Clydesmom

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Everything posted by Clydesmom

  1. Yup, its backwards. I too have no answer why they would move away from JAMS either then.
  2. JAMS does not allow the award of fees to the winner of the case and is WAY more expensive. AAA does allow fee shifting. That means if/when Discover prevails they can ask that their costs be assessed to the consumer as part of the award. Nothing on mutual walk away. What it means is that both parties are supposed to pay their own fees in arbitration or court. While the court has the ability to waive fees for poverty arbitration does not. This clause simply says if the consumer cannot afford the fees Discover will pay them. Rejecting the arbitration clause simply means that you cannot invoke that if they sue you for a debt or you have an issue with them. ALL issues would have to be settled in court. With Discover it doesn't matter. My opinion they refined these terms in order to eliminate JAMS as a forum so that they can ask that the consumer be saddled with all their fees if they win. Discover has not been afraid to arbitrate even going as far as appeals at great expense. Like AMEX they are acutely aware that a bad case for the consumer in court is equally bad in arbitration.
  3. This is also true for testifying in court or representing yourself pro-se. One of the first things taught in law schools is NEVER ask a question you do not already know the answer to.
  4. The courts in most states especially those with a Covid 19 hot spot like California are closed at least until the end of April. First verify the court is even open to file anything. If they aren't sit tight until the rest of this lunacy slows down or ends. Another reason to wait is the huge impact to the economy from the shut downs across the globe. It is entirely possible that with the fall out they never pursue this at all because of that.
  5. They do that because those people with judgments who have no exemptions would empty out their accounts if they knew what was going to happen.
  6. Crown is trying. Legally they can't but it doesn't prevent them from the attempt. After the last recession a law was passed requiring that when banks receive a levy they have to determine if the funds in an account are exempt from levy before freezing the account and seizing it. So if the levy had come in they would have looked at the source of your deposits (SSDI) determined if there were any non-exempt amounts (anything over 2 months worth of benefits is fair game) and if no non-exempt funds are there they do not freeze the account. A notice is returned to the court that the funds are exempt. The Judge will ask why you object to the garnishment. You show that you are only receiving SSDI not a paycheck which is legally exempt from garnishment. If the Plaintiff mentions bank levy you inform the judge the bank will not levy the account either under the law and Section 207 of the Social Security Act. (assuming the Judge doesn't stop them cold on their own). The Plaintiff MIGHT ask you about other assets. You state you have none. They go home with nothing. If it were me I would go. I would want the court to know that the Plaintiff is wasting their time and resources knowing full well they cannot legally touch disability payments. I would also want ot ensure that the court didn't presume the account was eligible for seizure and cause me problems that I would have to fight.
  7. Horse manure. That nonsense has been tried in defending collection suits for almost 2 decades and failed. NO ONE here is going to help you with that garbage. Waste of time.
  8. Congratulations! I am so glad I could help. Keep all paperwork from this hearing for at least a couple of years past the SOL expiring to sue again. That way if they do get stupid and try again you have it ready at your disposal.
  9. Opposite here in NV. Courts closed except for absolutely necessary criminal hearings. ALL non-essential businesses closed. Cops show up if you are in violation. Warning/citation/fine or loss of license. No gatherings public or private of 10 or more people. Possible misdemeanor if you violate. Take out and delivery open. Nothing else. Alcohol to go though!
  10. At the Covid 19 rate I am surprised they are even open to take the motion for garnishment let alone the hearing.
  11. I know she requested it but I don't know OH procedure and it could end up being both. Regardless I would still go and want the court to know I am on SSDI and exempt.
  12. It is possible this is also a debtors exam. That is where they will try to determine if you have any assets they can get to collect on the judgment. If you have none then the hearing is over. The court may require proof of the SSDI then deny their garnishment request when they get that proof. In my opinion it can't hurt to have the court be aware that your only income is exempt from garnishment and levy.
  13. While judgment proof is the popular phrase the correct term would be collection proof. Your SSDI cannot be garnished it doesn't matter how many forms they file with the courts. It also cannot be levied from your bank account provided you do not keep more than 2 months worth of benefits in the account. Winning the lawsuit is not based upon whether or not they can collect. It is only based on whether the Plaintiff proved that you do owe the money. The can win a judgment and never collect. Some never try. Others try all tactics. There is no set way to handle it. While you may be collection proof today that could change. You could win the lottery, inherit the house etc. Some creditors choose to drop it when the see SSDI others do not care.
  14. It is not. It is basic contract law that allows the rights to be transferred. Rights are not tangible. A security interest is. Perfection of the instrument is required when there is collateral such as the vehicle on an auto loan or house in a mortgage. Perfection of the instrument has nothing to do with credit card debt collections. NONE NO to both. The JDB is not a HDC because the account is not a negotiable instrument. Basic contract law. The card terms and conditions forms the contract between the consumer and the creditor. One of those terms is that all rights and responsibilities under the T&C can be sold to another party at any time. That means a bad debt portfolio of accounts can be sold or as in the case of HSBC years ago they sold all their credit accounts to Capital One to get out of the credit card business in the USA. Again, NO. Under basic contract law they get ALL the rights to the account that the original creditor had which includes the entire balance due to the OC at the time of the sale of the account.
  15. I don't think Midland is. Do they have one employee who is acting on their own and doing incredibly stupid things? YES. Under the legal doctrine of responndiat superior Midland is responsible for it though.
  16. How did you word the letter? If it is a cut and paste one from the internet then that is likely why they ignored it. 100% of those letters are riddled with errors. ALL using one does is tell the recipient you can cut and paste. The letter has to say "cease and desist calling me" for fullest effect you could add the numbers you want them to stop calling. If it said "all calls are inconvenient" then unfortunately they are free to ignore it or treat it as a full cease and desist. The wording used may be what is tripping this up. Did you openly state "I refuse to pay this cease and desist contact" in the letter(s)? Because if you did that will up the ante on how egregious their violation of the FDCPA is. If you simply sent copies of the reports then it is not as clear but most likely still a violation. If you out right said "this is not my debt (included the identity theft and police reports) and cease/desist then you have aggravated circumstances if they didn't drop it. However, it takes more than your word. You need recordings of the collection calls/voice mails. A phone number on a phone bill is not necessarily enough. I sued a much smaller CA for TCPA and FDCPA violations for refusing to stop calling me over the previous phone number owner's debt. Just showing the court they tried to call wasn't enough. It took caller ID photos, voice mails, recorded conversations on top of the phone bills. You also cannot use Google searches showing that there are sites like 1-800-Notes saying the number is Midland's. What helped me was in discovery they produced their call logs from the auto dialer showing they had called me and from ONE call I could correlate all the other attempted calls on the phone bill to them. I had all 4 CMRR receipts/green cards, copies of the letters, and all collection attempts by then. This small operation was well insured to defend my suit you can bet Midland is as well. If you want that from Midland then you are going to have to sue. You are misinterpreting what we are trying to show you. Midland hears threats of lawsuit and BK all day long every day of the week. They do not respond to letters saying "just apologize to me and go away." There is NO letter you can send that will simply get them to apologize and go away at this point. They do respond to Federal suits that show on the face they screwed up big time. In general after the recession and the CFPB coming down on them like the Gestapo Midland and the majority of the JDBs cleaned up their act. We rarely if ever hear of the kind of violation you are reporting. Do I believe they have at least ONE employee who is dumb enough to have said this? Absolutely. Do I believe this is how they are doing business as a whole? NO. A good consumer attorney may be able to pull this off with a threatening letter. You just need to accept that NO attorney is going to take the case just to get you an apology. Both of you have to get paid something to make it worth their time and trouble. Midland doesn't understand "oops my bad" they understand verdicts that hit their bottom line and call attention to them by regulatory agencies. My prediction is if you have the supporting evidence and it is admissible (which is a whole different issue for the attorney) is that Midland apologizes, cuts a check, fires the idiot, and if they are smart scrubs you from their system so that no one ever contacts you again.
  17. The maximum remedy for an FDCPA violation is $1000. If there are multiple violations related to the same account they would be grouped together as one violation. Unfortunately in court the intention is not what supports punitive damages. If the OP wants to recover on the intentional infliction of emotional distress they would have to show clear and convincing evidence via medical records for physical and emotional treatment for the damage(s) caused by the manager's statement. Especially at the Federal level of the court system. The Plaintiff in a case like this cannot just say that emotional distress was caused. The burden of proof is on them. Not to mention by his own admission he felt bad for "a split second" which will not rise to the level of a guaranteed six figure pay out. Another problem the OP is facing is what Federal Circuit they are in. TN is beyond creditor friendly. I do not know the tenor of the circuit but if it is anything like the one I am in the judges are loathe to make large awards to consumers in cases like this. My prediction is that it never sees a trial. The violation is clear. A good NACA attorney can get the payout to five figures (my guess is around $50k and most of that would be for the frustrations in dealing with them via multiple letters not one stupid remark) by leveling the threat that a NDA would keep the CFPB and other regulatory agencies from coming down on them separately if a verdict is rendered combined with the risk that a jury trial could go rogue and award a lot of money that would be expensive to fight on appeal. A guaranteed six figure payout for a dumbass statement and a split second of emotional distress? I doubt it.
  18. WHEN is the last time you paid any money to AT&T? If that date is more than 7 years from today then legally there is nothing they can do to collect via the courts or reporting. I can tell you that you are not going to be sued over this. AT&T doesn't sue. They simply pass the account around from CA to CA until the SOL to report passes. ERC is a credit report poisoner. They don't care about SOL and will place the trade line hoping the consumer doesn't know about SOL and pays anyway. If this account really is 10 years old since the LAST payment then morally you still owe the money but are not legally obligated to pay. Some people do choose to pay these accounts but there are no consequences if you don't settle the account other than AT&T won't give you another account until you do. You play whack a mole. Each bureau is a separate entity. If you REALLY want to settle this now is probably the best time ever. With all the panic and economic uncertainty in this country my guess is if you contact AT&T and insist they recall the account from ERC as part of the settlement you can get this dealt with. I would insist that the settlement amount is $X any remaining account is in dispute. ANY account from a CA must be deleted and AT&T agrees not to sell the disputed balance or report. My guess is they would go for it.
  19. As of today POTUS has suspended evictions and foreclosures for 60 days. All other civil type of cases likely depend on whether your courts are even open.
  20. Neither Credence nor ERC are junk debt buyers. AT&T typically does not sell their bad debts. They farm them around from CA to CA. ERC is a credit report poisoner. It was "opened" in January because that is when ERC got the account. They may not have posted it to the bureaus until March though. NO NO NO NO NO. NEVER dispute by any online methods. Send a letter in writing CMRR to EX to dispute the debt. DO NOT use a cut and paste letter from the internet. Ensure your letter is unique to your situation and calls into question the date of default.
  21. I still think it is regional. We have not seen them at all here in Nevada. I never saw one in GA, SC, or VA either.
  22. Chance of an arbitration provision in a financial agreement for healthcare is slim to none. I have been doing this almost 40 years and have yet to see one used by a provider. The cost to the provider is way too high considering most are small LLCs. Even large clinics or hospitals don't do them. If they defaulted on a CareCredit account that would have it.
  23. I think you mean creditor friendly. GA makes it very easy to sue a consumer and collect. It is why Cooling and Winter aka Freddie Hanna get away with the stuff they do.
  24. No idea but my educated guess is if it stays in the Met Life account it is protected but as soon as it moves to a regular account it loses that status. I would check with a lawyer to be certain.
  25. Not in GA. But since you know more than me I am bowing out and this case is now yours.