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Everything posted by fisthardcheese

  1. Sorry, yes they did. I read your post as Credit One, but Capital One does not have an arbitration option. Another option is to file a counter claim against Capital One, but the FDCPA will not apply, so you will have to check on TCPA or FCRA. Credit reports might be the best shot at finding some inconsistency or inaccuracy that would allow a counter claim. Most cases where a counter claim is filed will end in a mutual dismissal in Magistrate Courts. If you want to settle, the consent judgement they want you to sign usually will not be filed unless you miss a payment. So long as you make on time payments and pay off the debt, they will agree to not file the consent judgement. This is the usual agreement. If you are unclear on that, you are welcome to ask them to email you the details of a consent judgement deal so that you can get a more clear idea of what it entails.
  2. Within 30 days from the date you were served you must file an answer. I dont recall if Fulton Co has a simple answer form on their website, but you can check the Magistrate Court's page and see. If they do, it's just essentially checking a box that says "deny" as to their allegations. If not, just type up a page with the case info at the top (similar to the complaint they served you) And type that Defendant denies all allegations as set forth in the complaint. And then in a second paragraph titled "affirmative defense", state that your defense is "Lack of Subject Matter Jurisdiction due to a private arbitration clause in the governing contract" When you submit your answer, the court will set a hearing date for about 30 days later. At this hearing you will bring with you a Motion to Compel Arbitration (3 copies) and when the attorney calls on you to meet with you and attempt to settle, you tell them you plan on asking for arbitration per the card agreement. The attorney will not like this, but tell them you will not settle at this time and then you will probably go in front of the judge and you had a copy of your motion to the judge and state again that you ask for private arbitration per the card agreement. Details all about this arbitration method is in the link in my signature below.
  3. Yes, you didn't send a copy of the granted MTC in with your Demand paper work when you opened that case?
  4. Doesn't seem like anything here would apply to these types of calls from Midland. I'm sure Midland agents are not using iPhones to place their calls. They are using traditional old school ATDS systems under any conservative definition of the term.
  5. Did you file the court order with the 22K case? This thing gets more messy by the minute.
  6. @Harry Seaward @Goody_Ouchless This is a case where Midland asked to settle for dismissal once they got the initial AAA bill and OP countered with dismissal with prejudice plus their costs and Midland agreed to that. It doesn't seem like following people into arbitration is a Midland policy change with this plus the other Midland dismissal this week. It might just be the decision of those couple attorneys only in the other cases.
  7. It doesn't work like that. The day they file their counterclaim in arbitration is the day counted for SOL. Their claims will have been filed within the SOL even if the time expires during the process.
  8. Sounds like you will have a nice outcome soon. These are some of the few FDCPA violations that still occur due to the automation process of JDBs where someone inputs incorrect information into the system and the system runs with it and no one can catch it until it is too late.
  9. That is irrelevant to the court rules of how long they have to respond to a motion. This is a key bit of information you should know before going to a hearing where you might be able to ask for your MTC to be granted as unopposed if they did not respond by the required time.
  10. Don't over think it or try to guess their reasons why they do this or that. Just go with the facts here. The facts are that they need your stipulation in order to dismiss and they clearly want to dismiss the case. This gives you a perfect opportunity to tell them you are willing to work with them on a dismissal with prejudice. Make the email very concise, simple and to the point. The worst case is they say no, and then you can choose to accept the dismissal without or to continue and force the MTC hearing and then try to settle again for what you want after MTC is granted. But I feel that the odds are in your favor to get the dismissal with prejudice.
  11. They are both technically supposed to prevent sticking the consumer with fees, it is just that AAA has a better worded rule on it while JAMS is worded in such a way that one arbitrator decided he was allowed to add fees. However, if the lottery had those kind of odds, no one would hesitate to buy a daily ticket for their virtually guaranteed win. But you are dealing with an OC and AAA is far cheaper and will rush to push the case through without discovery and possibly just a paper submission and no hearing. I would never want to take that risk with an OC. If it were me, I'm using JAMS every time it's in my contract.
  12. It's a stipulated dismissal, correct? They want you to sign it and send it back? I would email the attorney and say you received their stipulated agreement offer and that you would be willing to stipulate to a dismissal with prejudice. I'm not sure why everyone thinks this is over. It's just a settlement negotiation. You are free to tell them what your terms of stipulation are. But forget about this "removal from credit report" nonsense. I NEVER advocate for that, as a dismissal with prejudice can be used to handle that later and it just muddies the water at this point. You have them on the ropes. They have to get a stipulated agreement from you to dismiss because you answered and filed an MTC. They can not just drop it by themselves and this is why they are asking you to sign this. Counter.
  13. As I stated in @Brotherskeeper's linked post above, I think this new ruling has some good arguments that can be used to also apply to the "too expensive" or "equity" argument some attorneys are now trying to make against arbitration. The case above is not speaking directly of costs, but the same logic of "not able to add exclusions not written into the statute" should apply, IMO.
  14. Most people can't respond for next day advice. What did you end up doing? My philosophy is that asking for arbitration is never "too late" unless or until a judge tells you no.
  15. Good job. You got the hardest part of this behind you now. I would use JAMS rather than AAA, personally, if the card agreement gives you the choice. Go to JAMS' website and download the "Demand For Arbitration" form. This is basically the same as a "complaint" form you would file in court. The instructions on how to file are on this form (last time I checked it requires sending everything in duplicate to JAMS including the Card Agreement). I would include 2 copies of the court's granted MTC as well and I would make and include simple and short cover letter (only one copy) that states you are demanding a new consumer case via court order and that the enclosed contract between the parties states that the company will pay the consumer's filing fee and ask that JAMS bill the company for the consumer's portion of that fee. I would send it by certified mail for proof to the court if needed that you filed the timely. Also send 1 copy of everything you send JAMS (including the cover letter) to the attorney.
  16. I would check your court's rules to see how long they have to respond to a motion and also if you are required to set any hearing dates when you file a motion.
  17. I wouldn't do anything until you know for sure the arbitrator is going to reject the 22k claims from your current case. Once he does that, then I would immediately file a motion for sanctions in court and include a copy of the letter from AAA closing the case for their non participation. I would ask the judge to sanction them for the refusal to properly follow AAA rules and ask that the case be dismissed with prejudice. But again, you must make sure the 22k account is excluded from the current AAA case first.
  18. Anything you file in court you ALWAYS send to their attorney as well. There is a sample MTC in the link in my signature below, but if you search other TX cases here you may find a better one with TX case law included.
  19. If you have at least one claim you can file against Discover and know that a lawsuit is pending (via collection letters from an attorney's office), then I would agree with you on trying it in order to get the DE SOL. That is a good point. It's a pretty good shot to take in hopes that the arbitrator considers their counter claim for the debt as beyond SOL under DE.
  20. I see 3 problems: 1. The Discover card agreement does not have any exemption for small claims, so there is no need to file arbitraion before being sued. 2. Discover being an OC will not ignore your arbitration demand and sue you anyway, so as soon as you file you will have started the case. 3. I would use JAMS over AAA. AAA cost less and does not have an automatic Discovery phase and they are less likely to grant an in-person hearing and are more likely to speed the case through for a much cheaper amount.
  21. There is no normal in court cases. Did you serve a copy to their attorney?
  22. The government does not need to get a judgement to garnish and lien property. If they wrongly seized money that was no longer owed you need an attorney not a useless letter to your congressman. This thread is a prime example of why one should avoid government backed loans at all costs.
  23. It took a couple years to get your credit down this much, so expect a couple years to also get it back up. Reducing balances to $0 is the biggest thing to start. Every time you have a $0 instead of any positive amount showing for a balance owed on a collection account, it is a positive increase on your credit. There is nothing much you can do about the scattered late payment showing up short of finding any inaccuracies within that account listing somewhere and then disputing it in hopes that they just remove the whole thing.
  24. How did you send the disputes? You mention checking the status online. If you disputed this on the website, then they actually have 45 days to complete the investigation. Plus if I recall there is another 15 day grace period for some instances. So unless it has been over 60 days, you can't do much about it yet. Granted, it has been 4 or 5 years since I used this method heavily. The CRAs seem to not be set up to deal with MOV letters properly according to the FCRA. Just stating "it was verified electronically" does not satisfy the FCRA requirements of providing the name and address or phone number of the person who verified the information. They never include this. But on the other hand, it is a very technical violation and no attorney is going to waste time on it. I used this violation as part of arbitration cases against the CRAs who gladly agreed to settle almost immediately when all I asked for is TL deletion and no money. HOWEVER, I know it is now much harder to take the CRAs to arbitration so using the MOV is much less simple than it used to be. The CRAs will now most certainly force you to file a PTC in federal court before they will even entertain the idea of responding to the arbitration claims.