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hades01 last won the day on August 25 2017

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  1. All the agreements say that, but if you look up JAMS' case history you'll find that in all consumer cases they assign 100% of the costs to the non-consumer party. It's just not something they're going to touch, presumably after the NAF fiasco. There's further protection provided by California Code, specifically CCP 1284.3, which states, among other things: Limiting our possible liability from 'extra' fees if things went poorly for us was one of the reasons I went with arbitration.
  2. There's nothing to do until you're actually served. That starts the clock on when you have to respond. Take your time, don't panic, read through other California threads here to see how their cases progressed to get a sense of things.
  3. Since the OP is in Florida he should be aware that if he is sued he'd have to file the motion to compel arbitration in lieu of an answer. Just filing an answer is enough to waive the right to arbitration in Florida.
  4. It depends on the disposition of the court case, whether it's dismissed with or without prejudice, and whatever agreement you can come to with them (if any). A dismissal with prejudice is ideal, meaning they can never sue again for that debt. Even if it's dismissed without prejudice it's unlikely they'll sue you again, since they'll know what you're going to do. As long as you don't do anything to refresh the statute of limitations, once that expires that's the end of it as far as legal means of recovery are concerned. Then 7.5 years after your default, assuming you couldn't get them to remove the tradeline from your credit report as part of an agreement, it'll disappear from your credit report and that's the end. As for whether or not it'll be resold, it's hard to say. For one thing, a lot of these debts are never actually sold in the first place, but merely 'assigned' to a collection agency. You can offer or be offered a settlement at any time, even if you take it to court or arbitration and completely lose. A judgement is just a tool to collect money; depending on where you are and what kind of income you have it can be difficult or impossible to garnish wages. If you don't keep any money in a bank account they can't get that either. If you have nothing titled in your name, they can't put a lien on anything. So a judgement isn't a guaranteed thing, and even if you do have something they can go after, that's still more work on their part. You wouldn't ask the arbitrator to settle; a settlement is a bilateral agreement between you and your creditor.
  5. > Or are you saying that the terms of the original contract/application apply to Cavalry as well since they bought the account? That is correct. You can find the relevant contract here: https://www.consumerfinance.gov/credit-cards/agreements/ You're going to want the most recent contract dated before your default. So if the last payment was made May 2013, you'll want a contract from April 2013 or earlier. Use your annual free credit report find out if you don't remember. There's the 'master thread' about all things arbitration. You're going to have to do some reading here. Also check with your local legal aid organization, and use them to doublecheck your paperwork before filing to make sure it conforms to local rules. Pay attention to how long you have to file your answer (it'll say this in the summons you were served with).
  6. Your options are: 1) Fight it in court. Since they already provided the bill of sale, the most common method by which to fight JDB suits won't work for you. This will probably not end well, especially in GA. 2) Private, Contractual Arbitration. Look up your credit card contract and check the arbitration provision. JAMS is best, but AAA will do. Collectors can't recover their fees in arbitration, which are considerable. Even if they have you dead to rights on the evidence, they often won't follow you into arbitration simply because it's not economical. 3) Offer/accept a settlement offer. You're not in a great position to settle right now, since they're suing and you haven't done anything to telegraph that this is going to be an expensive fight for them. Yes, if you offer to settle you should always offer to settle for less than the amount they want. Otherwise it's really just you paying your bill and isn't really a 'settlement' at all. As Harry said, arbitration is almost certainly your best bet, especially in a creditor friendly state like GA. Even if a settlement is your goal, you'll get a better offer by pushing it into arbitration first and depending on the amount they may not even follow you.
  7. I'm beginning to think this might be an identity theft issue. 1) we've never received any communication about a 16k debt from WF; there's also nothing on her credit report about it. 2) She's being sued under her maiden name, whereas the other account was under her married name, and 3) the numbers don't match her account anyway. Anyone have any experience with how to go about this, considering we really have nothing to go on? We haven't been served yet, but I can see online that it's just a one page complaint so I already know there won't be any attached statements. Should we call WF or their attorney and explain our concerns?
  8. Hello everyone, About a year ago we got great help here with a lawsuit and it looks like we're in the thick of it again with another creditor. My relative hasn't been served yet, but one of those settlement services sent us a notice with the case number and sure enough there's another lawsuit in the system. This is a bit different than last time though. I can only see half the pages on the online system, but it looks like my relative is being sued by Wells Fargo for 16k under her maiden name (which she hasn't used for 30+ years, so not sure what's up with that). Here's the rub though, there's no way she owes 16k. I remember getting the debt collection notices a couple years ago and they were for 2-3k. I checked her credit report and sure enough, Wells Fargo is on there with a reported balance of ~2k, and a charge off amount of 3k. Her credit limit was only 7k. The default was reported back in 2014 so it's still under the SOL, but there's no way 2k, or even 3k, turned into 16k in 3 years. Has anyone seen anything like this before?
  9. I really don't want to derail this fellow's thread with a bunch of theory. Unless you can show me an example of a consumer debt case where the Defendant filed the MTD/alternative stay and the Court dismissed rather than stayed and ordered arbitration (particularly if the arbitration election was made after the lawsuit was filed), I'm going to stand by my statement that it simply doesn't happen, regardless of whether or not it theoretically, possibly, maybe, can happen. So why complicate something needlessly? The people coming here for help generally aren't legal eagles; simpler is generally better.
  10. I understand the logic, but has anyone ever gotten their case dismissed outright? The Supreme Court ruling only requires that the Court stay the case and I've never seen an example where the judge went beyond that and dismissed outright. Ergo, it just adds complexity for no benefit. The only scenario where I can imagine a judge would dismiss outright would be if the defendant had elected arbitration prior to the lawsuit being filed, but that's a pretty rare situation since people who come here are virtually always doing so after the lawsuit process begins. Bottom line: File the answer (unless you're in Florida).
  11. You can try to do some fanciness where you file the motion in lieu of an answer, but my advice is to not do this; it's a recipe for calamity. Florida is the only place I know of where filing an answer, by itself, waives your right to arbitration, although obviously you should triple check this with your state. Anywhere else I would use the court's answer form and file a general denial. You can use 'lack of jurisdiction, as Defendant has elected contractual arbitration pursuant to the binding Contract between Defendant and Plaintiff' as an affirmative defense, or something to that effect. Just make sure you send the arbitration election letter (cmrrr) first. Then after (or along with) your answer, file the motion to compel arbitration, including your election letter and contract as exhibits.
  12. Well, "any" time isn't quite accurate. I covered the 'excessive litigation' exception earlier, but you can certainly elect arbitration after the lawsuit is filed. The general approach is to send their attorney a letter saying that you're electing arbitration with JAMS/AAA as the first step. They'll never just say 'oh, ok, let's do arb', so you'll then have to file a motion to compel with the court to force them to take their case to AAA/JAMS. Whether or not you initiate is typically up to the Judge and the wording of the order resulting from the motion to compel. Keep emphasizing JAMS and "contractual arbitration" throughout, not just 'arbitration' to prevent any court arb nonsense. This is the master resource thread for arbitration, and has samples of everything you need. Be aware that you may need to reformat things to adhere to your jurisdiction's rules, but the legal language is all tried and tested.
  13. Arbitration has court-like procedures, but the rules are generally more relaxed than court. That's part of the appeal for some. For specifics, you'd have to refer to the particular arbitrator's rules. JAMS has their rules online. It would probably also be wise to look through the JAMS case history to see if your plaintiff has ever followed someone into JAMS (https://www.jamsadr.com/consumercases/). That's what sealed the deal for me; I saw that our plaintiff had never followed a consumer into JAMS for a credit card debt. Some plaintiffs will aggressively follow you into JAMS though, like Discover or American Express. As far as litigating as part of raising their costs goes, I'm not sure how effective that is in a courtroom setting where they'll be able to saddle you with the costs if they win. Obviously if they know their case is weak that might motivate them to walk away, but if they're confident (rightly or wrongly) in their case I don't see why it would necessarily be a deterrent. That's a big part of the magic of arbitration; in virtually all cases the non-consumer party pays all but $250 (for JAMS) of the costs. Win or lose the plaintiff is out that arb fee money.
  14. Just a tidbit, generally 'excessive litigation' waives your right to contractual arbitration (JAMS, in your case). Unfortunately, 'excessive litigation' is not well defined and it varies by jurisdiction. So you need to decide early whether you want to go for JAMS arb or court. But yes, you are right in that it doesn't make sense to claim you have a right to contractual arbitration if you're also claiming the contract they're providing is not, in fact, valid. If they're able to prove they have a contract you could then try to invoke the arbitration clause but it's up in the air at that point whether you get it. I was in a similar conundrum when we went for arb, because I wasn't keen on acknowledging that we did in fact have a valid contract rather than forcing the plaintiff to prove it. But in our case, it was an OC that I knew would have all the documentation to prove their case anyway so I figured there wasn't much to be lost there. Arbitration, in general, is basically a giant bluff that they won't pay their way through the process. That makes it a great strategy for people who don't have a leg to stand on in terms of defending their case conventionally. If you have a high degree of confidence that you can defend yourself based on the evidence and/or procedural rules, then court is a perfectly reasonable option.
  15. There are several different varieties of 'arbitration'. Unless you have a contract that specifies an arbitration administrator (JAMS or AAA), generally arbitration will mean court arbitration, which is very cheap for the plaintiff and basically a shoe-in for the debt collector to get what they want. You do not want this kind of arbitration. The numbers you're quoting look like JAMS' numbers for opening a case ($1250 to open, and max $250 for the consumer party), but that doesn't apply to court arb. In any case, arbitration will be handled locally. Third party arbitrators have their own rules, which are available online or, at least with JAMS, will be sent to you when a case is opened. I believe Anon Amos has experience with a judge and plaintiff trying to push his case into arbitration against his will. The Courts love arb because it gets stuff off their plate, so if you go the traditional court route it's probably wise to be prepared to fight an attempt to push you into court arb.
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