hades01

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Everything posted by hades01

  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 re
  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 readin
  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 set
  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
  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,
  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
  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
  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. J
  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
  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
  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 poin
  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 ru
  16. Heh, I had the same experience with JAMS. They found an attorney with the same name as the opposing counsel in our case, but on the opposite side of the country and kept sending things to the wrong person. Then they kept 'forgetting' that we'd submitted a declaration stating that we qualified for the California fee waiver and trying to bill us. So, yea, really have to keep on top of those people.
  17. Omg. This is one of the few disadvantages to this site: People starting unrelated, or quasi-related conversations in peoples' threads. Almost nothing in this thread is actionable advice and it's just going to confuse the OP more. To the OP: You might want to watch this fellow's videos: https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/ I haven't watched them but I saw someone else say they were a good overview of the general lawsuit process, but most of it would be relevant if you go the court, as opposed to the arbitration, ro
  18. I believe this could just be considered a MTC, per your motion's caption, and not a MTD, despite the long form header. These are the kinds of potholes that make the 'mtc in lieu of an answer' so dangerous. The court clerk isn't going to read your motion; they're just going to read the caption and enter it as such. Especially if you don't intend to file an Answer, I would at the very least use the full header as your caption title. You should probably put that on pleading paper (28 line version) if you weren't already aware. There are free Word templates online. Don't worry about lini
  19. This varies by jurisdiction. Some, like Florida, you cannot file an answer or you waive your right to arbitration. I believe it has to be a demurrer or a motion to dismiss to actually stop the clock on the time you have to respond to the complaint. I would contact a local legal aid organization and get some SC-specific advice, unless someone here knows SC specifically. This exact issue nearly torpedoed our case, but the clerk counted our MTC as a 'first appearance', which saved us from a default even though MTCs apparently aren't considered 'responsive pleadings', iirc the lingo the cl
  20. I'm not sure I see the logic of that, but my experience with the fee waiver was very basic. I would always try to get the full waiver if possible, especially since the appearance fee here is stupidly expensive. The court should give you the benefit of the doubt when filing paperwork while your fee waiver application is being processed. But if the waiver is denied you cannot mess around. If you fail to pay or appeal, the court will act as if you didn't file anything at all, which will result in a default judgment. Ran into a guy that this happened to when I was at a legal aid clinic. At t
  21. Assuming you're in California: "California Rules of Court 3.110(b) Service of complaint The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint." You can't ignore it and hope the court figures it out though, you're still going to have to respond in some manner. A motion to dismiss or may
  22. There are different ways to qualify for the fee waiver. If you go the income route then there's some machinery that runs in the background and the decision can take some time. If you qualify through a public assistance program (like Medical), they should be able to grant it immediately, presumably since your eligibility was already verified for the other program. At least they were in our case. By immediately, I mean it literally--I gave the clerk the form, she approved it right there, and printed off some copies for me for free.
  23. @BV80 Thanks for looking that up. @fisthardcheese Yea that's a bummer. Courts are so eager to dump cases as quickly as possible, even if it means they might have to deal with it again later apparently. Oh, well, I'll look into trying to recover some costs as a middle finger gesture. Because really, screw them.
  24. Do you think 'Service of process' includes mailing costs? There's also a line on the Memorandum of Costs form for 'Attachment expenses'--think I could claim a few dollars for the photocopies I attached to the MTC? Do I need to attach receipts to this?
  25. Your contract has JAMS? Sweet, it's hard to imagine they'd follow you there over $1500. Triple check you have the right contract and the language though. Does it say either party can elect arbitration and that election of arbitration prevents either party from further litigation, or something to that effect? Sometimes there are little clauses that let them wiggle out of the specific venue. But there's no need to get ahead of yourself. You got time. You still have to respond to the summons. Exactly how you do this depends on the state and I don't know how Colorado works so I don't w