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Everything posted by CCRP626

  1. They quit calling. AMEX was a problem in the past, even calling Sunday mornings at 8. Even speaking with them and requesting they not call again just got a new AMEX person from a new part of the world calling so call block wasn't working for that. Although CFPB complaints say something like 15 days to get with the company, the calls stopped by the next day. You have nothing to lose, it's a free complaint with a quick form to fill out and hit send. What else are you going to do, escalate up the line hoping for the right person at Discover who will listen to you say cease and desist all calls? Your girlfriend can also file her own complaint stating she has no account with them and they keep calling her cellphone to collect on another account, simple. The mindset to have at this point is unless they have a written settlement offer for you, they've already sued you and you've decided on arbitration. The calls you're getting sound like the internal collection ones before an account gets charged off trying to work something out before they have to take it to court. Their attorney may even have an offer when you show for the hearing. Court or arbitration has discovery/exchange of information beyond settlement offer rules. If the calls continue, when you show for your MTC hearing bring it up to the Judge (motion/injunctive order if needed). If your phone number is on the papers you've filed, I'd use that in your favor. Date filed, amount of calls since that date shown on Google Voice logs. Print those out to have backups in case the logs get deleted someway. Your girlfriend could do the same for her cellphone.
  2. Didn't that one end up with a job at the law firm who represented him, so you may not win the case but you come out with a new job?
  3. @Jking57 sorry if I wasn't too clear. " Too many times someone has come here six months after answering without revealing it and 30 posts into a thread a bunch of time has been wasted." What I meant was too many times someone starts a thread asking for help. It takes many posts of questions before the defendant lets slip out the case has been ongoing for sometime. The defendant's answer left out key affirmative defenses. It's too late to amend the answer. The Plaintiff has already filed a Motion for Summary Judgment. It's been over 30 days since the Plaintiff sent this list of questions the defendant doesn't like, they call it request for admissions. The defendant is not going to answer them. Hey, heard these JDBs give up after awhile but this one's still after me and trial is two days from now. They say they're an original creditor, I say a JDB. About this arbitration thing. How do I file it?
  4. Seems like even if AAA or JAMS wouldn't take it, that leaves under the FAA and Michigan's arb code, another choice of arbitrator. It never would get to the point of ending up as a court trial. Dismissal seems appropriate or Midland will get the idea to not just stop with failing to pay AAA's fees but also quit paying JAMS until they run into a class action they want to arbitrate, then they'll pay up for that. If the Judge appoints an arbitrator, you'd want to know the background. You also get options to vacate any potential award and appeals based on lack of neutrality. 691.1691 Appointment of arbitrator; service as neutral arbitrator. http://www.legislature.mi.gov/(S(a3bftsqccuadx3dvgxf5wbmc))/mileg.aspx?page=getObject&objectName=mcl-691-1691 Sec. 11. (1) If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitration proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or an arbitrator appointed by the agreed method. (2) An individual who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party shall not serve as an arbitrator required by an agreement to be neutral. https://www.law.cornell.edu/uscode/text/9/5 If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.
  5. I don't remember much detail but I think there was a rule if a settlement offer was not accepted and the case continued, if that couldn't be beat continuing on, there would be sanctions. I think I've seen something similar in court ordered "non-binding" arbitration. It's non-binding and you get a de novo appeal but if after that you aren't in a superior position, you pay penalties.
  6. Too many times someone has come here six months after answering without revealing it and 30 posts into a thread a bunch of time has been wasted. Useful info, just round the amounts. Need to know which court, small claims and such to help find rules. County comes in handy when finding forms or other info for posters.
  7. I think I know who you're talking about. Didn't that case also change what was supposed to be strict liability into something else? Clear violation but can't give you $1,000? Would you suggest maybe adding a signature line that says something like"JDBs really perform a useful purpose to society. I would never think of suing one unless I felt it was absolutely necessary"? That can come out in discovery as well.
  8. @yescats I think Discover has Delaware as choice of law so in addition to the consumer protection laws already mentioned, research Delaware's. I'd keep Florida's laws in there though. https://www.nclc.org/images/pdf/udap/report_50_states.pdf http://www.nclc.org/images/pdf/udap/analysis-state-summaries.pdf
  9. See what your cardmember agreement states if this is with an original creditor. Some of them have an address to send notification to. Pennsylvania has court ordered arb so make sure you specify private contractual arbitration. Make sure you look over the appropriate rules for the court you're in, common pleas, magistrate and any local rules as well. I did run across this Notice To Answer form it looks like you need to attach to your paperwork. http://www.pacode.com/secure/data/231/chapter1300/subchapBtoc.html A defendant who seeks to compel arbitration of a claim for which a plaintiff is not seeking arbitration shall proceed by preliminary objection or a motion to compel arbitration. The motion for a rule to show cause why arbitration should not be compelled shall begin with a notice substantially in the form prescribed by Rule 1330 and shall be served pursuant to Rule 440. In the absence of a court order otherwise, the timely filing of the motion stays proceedings pending resolution of the motion. (Caption) Notice to File Answer The motion attached to this notice asks the court to enforce an agreement to submit claims to arbitration. If you oppose submission of this claim to arbitration, you must file an answer to the motion with the Prothonotary within twenty (20) days of mailing or other service of this notice. If you fail to respond, this case will proceed to arbitration and may result in the entry of a money judgment against you. Official Note A court may by local rule require the notice to be repeated in one or more designated languages other than English.
  10. @yescats you can name them filing in court after you stated arbitration as a claim for the arbitrator to review but I don't know about that as a consumer law violation. Google Scholar is a good research tool you can use to review caselaw. @BV80 might know of any cases. Did you have a clause like this in the agreement, if so maybe mark that claim as failure to abide by agreement? IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM If they already know how to get a hold of you and you're just not picking up, calling your girlfriend would be a violation. She could also bring her own case but since she's not part of the agreement to arbitrate should contact a consumer attorney who would take the case on. FDCPA would cover atty fees, TCPA does not but each call is $500. FCCPA you'd have to check. A couple of articles on this- http://www.reuters.com/article/us-twc-robocalls-idUSKCN0PH2H920150707 http://blog.credit.com/2011/04/getting-collection-calls-for-someone-else-heres-what-to-do-19814/
  11. @scarab That second debt they called about, did they send anything in the mail? See 5 day followup letter in 1692g. https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text#809 See Rule 6e for consolidating cases: https://www.jamsadr.com/rules-streamlined-arbitration/#Rule6
  12. @LunarMom that mediation date isn't until mid-November. It sounds like you've filed your answer and/or MTC Arb. Is a hearing date set on the MTC or any other date set? When you drop off your no mediation motion before the 10 day period is up, that would be something to inquire about.
  13. Don't think so based on this research. Bankruptcy would wipe it out. Note, they have a certain amount of time to take an award from arbitration into court to enforce it. If they fail to do that or fail to follow the proper procedure under the FAA, the award is worthless without ever having to worry about bankruptcy. http://www.bankruptcylawnetwork.com/bankruptcy-discharge-and-arbitration/ The debtor/creditor relationship changes after discharge: “The very purpose of bankruptcy is to modify the rights of debtors and creditors.” Phillips v. Congelton, L.L.C. (In re White Mountain Mining Co., L.L.C.), 403 F.3d 164, 169 (4th Cir. 2005)(quoting 1 Collier on Bankruptcy, P 3.02 [2](15th ed. rev. 2005)). Accordingly, any arbitration agreement between debtor and creditor has been permanently modified by the bankruptcy discharge. Specifically, the agreement has been rendered unenforceable and to maintain otherwise violates the Discharge Injunction of 11 USC 524.
  14. @yescats Sorry if I wasn't clear. Since you're filing the demand with JAMS, you're the claimant and the Plaintiff is the respondent. Anything you put down on the form will be the claims, the respondent enters counterclaims. They're responsible for entering their complaint as a counterclaim. If you're receiving all these calls, file a CFPB complaint online. That has worked for me in the past with a harassing original creditor who may feel they aren't a debt collector under the FDCPA so can do what they want. http://www.consumerfinance.gov/complaint/
  15. Clearly it's against the law, but does anyone have a letter I can use to respond that they legally cannot assign wages AFTER revocation was effected (and I'm sure they know that)? The thing is they already know and have confirmed you've done everything correctly. Here are stop wage assignment letters to creditor and employer. https://www.illinoislegalaid.org/legal-information/stop-wage-assignment To cover any loopholes, send certified return receipt to the creditor. FAX or in person drop off may not be enough. http://www.egblc.com/images/legal_reports/2005/vol9no2dec2007.pdf If you can schedule a consult with a consumer attorney, that would be a good idea. They'll be able to tell you if they'll be paid by certain violations so it wouldn't cost you. http://www.consumeradvocates.org/find-an-attorney I'd go ahead and file a CFPB complaint at this time. They will contact the company for you. See Loans>Payday Loans section. http://www.consumerfinance.gov/complaint/ IL Atty General and Better Business Bureau are additional options. Consumer Fraud Hotline number depending on where you are in the state-http://illinoisattorneygeneral.gov/consumers/payday_loan_reform_act.pdf Research Illinois (at least two laws) and federal law below on this for violations. http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2697&ChapterID=67&SeqStart=600000&SeqEnd=2100000 (815 ILCS 122/2-7) Sec. 2-7. Wage assignments. Any payday loan that is a transaction in which the lender accepts a wage assignment must meet the requirements of this Act, the requirements of the Illinois Wage Assignment Act, and the requirements of 16 C.F.R. 444.2(a)(3)(i)(2003, no subsequent amendments or editions are included). A violation of this Section constitutes a material violation of the Payday Loan Reform Act. (Source: P.A. 94-13, eff. 12-6-05.)
  16. General is fine. Study the JAMS streamlined and consumer rules. You will be able to modify your claims. The JDB has to provide the funds to start the process. Arbitrator selection is later. If the JDB or attorneys contact you trying to get more information, mention arbitration rules cover exchange of information beyond settlement agreements. I think I saw the one you posted has the three member appeal which is good as far as another price hurdle for them. JAMS Streamlined Rule 8. Interpretation of Rules and Jurisdiction Challenges (a) Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and conduct of the Arbitration Hearing. The resolution of the issue by the Arbitrator shall be final. (b) Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
  17. What are the differences in any of the agreements produced so far? Has an agreement been found from the original creditor that does not contain arbitration? The court is only to determine if there is a valid agreement to arbitrate. You'll want in-person hearings, one of the keys of JAMS consumer rules to sort all these agreements out. If you send in the demand form you will be the claimant, the JDB will be the respondent and any claim they brought to court will now be counterclaims they will have to fill out. Let them do that work. They may think their court case and all it contains is getting transferred over to JAMS.
  18. Both parties seem to agree on one thing, there's an agreement to arbitrate. The argument is over who starts it with JAMS. As soon as you send the demand form to JAMS instead of the Plaintiff doing it, you'd not be able to use the JAMS rule that says the company pays your fee. If that's not a big deal, go ahead and send the form. One thing they're attempting to say is you haven't initiated because you haven't started this with JAMS. That's the Plaintiff's creation. The Nevada Arbitration Code says initiating is giving the other side notice. The agreement doesn't say anything different. JAMS Demand Form asks for the court order compelling arbitration which would cover you for not going to JAMS until an order to arbitrate was issued. NRS 38.223  Initiation of arbitration. 1.  A person initiates an arbitral proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.
  19. @LunarMom you spoke with a clerk, they don't make that decision. A Judge would review your Motion. If you check the statute out, about the only thing that gets you out of mediation is FAA governed arbitration. I'm sure a lot of people call them trying to get out of mediation but don't have the qualifying exclusion you do.
  20. read that section again. There's a difference between "shall" (motion and opposition required) and "may" (reply to response/opposition is optional) Make sure you get a hearing date set up by their rules so your motion gets heard. Upon the expiration of the 5-day period, either party may notify the filing office to submit the matter for decision by filing and serving all parties with a written request for submission of the motion on a form supplied by the filing office. The original of the submit form shall be delivered to the filing office. Proof of service shall be attached to the motion and response. 5.  Decision shall be rendered without oral argument unless oral argument is ordered by the court, in which event the individual court department shall set a date and time for hearing.
  21. I'd hold off on the $250 sending until after the court order to arbitrate. Go ahead and file the demand form with JAMS, all the directions are on the front of it. You'll be sending a copy to the Plaintiff, so there's the rebuttal which you can also provide a copy to the court. Don't let this get caught up in a bunch of state law confusion. It's under the FAA, the court you're in will see state laws can't interfere and will have to approve it. You get instant appeal if you don't get a court order to arbitrate. Plaintiff does not get the same treatment to appeal the order to arbitrate. they have to wait until after arb is complete.
  22. @scarab are the arbitration terms the same through all the various agreements? If so, point that out to get this into arbitration. Let the arbitrator decide which agreement choice of law applies. Bring a completed JAMS Demand form to your hearing and tell the Judge you're ready to arbitrate but feel the burden under Nevada law is on the party who brought the claim. You can also mention pointing to the form that you weren't going to submit paperwork to JAMS without a court order. Recently you were prepared to lay out a lot more than $250 to participate in the court's various dispute programs. If that hasn't changed, I'd be prepared to send $250 to JAMS just to see the Plaintiff drop this soon after.
  23. @LunarMom unless the clerk has a form, do something like a Motion for Withdrawal from Mediation. Case isn't appropriate for mediation pursuant to Tex. Civ. Prac. & Rem. Code Ann., Section 154.001, et seq. Pursuant to Sec. 154.022 (b), Defendant has filed her written objection in a timely manner. Point out you have filed or will be filing your Motion to Compel Private Contractual Arbitration under an agreement governed by the Federal Arbitration Act. Under Sec. 154.021 (c) Except as provided by agreement of the parties, a court may not order mediation in an action that is subject to the Federal Arbitration Act (9 U.S.C. Sections 1-16). At the bottom of their form it says "Encl: Dismissal". What was included?
  24. @LunarMom you can bring up they shouldn't have a mediation session since you're going to arbitration under the FAA. Let them know within 10 days. http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.154.htm Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral. Except as provided by agreement of the parties, a court may not order mediation in an action that is subject to the Federal Arbitration Act (9 U.S.C. Sections 1-16). "Court" includes an appellate court, district court, constitutional county court, statutory county court, family law court, probate court, municipal court, or justice of the peace court.
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