RelayerPA

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About RelayerPA

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  1. This is the wording I'll probably use on my affidavit to be notarized. I don't know if it's worded a little too "legalese", or if it needs to be, but I'm under the impression that this is the same as a sworn testimony, and using legal vernacular won't hurt anything. I also don't know if I should reference both accounts in a single affidavit or create a single affidavit for each item. The latter will be easy to fix. I also reference only Exhibit A and C because those are the exhibit numbers I used for each cardholder agreement in the MTC. The Affiant is the Defendant in case number XXXX-XX-XXXX-XXXX in Pennsylvania Municipal Court XXX-XX-XXX. The Plaintiff in the case states a claim for two separate credit card accounts, yet has not provided material proof needed to assert ownership and terms for either account. Therefore, the Defendant felt obligated to find the proof on his own in hopes to prepare a proper defense. The accounts are individually referenced as belonging to Synchrony Bank and Citibank, N.A. and are referenced in the complaint as "FAN 1" and "FAN 2" respectively. The Defendant utilized the Consumer Financial Protection Bureau (https://www.consumerfinance.gov/credit-cards/agreements/), an official website of the United States Government, which archives cardholder agreements for credit card accounts provided by credit card companies. Attached to this Affidavit are the following: Exhibit A: Cardholder Agreement for FAN 1 Exhibit C: Cardholder Agreement for FAN 2 The Defendant attests that the attached Cardholder Agreements are true and correct copies to the best of his knowledge.
  2. I have attached an abridged copy of the MTC I plan on filing. It does not contain the header and footer information. Only the meat of the MTC is included to verify I have worded it soundly as per your suggestion. I also attached the two cardholder agreements I am basing the MTC on in case they may be enlightening. Thanks! creditcardagreement_3696.pdfcreditcardagreement_3696.pdfcreditcardagreement_3696.pdf Sample MTC for JDB.pdf creditcardagreement_5023.pdf
  3. OK. I have no problems revealing the accounts in the plaintiff's claim now. One is for Lowes, the other is for Home Depot. I found both cardholder agreements. Even though there is a "small claims exemption" in the cardholder agreement, I believe that only pertains to the OC. I found this particular clause in the arbitration portion of the agreement for Home Depot which specifically addresses debt collections: "What about debt collections? We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt." That final phrase, "including in a proceeding to collect a debt", sounds like a ticket to compel arbitration against a JDB in this case. The Lowes card agreement contains the phrase, "However, we will not require you to arbitrate... any individual case in small claims court.", which I believe still allows me to request arbitration.
  4. I've been trying to find case law for collections. I realize that PA Municipal Court has the loosest requirements for evidence in cases, however, shouldn't they be bound by case law somehow if case law is presented. My question is, what case law is valid for a PA Municipal Court? If I remembered anything from civics class, I'll assume that any and all case law from other PA Municipal Courts (including the Philadelphia and Pittsburgh local courts), case law from any PA Common Pleas court, case law from PA Supreme Court, case law from any U.S. District Court 3, and finally, SCOTUS, are suitable sources for case law. Also, as for Rules of Civil Procedure, my county lists their rules a by number of the same that are at the state level. I'm assuming the few that are addressed locally are those in which the county modified for themselves, and any state level rule which the county has not annexed for their own purpose still binds PA Municipal Courts in their entirety. That being said... I have attached a copy of a court brief that cites case law from a Common Pleas court in PA for documents supporting a collector's claim, showing an unbroken chain of title, along with case law from another Common Pleas court that the plaintiff must provide notice of what they plan to use as proof for their claim so the Defendant can properly prepare a defense. In light of that, in my case, I was only provided with a page of account numbers and total dollar amount sought. There were no other details provided by the plaintiff. The court brief attached is from a court case that was found in favor of the Plaintiff in Municipal Court, then filed by the Defendant with this court brief as a Preliminary Objection for the appeal. The original plaintiff, Midland Funding did not respond to the appeal, and thus after two years the case was dismissed with prejudice. Collections Case Appeal.pdf
  5. Citi lists both JAMS and AAA. As for "individual claim" interpretation, I read somewhere that ambiguity in an arbitration clause would actually favor toward allowing for arbitration because the agreement contains an arbitration clause.
  6. It took me a while to figure out what you meant by that, but I understand that I should use whichever agreement does not have the "small claims exception", am I right? Assuming yes to that, I found this text in the agreement for one of the accounts: "Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim." This appears to be a small claims exemption. However, I'm wondering what "advances only an individual claim" means. Does it mean that the claim in any form is against an individual defendant, or does it mean that the claim must be by itself, and not tied with other claims in a suit? If the latter, then it seems the small claims exception does not apply with this particular case. I'm guessing I'm screwed for arbitration on this one, but this particular account is one where I can find no record of having based on the account number they provided and that I cannot find any evidence on any of my three credit reports that even have a matching account number fragment. I may end up having to simply dispute this in its entirety in court. Now, the agreement for the other account in the same lawsuit states this: "However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate." While it may look like a small claims exception, the phrase "we will not require you to arbitrate any individual case in small claims court", appears to give me an option to do so. They simply won't "require" it, but it doesn't seem to strip me of any rights to request arbitration. Again, the definition of "individual claim" remains in question. As I see it, I will probably put the JDB on notice by sending them a notarized copy of the agreement for the latter account "which I believe to be true and correct" and tell them I elect arbitration per the terms of the agreement. I did this before with the same JDB and they withdrew their case, having yet to bring it up again. In this case, they'll either be forced to: prove arbitration does not apply to that account amend the case to remove the arbitrable account withdraw the case completely or, ignore the arbitration request and continue to fight it in court, making the entire case ripe for appeal if the magistrate does not honor the arbitration terms of the agreement.
  7. This is my only post on the lawsuit. As for the legality of more than one account per lawsuit, one of the court's forms for the submission of confidential information, like account numbers, allows for multiple accounts listed per page. The form's existence as a court form leads anybody to believe that it's legal.
  8. The second account referenced in the JDB's complaint is an account with Citibank. I have searched through old scanned and archived CC statements, looked at all three credit reports, and I cannot find any account with the account number they reference in the complaint. There's a chance it could be my ex's account when she lived here only a couple years back, but we never had joint CC accounts. I do have a CITI account, which I suppose could be reported as Citibank. But I just happen to come across my original welcome letter for that account, which includes its account agreement, and the number on this account is nowhere near what's on the complaint. It looks like I should still compel arbitration for the first account on the complaint, but then directly dispute their evidence for the second account because numbers do not match any accounts in the resources a "least sophisticated consumer" like me have at my disposal to verify the account.
  9. I plan on taking a route that may even prevent scorched earth tactics, even though I am preparing for the contingency. I retrieved the Cardholder Agreement for one of the accounts in the lawsuit. It has an arbitration clause that states: "Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or Lowe’s, on the other hand, if the dispute or claim arises from or relates to your Account. However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate." That clause will not make them require me (or the JDB) to arbitrate, but it allows me to force them to arbitrate, even if there is pending litigation. I will send the JDB a copy of this agreement and my formal request (demand, as per the terms of the agreement) to move this case to arbitration.
  10. Got the confidential information for the case from the Magistrate office. All it is is a reference to a few account numbers (FAN). It does not list which account number goes to which account OC mentioned in the complaint. There are several accounts listed on the original summons.
  11. I understand your point, but an appeal on either side is de novo. If I would be denied arbitration, yet win the case on other points, an appeal by the plaintiff would still let me bring up arbitration at the higher court as if I filed the appeal myself.
  12. Thank you for the wording. That leaves just one other caveat I feel I need to address. In a previous case, I printed out the most recent copy of the OC's agreement. The Magistrate also decided to rule that since the effective date on the agreement was newer than the earliest statement date the plaintiff had a copy of, that that agreement doesn't apply. I argued that even the agreement says something along the lines that newer agreements supersede older copies of the agreement, unless I (as the card holder) responded in writing within 30 days of the new cardholder agreement that I do not wish to be bound by it. In other words, since I did not do so, then I expected to be bound by each new update of such an agreement if I don't respond in writing. Shouldn't the same go for the JDB when they receive an account through assignment, too? That takes moxy, but I understand your reasoning for doing so. After all, it's the Plaintiff's burden of proof, not the defendant's. And if the magistrate fails to honor my rights, especially in light of my notarized affidavit, I have a very good chance to successfully appeal any other form of judgement made by the magistrate. Thank you for the extra insight. I feel a bit more confident to success that I can get this moved to arbitration.
  13. Then it comes down to challenging the plaintiff's right to sue me, along with challenging the accuracy of their claims. This goes for either an arbitration setting or even if the magistrate ignores the MTC and continues the case. One of the more common assertions in forums such as this is that JDB records can be sloppy due to how they are handled, forward-flow agreements, and all that, and may very well contain errors that bring their claims into question AND that it doesn't hurt to try and discredit such JDB claims. As I said at the beginning of this post, I don't mind spending time coming up with multiple strategies to fight this... even if I find I don't use many of those strategies in court. I become more informed when I research these kind of challenges. However, I'd rather be more, as opposed to be less, prepared for any turn of events in court. I've learned so far in this thread that I can do my MTC Arbitration differently than I did before, and have more confidence that the MTC will be honored, or at least I have faith that I can successfully appeal a judgement that may be handed down if the magistrate chooses to set it aside.
  14. Magistrate court rules are de novo appeals. I only asked for details about interlocutory appeals you mentioned just in case I missed anything. Plus, this dialog helps me figure things out AND hopefully will help others in the future having similar cases and search through these forums.
  15. If I understand what you're saying, in other words, if I take steps to find (from legally designated sources) published copies of agreements for the OC(s) the Plaintiff lists in their complaint, and have an affidavit notarized that TO THE BEST OF MY KNOWLEDGE, this is what I BELIEVE the Plaintiff is basing their claims, rights, and ownership of the debt. In effect, although I may be doing a bit of the work that could benefit the Plaintiff by producing such an agreement, it still would prevent the magistrate from using "ascension" to consider that I acknowledge the debt because I brought a copy of the agreement with me. But then, it would then require the Plaintiff to address the agreement and either acknowledge it's true (giving me a right to MTC arbitration based on the terms in the agreement), or deny it (giving me an argument against their standing to even sue me). And if the magistrate STILL uses ascension, I will have grounds for an appeal.