbitrator. The Defendant ended up filing for bankruptcy after the award was confirmed as a judgment. I know of another case where Midland has followed through so far as well. I think with your 4 posts you haven't been around long enough to know what is likely to happen. Another common misconception. The price paid is based on a pool of bad debts not on each debt as a cost. While it may boil down to pennies on the dollar when the total purchase price is divided among thousands of accounts in the pool it doesn't matter. Under contract law they are legally entitled to collect on the entire balance of the account and a five figure debt of $16k is just too juicy for PRA to walk away from. The debt they got the award in and fees was not even that high. Another misconception. The threat of arbitration used to be a gold plated guarantee they walk. Not so much anymore. We are seeing more and more cases where they hang on until the Defendant settles. Assuming they can over come the exclusion in the card agreement preventing arbitration of debts in small claims court. Since you clearly can't comprehend what I told the OP I will try again: the courts have the ability to decide for themselves whether or not they are small claims and that clause applies. There are those here who split hairs down to the hub claiming that literally because it doesn't say "small claims" over the door to the courtroom or the paperwork that it isn't small claims court. Funny thing is the judges in quite a few felt otherwise and outright said "my court IS SMALL CLAIMS." and ruled against their motion for arbitration. That they have a solid back up plan in place for how to defend this case if the MTC is denied. The same thing I said in the first place.
  10. I was going off what I heard the Justice tell everyone a few years back. They may have changed it since then. It could also be what District 4 considers "reasonable" which is very subjective.
  11. Whether it applies in Justice Court depends on the Judge. While there are those that claim unequivocally that because Texas dissolved the formal "small claims" court for Justice Court years back ago that the CITI clause doesn't apply there are judges that have ruled differently. There have been several threads where an OP has come back stating the judge in Justice Court denied their motion stating "my court IS SMALL CLAIMS COURT" and that was it. The bottom line is it doesn't mean that you cannot file the motion. What the OP needs to understand is the burden of support is on the party that files. If the Plaintiff opposes the motion based on that clause in the arbitration section of the Terms and Conditions the burden will be on them to argue to the court why the motion should be granted and have Texas court case rulings to support the claim. It very much could. Another issue is that Justice Courts are now embracing court ordered mediation at a cost of $1500 to be split between both parties. Another way to pad the court coffers. You may not have a choice on that. You would want to invoke lack of jurisdiction and private contractual arbitration in your answer to the court as affirmative defenses. You would also file a separate motion to compel arbitration. Another thing to remember is that Justice Court requires permission to do discovery and if the motion fails you would still need to do that. You do not want to do it before the motion issue is resolved because doing discovery is participating in the litigation process and waives your right to arbitrate under Texas Rules of Civil Procedure.
  12. I see the OP is in Texas. If they invoked the Texas Finance Code in their DV to Unifund (not the bureaus) then they were required to validate. Texas is one of the few states that gives added protections to it's residents. If the OP sent the dispute to the bureaus then Unifund was not required to answer at all. If the dispute was sent to Unifund and the Finance Code was not invoked and it was outside the 30 day window they did not have to respond.
  13. It isn't a clear violation. Voice mail messages are not communication DIRECT with the consumer. Had you spoken on the phone to them at the time of either call the 5 day rule would have been triggered. It is borderline at best. Given the amount of the debt, up to $2000 in fines doesn't even make a dent in the amount they can be awarded in court. In these cases even if it is a violation they can simply fire the law firm and force you to pursue them separately for the violation while they continue with a new firm with a lawsuit to collect. The OP said the debt is $16,000. There is no way a $1,000 FDCPA award will wipe the debt out and PRA isn't the least afraid of the threat. PRA is the one JDB that has gone all the way through to the end for an arbitration award. They are not put off by it like others. We consider them the tip of the iceberg of potential JDBs that will eventually follow through on arbitration.
  14. If you identified as step mom they likely assumed you had power of attorney to sign for treatment. No POA needed to agree to pay though. If the visit was at least 5 years ago they cannot sue you. Well, they can but you have a gold plated defense if they did. My guess is at this stage they are simply sending "please pay this" letters and nothing more. If the debt is six years old I would simply let it fall off. In 18 months or less they can't report it either. The choice is yours if they cannot take you to court.
  15. Not in an emergency. You would not have been able to sign consent for her to have elective care. Unfortunately you likely signed two separate documents. One for treating her and the other for financial responsibility. NOTHING prevents a legal age adult from accepting financial responsibility in writing for someone else. Minor or not. The other issue with her being a minor in a medical emergency they actually did not require your signature either. The law in every state presumes that the parent(s) would want the child treated until stable in their absence until they can be located and consulted at least by phone. If the hospital had a true concern they would have spoken up but given that you were married to Dad and carried same last name as the child they likely assumed you were Mom and legal to consent. Did you inform them at the time you were the step parent without power of attorney? Nope. See above. It would also be extremely rare. The chances there is an arb clause in the financial agreement is slim to none. It can't hurt to look but I would not get hopes up on that.
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