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Everything posted by BackFromTheDebt

  1. That is true. If you sue over a violation, there should be at least some indication it is a real violation. Even a borderline violation is good. Things can really blow up in your face if you don't handle the courts properly. I had that happen to the tune of between $1000 and $2000 once, when the judge didn't like the way I was handling a case and threw in sanctions. We all know about a certain fellow who wound up with over $60,000 in sanctions against him because he got stupid and cocky.
  2. The law is not completely settled on whether filing a court case after election of arbitration is an FDCPA violation or not. True, there is no case law backing it up. OTOH, I am not aware of any case law saying it is NOT a violation. If there is any, please let me know. At least there wasn't in the old days when I used to use this strategy years ago and it worked well. If there are bona fide violations, and @pulpfiction0 has been aggressively suing, most debt collectors will want to shy away. Web Recon even provides lists to its members of people to avoid. I remember, there was a law firm that had lost to me twice. At one point they got third case against me. They contacted me. I called them up and reminded them of who I was. They dropped that account like a hot potato. The strategy of sue-a-lot is riskier these days, because debt collectors are a lot more careful. In the old days, there were ALWAYS violations, and often TONS of violations, by the time any case got to court. But those were the old days. Would an election of arbitration in a DV letter be sufficient for Midland to forego suing? Maybe, maybe not. Would it hurt to try? I don't think so. I agree with sending a notice along with the
  3. How much do you want to pay? If the answer is $0, go the arbitration route. None of us had legal experience before getting sued. We learned arbitration and won. Now we can teach you how to win without having to become a legal eagle, and without you having to reinvent the wheel. If the answer is more than $0, send them a letter that you are electing arbitration, but would be willing to settle for $X. If they accept, get documents drawn out and pay. If they make a counter offer, either pay it or fight it. If they ignore you and sue, then you pretty much have to go the arbitration route.
  4. Your help by the clerks is one side of the coin of small town Arkansas law. The other side may not be as good for you. It isn’t as bad as when there was only one law school in the state, but the legal community in Arkansas is very tight knit. My father taught law in Arkansas until he died a few decades back. One day my mother stopped to pick up the mail, and there were condolences from Ol’ Bill, Ol’ Steve, and Ol’ Dave. Except Ol’Bill was governor, Ol’Steve was AG and Ol’Dave was Chief Justice of the Arkansas Supreme Court. If you don’t know who Ol’ Bill was you aren’t really in Arkansas. What that means is pretty much every lawyer in that area knows each other. Don’t be surprised if the opposing attorney went golfing with the judge in your case this weekend, or maybe next weekend. Don’t be surprised if they have lunch together the day of your hearing. Just saying, small town courts are not always friendly to the pro se defendant. Or, it could turn out the judge, and everyone on the judge’s staff are all friends of yours. Maybe even people you know from school days or church. It’s a double edged sword so be on the watch.
  5. Every state, and sometimes every county within a state, has slightly different procedures for filing. That is, in some places you file a motion and the court schedules a hearing. In every county in my state except mine the person filing the motion schedules the hearing. You need to look up the Arkansas rules of civil procedure on the internet. In addition, check the web site for your county courthouse. In some cases the clerks can help you with procedural issues but NEVER legal issues. In some courts the clerks are very helpful. In others they are useless. Long story short, you need to do your homework on this one.
  6. Buying some time by waiting until almost the 30 days, then demanding validation, is a good idea. If you do it that way, it will probably be at least 2 months before you are sued. Maybe even a little longer, but don't count on it. That gives you some time to do your homework. Quite a few people have beaten Midland by using the arbitration strategy. That means, they file a Motion to Compel arbitration (MTC). As @Clydesmom mentioned, the laws in Louisiana are different from the other 49 states. You need to find out what is required for an answer, etc. Your homework is two parts: 1. Investigate your state laws as to how to file an answer, and how to file and possibly schedule a motion. Note that the court procedures might even vary from parish to parish. (For example, in my state, which has its own weird laws, the court procedures vary from county to county. My particular county has unusual court procedures, different from any other county in the state). 2. Read up on the arbitration forum. See what others have filed to get arbitration. Learn from it. You have from now until the deadline for a return to do your homework. If you do your homework, you will probably win the case.
  7. I just wanted to jump on the bandwagon to emphasize the very good advice here. The people who have had the most success have usually been the ones who saw how others won a case, and did the same thing. There used to be a poster from my state who would look up cases in which the people suing him had lost. He would then drive sometimes a few hours to whatever courthouse and copy the records. Then he would file exactly the same thing and win. The OP doesn’t have to drive a few hours. Read the thread. See how someone in the same situation beat the same people. Then do the same thing and win.
  8. Okay. Approximately how much was the loan? Use rough numbers for privacy What you need to do is to find a copy of the original loan. Most personal loans don’t have arbitration clause, but some do. If this is one of the ones that has such a clause, you will probably win. If not, you have a tougher road. You would then need to read up on strategies dealing with JDBs.
  9. What kind of debt do you have? Is this a credit card debt or some other kind of debt? Do you have a copy of the agreement? if this is a credit card, you can find if online. The point is, you need to see if there is an arbitration clause.
  10. You have a little homework to do. This is a Synchronicity account sold to a JDB (Junk Debt Buyer) You can probably beat them. You need to take them into arbitration. Almost certain they will walk away as soon as you do so. Follow these steps: 1. Look up the arbitration thread on this forum. Read what you need to do. 2. Go to the CFPB web site. Download a copy of the applicable credit card agreement. 3. Write up a draft of a Motion to Compel arbitration. MTC for short. If you have questions, post a redacted copy of your draft (your name etc removed) here for others to critique. There are samples on this forum if you look for them. 4. Find out the procedure for filing and possibly scheduling a motion in your county. 5. File the MTC with the court. 6. A few more steps, but that is enough for now. Start with steps 1 and 2, ask questions when they pop up. Good luck!
  11. What state do you live in, and what is the SOL? There aren’t a lot of places where a 15 year old debt can be sued on. We
  12. I agree with the others. If you engage in discovery, you will almost certainly lose the case. If you file an amended answer with arbitration as an affirmative defense, and file a MTC, you will probably win the case.
  13. The clerks you speak to in courts are not permitted to give legal advice. Only procedural advice. Sometimes they don’t know what they are talking about.
  14. If your last known address was in Williamson Co they could sue you there. Was that where the suit was filed? If so, have someone drive to Franklin. The court records are public. Anyone can view them. Most courts charge a per-page fee for copying documents Generally the service must either be in person or to an adult at the address. Doubtful they could serve a friend. I happened to know that Franklin was the county seat because my great-great uncle was a judge there many years ago. He finally retired about 1970 when he was 80. I visited him in a nursing home around there in 1977. My relatives had a farm in Nolensville from 1830-1980, where the judge was born. I still have relatives in the Nashville area; some of them attorneys.
  15. There is a serious danger they could do some sort of publication service or other alternative service and get a default judgment if you don’t show. You can file a counterclaim as part of your answer. File a counterclaim for harassment. You have two main goals: 1. Make sure they can’t get a default judgment against you. If you really are confident you can win the case, you have nothing to fear by an answer and counterclaim 2. Get all your evidence and witnesses set and prepare to fight this thing in court.
  16. There was probably a communication error between you and the clerk. The clerk probably thought you were taking about court sponsored arbitration, which few places have. According to the US Supreme Court, you are entitled to private contractual arbitration outside the court system. There have been others in Texas who have gone through arbitration. Look up how they did it.
  17. I am a bit confused reading this. Who is the original creditor? Some have arbitration agreements, others don’t What is a ballpark figure for the amount? Who told you that you can’t arbitrate the case?
  18. Who is suing you (NOT the name of the law firm)? Is this the OC (Original Creditor) or a JDB (junk debt buyer)? If this is a JDB, who was the OC? What year did you allegedly default? What are the approximate amounts?
  19. And therefore must deny. Whatever you do, don’t make a mistake I made many years ago and say I can’t affirm or deny. That case was ruled against me because I didn’t say .. and must therefore deny.
  20. The goal is to throw as much stuff around that MIGHT win the case as possible, and hope that SOMETHING works. That particular defense probably won't work. It is a long shot, but it MIGHT work. As far as Circuit Court goes -- you have the automatic right to appeal to Circuit Court if you lose. You will probably lose in small claims court. Once you are in Circuit Court your chance of winning are much higher. To re-iterate: 1. Try a MTC in small claims court, as well as using choice of arbitration and improper notification as affirmative defenses in small claims. Unless the lawyer is asleep at the wheel, you will lose the MTC. No big deal. You expect this to happen. However, sometimes the lawyer is asleep at the wheel. The importance of the MTC in small claims is to show you really want it. They might try to claim you waived your rights when you are in circuit court. By showing you filed an MTC in small claims, you show you did not waive your rights. The notification defense will probably not work. It is a long shot, but, sometimes it works. You have two shots to make it work. Small claims is your first shot. 2. If you lose in small claims, appeal to Circuit Court. You expect to lost in small claims, but, go through with small claims anyway. Sometimes you win. If you win in small claims, no need for circuit court. 3. File an MTC in circuit court. MOST of the time this will work. The other side will try to argue that the case is a small claims case. Your argument is the small claims exemption is ONLY when the case is still in small claims -- the exemption is no good for circuit court. MOST of the time you will win. 4. If your MTC fails, answer the claim, but with the notification defense as an affirmative defense. This is a long-shot. This is sort of like a Hail Mary pass in football. But, if you have watched enough Packers games on TV, you know sometimes the Hail Mary pass works. 5. If you lose everything, then you need to decide whether or not to appeal.
  21. They will find some hand waving way to argue against it. The magistrate might buy it or might not. Never assume a case is slam dunk. As I mentioned earlier, the top consumer lawyer in Wisconsin usually advises his clients that they will probably lose in small claims court even if the law is on their side because magistrates want to rule for the plaintiffs. If you lose in small claims, you have the right to have the case heard in Circuit Court Once it is in Circuit Court you have a very good chance of getting arbitration. The other affirmative defense is a backup plan. An affirmative defense puts the burden of proof on YOU. I would recommend signing an affidavit that you didn’t receive the proper notice. Once you have done that, they have to prove they did. Which may not be very easy.