fisthardcheese

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Everything posted by fisthardcheese

  1. Ahh, that must be Colder and Snowflake ... or whatever the Hannah rejects are called.
  2. It's fine. Proposed orders are very minor issues. If the judge doesn't like something he will change it or write one up himself. The Motion is the most important one.
  3. Call a consumer attorney who does FDCPA work in VA where the court is located. Explain to them you got a judgement vacated due to faulty service but still received a subpoena for a debtor's exam. See if they want to take on any potential law violation for you. If they agree, they won't charge you.
  4. Beat it how? Are they suing you?
  5. I read it as he is PRO arbitration because it was clear they want nothing to do with it. When my opponent wants to avoid something (that I have an absolute contractual right to) like the plague, why would I do them the favor and go with their preferred venue of court? No way. I'm using arbitration where they are uncomfortable and unhappy. Every time. Not for consumer cases. You must use AAA, then. Its actually not difficult for us to say. Court is a sure loss. Arbitration is almost a sure win with Midland. That is my personal experience along with so many others on this board. Your amount being large means you need to really take the arbitration seriously and do a few things to set yourself up in a better position with AAA and not just sit back and wait for 'things to happen' after court grants your MTC. But given you are dealing with Midland, you should work out a nice deal in the end. Not really. But the only defense I would put forth in court is that there is a valid arbitration agreement between the parties and the Supreme Court has multiple case laws showing arbitration must be ordered in such a situation. Not sure what member you are referring to, but dozens of members come here weekly and file a Motion to Compel Arbitration on their own without an attorney. They subsequently get their cases moved to arbitration and eventually dismissed. Look around and you will see a lot of it. Start with the link about arbitration in my signature below. It will give you all of the basics you need to know.
  6. I've said all along this is not a AAA appeal. They will just reject an appeal without looking at it, obviously. If it were me, I would be on the phone to AAA demanding a supervisor take a look at my case file and call me back due to some serious clerical errors and flaws in the process. I wouldn't even bother with emails anymore which will go ignored or not fully read. Ultimately, I am sure this will require a lawsuit against AAA or the very least a complaint to the attorney general's office.
  7. If you are going to use arbitration, you do NOT want to participate in discovery. This is why I suggested getting the MTC filed asap. If your plan is to use arbitration, I would file it now and respond to discovery with objections as being outside the jurisdiction of the court due to a private arbitration clause that Defendant has exercised.
  8. This is very good info. I would suggest printing off these case names and excerpts to have in court with you as notes that you can refer to in the event the lawyer tries to say you waived your right by waiting too long.
  9. I mean, a dismissal is great, but I bet they weren't allowed to dismiss without your consent. They basically did an end-run around the court rules and didn't confer with you. If you wanted to check the rules and see, you probably have the option to oppose the dismissal and state that they did not seek your stipulation on a dismissal per the rule (cite the court rule number) and then go on to state that since it is clear they wish to dismiss, that you are willing to stipulate to a dismissal with prejudice. If it were me, I would do this. It sounds crazy to oppose a dismissal but after going through the appeal and all the stuff you had to deal with, I would want to put the final nail in this with a "with prejudce" ending. There is little danger since the judge will clearly see they want to dismiss and you are agreeing as long as it is with prejudice. They clearly do not want to arbitrate, so worst case, the regular dismissal stands, but there is a good chance you get a "with prejudice" dismissal instead.
  10. Did they dismiss without prejudice on a case that was stayed under your MTC order?
  11. Okay, let me put it this way. If I knew that I once had a HSN account backed by Comenity Bank, and that account contained a card agreement, and I have an agreement that is from HSN/Comenity Bank which has the same or similar wording and is from around or near the time my account was open, then I, personally, myself, would be comfortable stating in an affidavit that "TO THE BEST OF MY KNOWLEDGE AND BELIEF this is a true and correct copy" of my card agreement. Of course I can't say "without a shadow of a doubt" because the human brain is not flawless to that degree. That is why the legal term "to the best of my knowledge and belief" is used daily. You know enough to know. Do you see what I'm getting at? Because if you don't know at all, then you might as well not bother at all.
  12. If you haven't sent them a letter, just eliminate number 2 and renumber. It looks fine otherwise. If time permits I would try to look up some FL case law regarding arbitration to add in there in addition to the Supreme Court case. @Brotherskeeper might know of some FL case you can add. No need to bother mailing a copy since you aren't filing this until the day of the hearing and you will be handing it to the attorney instead. That will be your service to them. I would look for the attorney to ask for a continuance to have time to respond to your motion since you are filing it the day of the hearing. When they ask, I would tell them that you have no objection to a continuance and accept a new court date. This time will help you out too. If the judge denies your MTC you have the right to an appeal and SHOULD win on appeal, but I don't know what that would completely entail in FL off hand. You probably have somewhere between 10-20 days to appeal, so should that be needed you can come back here afterwards and figure it out. If the judge denies your MTC and wants to immediately move to rule on the alleged debt, ask for a continuance for 30 days (it's a hail mary to stop things and come back to re-group). If the continuance is denied, then do your best to refute their claims and make them prove that they 1) Have the proper chain of custody showing they in fact own this account and 2) can show how they calculated the alleged amount owed. Just deny knowledge of the amount or owing anything and force them to prove it. (also a hail mary).
  13. Don't worry about JAMS. You have a court hearing in 1 day. You need to get an MTC typed up in triplicate and preferably an affidavit testifying to the "true and correct copy" of your card agreement you will be submitting with it. Court issues must be done NOW. JAMS is down the road.
  14. Big congrats on your appeal! That is a huge win! You said you began the arbitration process but nothing is initiated yet? Can you clarify exactly what has happened step by step in JAMS so far?
  15. Did you file an answer at all? Anything that denied all their allegations in writing? I would type up an MTC using the template in the link in my signature. When you attend court, you want to cite the Supreme Court case law in that template which states that if there is a valid agreement between the parties to arbitrate, that arbitration is to be the preferred method. You would ask the judge to stay this case and order the parties to arbitration per the underlying Card Agreement contract. Bring the Card Agreement in with you that includes the arbitration section. Bring 3 copies of the Motion and the Card Agreement. 1 for the judge, 1 for the attorney and one for you to reference. If the attorney attempt to bring up the debt or any other aspect of the case, you should object and politely state that according to the Supreme Court, if This Court finds that there is a valid agreement to arbitrate between the parties, then all other issues are for the arbitrator to decide only. This means that with your MTC the ONLY issues the judge should decide on is if the agreement to arbitrate is valid. Which, if they somehow say you don't have a valid card agreement, then you would ask them to show proof that you don't have a correct copy. They won't have it, or if they have another agreement it should also have an arb section anyway. If anything happens that you are unsure of, such as the judge asking if you have something you don't have or a question you can't answer, ask the judge for a little time to find that. Ask for another 30 days. That is always a last ditch effort to extend it and come back here to re-group if needed. Midland does not even deal with arbitration. Once the court orders them to go there, they will want to agree to a complete dismissal. According to the card agreement and the JAMS rules, Midland is the one on the hook for all of the arbitraiton fees. You pay nothing.
  16. In this case, no MSJ or discovery has taken place. I think an MTC should be filed as soon as possible. I see no reason that it shouldn't be a typical MTC-arbitration type of case here.
  17. Yes, but no hearing was requested. The arbitrator essentially skipped over it because it was not made the sole subject of an entire phone conference at the very least. I don't know that we can say that with any certainty. They were willing to START arbitration by paying the initial $3500, and since they were not forced to an in person hearing or to deal with any other phone hearings, they got through the entire thing on the initial fees. Had this been ONLY about the 22K to start, and the other sideshow was not involved, then this would have been slowed down and given the amount, I am sure an in-person hearing would have been warranted. But also keep in mind, this was without a single opposition from the OP. Therefore, it would take any judge, arbitrator or mediator only seconds to find in favor of the Plaintiff on ANY case that is before them unopposed.
  18. The Sample MTC is one that had been used on the board for a while before I put the detailed article together and it initially had "Motion to Compel and Stay" in the heading but the prayer for relief had "dismiss or in the alternative stay". I didn't catch this discrepancy when I made the post and just updated it to make it consistent and removed the "dismiss" from the prayer for relief.
  19. I wouldn't even mention "dismiss". It just makes a potential mess of things. Both the State and Federal law here requires a stay, so asking for something else is pointless. Not to mention, I like stay much better in these situations.
  20. On the contrary, they have learned from longtime members on this board and previous ones, that something like a demand for arbitration letter is essentially the same as a dispute and to cover the legalities a verification of debt is sent. They are not obligated to do anything else unless you file an arbitration case and subsequent PTC in Federal Court.
  21. Immediately send the attorney a copy of what you have already filed in court!! Do it right now.
  22. Seems like you are continuing to dig yourself into a hole making this way more confusing and unnecessary. I don't know why you would include Unifund on an email to AAA where you are telling AAA they made fatal errors in the case. But I don't know anymore. Everything has been done so wildly different than I would ever do.
  23. The biggest issue as I see it, or "crime", as you say, is that OP was never given a chance to argue ANYTHING regarding the AAA22K claims. The arbitrator explicitly told both parties he will only hear the issues presented under AAA3K case number, yet the attorney continues to include AAA22K claims and evidence. OP did not refute this evidence, rather only objected to their inclusion against the arbiters previous ruling on the matter. But then the arbiter, instead of addressing OP's objections, simply awards the 22K to Unifund. That seems like a fundamental miscarriage of justice. This is the exact way I would present it to the judge. The arbiter made a major error and the attorney used frivolous actions against the orders of both the court and the arbiter in order to force her claims into the already opened, yet unrelated, AAA case (AAA3K). This is also the argument I would make sure AAA is clear on. That the arbiter said "I will only hear claims regarding AAA3K" yet went on to rule and award AAA22K claims when that case was closed for non payment AND the OP never got the ability to present their side of those issues due to the actions of the arbiter. If AAA will not correct that issue, and given this is for an amount of $22k that will end up as a judgement as a result, I would strongly look into filing a Federal lawsuit against AAA, personally for damages of $22k. I don't even know if that is possible or what case laws might be available, but I would start looking into that if this were me.
  24. Hopefully you will have a positive response from AAA before your hearing which, depending on what they say and do, could block her from bringing the award to your hearing. Hopefully.
  25. Again, I think you are bogging this down with a ton of irrelevant information. Keep it concise and simple. Start with the granted MTC and move from there. Explain what went down in AAA, show that SHE is the one who mixed cases together despite the fact she claimed YOU were doing that in her response to your MTS and also despite the fact that the arbitrator told her she can not mix the cases together.