Pericles

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Everything posted by Pericles

  1. I didn't say that you did. My participation on this forum ends here.
  2. It's not clear what was raised or not. OP seems to recount some type of oral argument (for which there is no record) where these issues were argued. My reply was only an attempt to answer the specific question immediately quoted above that portion of my reply. OP will have to incorporate whatever can be gleaned (from that case) into the complete knowledge of was has transpired in OP's case, and combine that with whatever rules govern how the appeal is conducted. At first blush, it seems to be a loser on appeal. But I'm not familiar with the licensing statutes in WY, and their application to debt buyers vis-a-vis the filing of a lawsuit. If it is a problem, history should have some evidence. OP might do well to research fdcpa cases filed in the district.
  3. Which are the state statutes? The definitions are relevant. Unifund claims to be a debt collector on their website, but that disclosure is distinct from meeting a statutory definition. And there might be one standard in order to meet the definition of a "debt collector" for the purposes of doing certain types of activity within a state, and yet another standard to meet the definition of a "debt collector" for the purposes of the fdcpa. Although state statutes often mirror at least some language within the fdcpa. For the purposes of the fdcpa, post Henson, the relevant test to apply is the principal purpose test. There have been fdcpa decisions that have come down on both sides of this, when the test is applied to debt buyers. This case discusses the distinction between purchasing title to an entire account versus just purchasing the receivables. But that may not be exactly what is going on in your case.
  4. See CCP § 704.070. "Paid earnings that can be traced into deposit accounts or in the form of cash or its equivalent" But "earnings" (as defined in CCP § 706.011) means "compensation payable by an employer to an employee". I don't know if the section would apply to non-employees such as contractors or the ubiquitous "gig" type stuff that has replaced "wages" paid by an employer.
  5. Those are the fees charged by your bank for the processing of the levy legal documents. Your bank has likely frozen whatever funds are left in your account, or at least some multiple of the judgment amount. If some substantial amount is frozen, then you don't have much leverage to negotiate. Unless you can offer more than the amount that is frozen. If the levy is based on a judgment for a case that was decided on the merits, then it is unlikely that any arguments about the judgment amount will be considered. All you can argue at this point is why funds that your bank has frozen might be exempt from levy. From your link; If the funds in your checking account are earnings deposited within 30 days prior to the date of the levy, then 75% of that amount should be exempt. If the amount that they can levy is reduced, this may increase your leverage to negotiate a settlement of the remaining amount of the judgment.
  6. I'm pretty sure that the AAA's administrative determination is all that is required. I haven't seen any arbitration agreement that specifies application of the consumer rules. Since the business rules weren't expressly indicated, the question is for the AAA to administratively decide, at least at the filing stage. That sentence follows "We have not received the signed submission letter or $3,050 filing fees from the business.". My reading of the two sentences together is that they don't have the authority because the fees have not been paid.
  7. Interesting that the AAA did not invoke rule R-1(d) of the consumer arbitration rules, as they typically do in debt buyer cases (see rejection letter previously posted on the forum here). When the AAA invokes rule R-1(d), they tell everybody that they can just go to court instead (see below). In your letter, it seems that resubmission of the same claim to the AAA would be permitted. Maybe the business in your case does not have a "previously-filed consumer matter" in which they also did not pay the fees within the time provided.
  8. Happy Thanksgiving everybody!
  9. The steps to pursue a rule 1006 procedure to strike the appeal are as follows: 1. Once 20 days pass (since the date of service of the notice of appeal), if a complaint has not been filed, fill out the form “Notice of Praecipe to Enter Judgment of Non Pros”, and send it to the other side. 2. Wait ten more days. 3. If the ten days pass and the other side still have not sent you a complaint, file a “Praecipe for Non Pros”. service of notice of appeal —> wait 20 days —> send notice of praecipe —> wait 10 days —> file praecipe See page 7 of this document for further details. Read this case, and all cases cited within, for further information about the rule 1006 procedure.
  10. That seems like (not exactly, but functionally) making the determination based upon residency rather than "court" jurisdiction. There is some precedent for that mode of evaluation. Though consideration of some counterfactual ("would have been filed") is a rather tricky thing to do. There are a lot of possible worlds. Patent trolls and other forum shoppers typically go for "court" jurisdiction rather than residency. That british last-week guy on hbo brought this point to light just a few days ago (SLAPP Suits @Time:12:22). Neither the last-week guy nor the coal guy were residents of west virginia, yet there the jurisdiction was established and remained for 2+ years. Maybe it is just somewhat difficult to fit arbitration and court into the same "lawsuit" framework. Maybe alternatives shouldn't be lumped together for definitional purposes. As you say, any arbitrator or other can pretty much decide any way or other about this question, and non-parties will likely not ever know how any of it was decided. Though I really can't imagine that if a filing party filed in jam's district of columbia office, that any arbitrator would use that filing as a basis for determining the sol to be 3 years. But I can imagine an arbitrator applying delaware law over a possible counterfactual.
  11. AAA case filings, if not filed online, are mailed to new jersey. Jams has regional offices in selected states. Is your interpretation of the language in the arbitration agreement that the state law (for sol) is determined by the state in which the arbitration administrator's physical location is present, assuming that such location accepted the initial filing? So, the sol, for the example case as described in this thread, would be 4 years if the initial demand filing was mailed to a jams regional office in california?
  12. Assume that arbitration counterclaims are a "lawsuit". Further assume that all of such claims originate in arbitration in the first instance, without any prior court involvement. What state law other than Delaware could possibly apply? How would that state jurisdiction obtain?
  13. Recent discover agreements have the following language; OP mentioned in another thread that discover initiated the jams case after OP sent correspondence to their attorney with a request for arbitration. All of this apparently happened before any lawsuit was filed in OP's home state. If this is correct, there are no competing interests (with regard to sol) of any other state.
  14. It appears that in colorado the small claims division generally doesn't allow representation. See c.r.s. rule 509 & 520. Chapter 26 - The Colorado Rules of Procedure for Small Claims Courts If these are the applicable rules, they probably didn't file the complaint in the small claims division. However, if pra is using an in-house attorney, the rules may allow it. Prior forum posts by active members from colorado (e.g. here) seem to indicate that these sorts of cases are filed in county court but not in the small claims division.
  15. The citi carve-out (cut out) language is in the first post to this thread. The citi carve-out language is vastly different than the non-mutual limitation language in synchrony agreements. The citi language also sometimes has delegation, whereas the synchrony language does not. A court really shouldn't have any trouble with interpretation of the synchrony language, though it has happened quite a bit. As others have said, the best way to argue that the synchrony language is not any limitation whatsoever on the "you" party [as defined], is to restate the entirety of the language but with all of the pronouns replaced with the concrete party names to which those pronouns refer in the instant case.
  16. No, you're definitely on to something. It's correct that the court always decides whether an arbitration agreement exists. So, it's possible that even if the governing citi agreement has the delegation language quoted above, that the court could find that the cut out language means that there is no agreement to arbitrate. But if the court does that, has it decided a claim regarding the application or interpretation of the arbitration provision — a claim of the sort which the delegation provision states is subject to arbitration? This is an arguable point which is highly dependent on the delegation language. Poor Henry Schein lost that argument. If you remember, scotus stopped short of actually deciding whether the contract delegated the arbitrability question to an arbitrator; “The Court of Appeals did not decide that issue…. On remand, the Court of Appeals may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved.” So, what happened after scotus remanded the case back to the 5th cir. coa to address that issue? On August 14 the Fifth Circuit in Henry Schein, Inc. v. Archer & White Sales, No. 16-41674, held that the parties did not clearly delegate arbitrability; Some questions to consider; Is the citi delegation language applicable to the cut out, and is the citi delegation language any more "clear and unmistakable" than the delegation language in Schein? Remember, the Schein agreement had no express delegation language, it relied on implied delegation through incorporation of the AAA rules. On remand from scotus, the 5th cir. coa said that "the parties could have unambiguously delegated this question, but they did not". Does the citi delegation language do any better? Making this sort of argument in a lower (small claims) state court is bound to be an uphill climb regardless.
  17. Lomeli v. Midland Funding, LLC., No. 5:19-CV-01141-LHK (N.D. Cal. Sept. 26, 2019) In the aftermath of Meza, there have been an increased number of fdcpa cases filed immediately upon any perceived deficiency in the "declaration in lieu of testimony" document filed in the cal. state court action. Usually, the defendant in the cal. state court action is represented, and the same counsel files the fdcpa case in fed. court. About half have sought class certification. Lomeli is representative of the types of fdcpa cases that have been filed. Lomeli filed an fdcpa suit arising out of an affidavit filed by h&h in midland's collection lawsuit in cal. state court because the affiant's address was listed as minnesota. Probably because Lomeli sought class certification, and to avoid any possible waiver of arbitration, the fdcpa defendants did not move to dismiss the claims or seek summary judgment on the merits under some theory that the availability of a state law remedy forecloses a claim under the fdcpa. Rather, both midland and h&h successfully moved to compel arbitration of Lomeli's claims on an individual basis. During discovery, the court ordered midland to produce a full and unredacted copy of the forward flow agreement. Midland produced the agreement but moved to seal, which was denied w/o pred. A renewed motion to seal filed last week is still pending.
  18. Did the court find that Lamb had filed a "satisfaction of judgment" or similar document with the court back in 2012? Or did the court just add new entries based upon your recent inquiries or by something that midland's current counsel (Lloyd & McDaniel) has recently filed ?
  19. The U.S. Court of Appeals for the Ninth Circuit reversed and remanded a district court ruling confirming final award from arbitration service JAMS and post-arbitration fees between energy drink company Monster Energy Co. and City Beverages LLC, which does business as Olympic Eagle Distributing. To determine if the arbitrator needed to disclose his ownership role in JAMS, the court first evaluated whether his interest in JAMS was “sufficiently substantial,” and if JAMS and Monster were connected in “nontrivial business dealings” (JAMS had administered 97 arbitrations for Monster over the past five years), according to the opinion. Since the arbitrator, retired Judge John Kennedy Jr., reaps a percentage of the profits from all JAMS arbitrations, he was uniquely situated compared to nonowner neutrals. “This ownership interest — which greatly exceeds the general economic interest that all JAMS neutrals naturally have in the organization — is therefore substantial,” the court ruled. The majority decision, however, notes the 90-day statute of limitations to vacate an arbitration award. Michael Madigan, of Brandt F. Erwin, Madigan Dahl & Harlan P.A. in Minneapolis, who wrote an amicus brief on behalf of the National Beer Wholesalers Association, said the integrity in the arbitration process requires the disclosure of pertinent relationships, especially with JAMS, a for-profit ADR provider where about one-third of neutrals are owners. Madigan said it’s theoretically possible that other JAMS awards could be challenged if there was similarly not a disclosure of ownership interest, as long as they fall within that three-month window to vacate arbitration. reuters | law.com - The Recorder
  20. When did they say copies of the paperwork would be sent to you? Who is the "they" that will be sending it?
  21. Is the lawsuit that you responded to back in 2010 the very same lawsuit that is the basis for the garnishment? If so, you should try to get a printout of the docket of the case, which should list all of the events. There is a chance that because it is old that the court records have been purged but you can at least check. When you responded to the lawsuit back in 2010 and arranged a payment plan with Lamb, you may have signed a stipulated judgment (or confession of judgment) that could be immediately turned into a garnishment should you not stay current with the payment agreement. It could also be turned into a garnishment if Midland decided that there was any deficiency in whatever you paid. If you're able to get a docket of the case, also get copies of whatever documents relate to any judgment and garnishment filings. At least one other forum member has reported this sort of problem with Lamb before, see here. Lamb was a defendant in a successful class action in 2015, and around a dozen or so fdcpa cases since then, including cases that are still active with filings this year. If he really has closed down his law firm, perhaps you can inquire with his legal malpractice attorney who represents him in all of those fdcpa cases; Robert L. Henry, III (Barber Law Firm PLLC) out of Little Rock. You may be able to file a request for hearing about the garnishment in the court case. But after "Hosea"? gets whatever promised documents to you about the garnishment, and you get as much information from the court that you can. Because it is also possible that the FIA account has nothing to do with the Lamb settlement, and that it may have been some other account that was part of your Debtscape consolidation plan. But if that is the case, you would have been sued twice in 2010, which surely you'd remember.
  22. We agree. Based upon the way appeals work in PA, it's absurd to argue about discretion at all in the context of OP's posts to that thread. I certainly wasn't arguing about it. I said it was irrelevant in the thread. I thought it was a disservice and a distraction to the OP of that thread for anyone to even bring it up. Likewise about declaration admissions at trial and what jurisdictions other than PA do (or don't) essentially allow "declaration judgments" at trial.
  23. As you've pointed out before, it doesn't happen very often; What else doesn't happen very often in arizona is a debt buyer plaintiff going to trial without at least moving for a live [telephone] witness to lay the foundation to introduce the documents into evidence, and to be subject to cross-examination. If the defendant is represented, no telephone witness means the trial is over and the plaintiff has lost. Some other member here suggests that a jp is making a horrible decision, or is misunderstanding the rules of evidence, if she fails to admit affidavit(s) at trial without a live [telephone] witness, even assuming corresponding objections have been raised.
  24. Never mind. I don't want to muck up OP's thread. I concede the point. If you really want to pursue the discussion further, do so in this thread. Select quote from the last post to that thread; "a trial court would still be acting within its discretion if it required additional foundation." So, when you say "judges have made horrible rulings ... Usually it's stuff like judges misunderstanding the rules of evidence", it is important to note that the admission of evidence is, to a very large extent, within the sound discretion of the trial court. And if a plaintiff's summary motion was denied and the case made it to trial, it is unlikely that the trial court would be persuaded if the plaintiff presented the very same "documents only" case that failed in the summary judgment motion. Perhaps you're aware of a lot of "no telephone witness" debt buyer trials in arizona where the plaintiff prevailed, either old or "quite new". Edit: A note to OP: none of this post matters for your appeal. Since the appeal is de novo, the trial court's discretion is irrelevant. I'm sorry if this post is the cause of any confusion. Please disregard this post in its entirety, and I will not post again.
  25. What do you mean exactly? Even in arizona, if a case makes it to trial, the debt buyer attorney can't introduce evidence by herself. They need to have at least their custodian appear, even if by telephone, in order to introduce the evidence.