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BackFromTheDebt

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Everything posted by BackFromTheDebt

  1. If there are complicated issues, it would probably be better to have the issues tried before a judge, especially if the judge is consumer friendly. You need to realize that most people are not like the posters on these internet forums. We may see ourselves as David battling Goliath, as the Little Man (or woman) battling the Evil Big Banks. In the outside world, most people see someone who has allegedly defaulted on debts as just a deadbeat. That tends to prejudice many juries. To be fair, there are quite a few judges who have the same prejudice. As @WhoCares1000 points out, the main advantage of a jury trial is it is more expensive for the plaintiff. Sort of the same argument as arbitration. I knew a fellow who would always demand a jury trial. His county had judges that weren't great, and he wanted the other side to run up their bills. My county has better judges, so I never wanted a jury trial. That didn't matter, because none of my cases ever went to trial.
  2. Every once in a while someone comes in and, having read a few articles, thinks he knows everything about fighting debt collectors. News flash — none of us know everything. I personally have fought off debt collectors for over $100,000. I personally have gotten thousands of dollars from nasty collection agencies that broke the law. I have also lost thousands by hubris. Not too bad. Coltfan paid quite a bit of money in legal fees for a case where he was sanctioned between $60-$70k. Don’t lecture us about slaying Goliath. We did so many times over. When you have slain Goliath a few times, get back to us.
  3. Let us know how this works out. I hope this goes well for you
  4. It is extremely difficult to establish that a statement has NOT been sent. Generally, if the debtor has been paying on an account, it is assumed the debtor has been receiving the statements. If, suddenly, the debtor stops payment, then it is very difficult for the debtor to convince a judge that the statements suddenly stopped coming at that time. If the creditor says they sent the statements to the same address, then the judge (or arbitrator) is going to believe the creditor continued supplying statements about 100% of the time. The creditor doesn't have to prove the debtor received the statements. The creditor has to say they sent them, and that is good enough. Since they have been sent, then the debtor has 60 days to dispute. So that takes care of most of that argument. In some states there are some other ways around it. For example, in Wisconsin the creditor has to supply charges back to zero balance, and this has to be verified by someone with first hand knowledge of the account. I won a case because the judge agreed the affiant did not have first hand knowledge of the account. For some strange reason, the high judges in Wisconsin ruled that these no longer apply to JDBs, so there are far more JDB plaintiffs than in the past. I once had an interesting attack on the evidence for a case in arbitration. Since the case was settled very favorably just before the hearing, I don't have a clue how well this attack would have worked. I contended that the statements sent by the OC were not the CORRECT statements. Every statement they sent me had an ad on it with a copyright for a year several years past the statement date. What probably happened is they pulled the information from their databases and put them onto the current statement form. My contention is these were not the correct statements. Since Wisconsin demands someone with first hand knowledge, and I know a bit about how data are stored in databases, I was prepared to show that their expert witness wouldn't be able to describe exactly how the records were stored, and how the statements were retrieved. I also pointed out some weird things about the statements. Their reply was the 60 day requirement was over. My reply was these were not the same statements that had been mailed to me. Would that have worked in a hearing? I don't know. Sometimes yes, sometimes no. The point is, I had a lot of time on my hands, and the attorney was working on a number of different cases all at the same time. He didn't have time to deal with the paperwork I was dumping on his lap. This was also a situation where the SOL had not been determined, because the Delaware and Wisconsin SOLs are different, and the arbitration agreement could have been interpreted at the time as favoring the Delaware SOL. Which had passed. The point was, in SOME states attacking the evidence and the credentials of the affiant work SOME of the time. In other states, it won't work at all. Nothing is 100%. If one is in a state with favorable rules for debt evidence, an attack MIGHT work, or at least it MIGHT waste enough of the attorney's time he will want to get rid of the case.
  5. Onto the completely different subject of attacking their evidence: The good news is, in some states this works. The bad news is, this strategy is not nearly as useful as it used to be. Back over a decade ago I was able to win some cases by attacking their evidence, or attacking the credentials of the person who signed the affidavit. These days, for reasons which have been explained over and over again, those methods are less effective in MOST states (California is a notable exception, from what I read). But, not of this really has much to do with whether someone will pursue arbitration. As has been pointed out countless times, a weak case in court is a weak case in arbitration. The main point of arbitration is that many JBDs will simply walk away, and it can be used to pressure OCs into a more favorable settlement. There are a few situations in which filing for arbitration BEFORE being sued is wise: 1. If one is dealing with a potential small claims case with a card, e.g. Citi, which has a small claims exemption. I did this once with a Citi card. 2. If one's spouse is about to be sued, and one's spouse cannot handle a pro se case very well. I did this with one of my wife's accounts. I had some clear malfeasance on the part of the OC, so it was easy for me. I entered myself in JAMS as an unpaid non-attorney representative. Perfectly kosher under JAMS rules. 3. If there are SOL issues. I once filed in JAMS where the account used Delaware law for arbitration. The SOL had long passed in Delaware, but not in my state. Note that this particular OC later changed their arbitration provision to use the SOL of the debtor's state. 4. If one is in a field in which having a law suit on the record can be very bad. Such as security clearance jobs, banking, etc. I am in banking, so suits on the record are not good for me. 5. If there is clear malfeasance on the part of the creditor, esp. for telecommunications firms. As mentioned above, I did file a pre-emptive arbitration where there was clear malfeasance on the part of the OC. This was a bank. I am not at liberty to say which one. 6. One is in a county where the judges or magistrates have been really bad about granting MTCs. Fortunately, I have never been in this position. Otherwise, wait until being sued before initiating arbitration.
  6. No, the advice to neither admit nor deny is horrible unless one adds the "and therefore denies" at the end. It caused me to automatically lose a case, and it can have the same effect on others. Anything NOT denied is deemed admitted. That is how courts work. Your comments about attacking the evidence are a completely different matter.
  7. THAT is the key. I once had a foreclosure where I didn’t know that last part. I would have lost anyway, but I essentially handed them a victory by not putting in “and therefore, denies”.
  8. That is horrible advice and can lead to a very quick defeat by a judgment on the pleadings. Any allegation not denied is deemed admitted. I tried the ‘can not admit nor deny’ route once. It did not go well for me.
  9. This isn't taking away from or adding to the contract. This is interpretation of the contract. Small claims exemptions normally state that the exemption applies if the case is in Small Claims, and REMAINS in Small Claims. That could be interpreted as being if the case is removed to Federal Court, then the Small Claims exemption no longer applies. That could also mean that a trial de novo when a small claims case is appealed to a higher court could remove the small claims exemption. The case is no longer in small claims, therefore the exemption no longer stands. Whether or not a judge is consumer friendly makes a HUGE difference. Like it or not, there are judges who simply rule however they feel like ruling. For example, a friend of mine in a less consumer friendly county in Wisconsin had a horrible ruling just because the judge felt like ruling that way. We have seen many situations on CIC in which judges made horrible rulings against debtors just because. Therefore consumer friendly judge and a consumer UN-friendly judge might make completely different rulings just because. And yes, this could possibly be a way around the small claims exemption in states where there is an automatic appeal with the case being de novo. It is no longer in small claims. As I said, my memory isn't perfect, but I think I recall a thread on CIC where a poster in Dane County, Wisconsin, had a Circuit Court judge rule that the small claims exemption wasn't applicable when the case was appealed to Circuit Court. IIRC, the plaintiff in the case was erroneously claiming a small claims exemption that didn't exist, and the judge said even if the small claims exemption existed, it didn't apply to Circuit Court. OTOH, an appeal which is NOT de novo would be a different matter. My point is: I don't know what the appeals process is in Georgia. It appears to require a bond, which is not very helpful to the OP. If it is not de novo, it is not helpful to the OP. If the judges just like to rule against alleged debtors, it is not very helpful to the OP.
  10. There have been few. If any, real court tests as to whether a trial de nova gets rid of the small claims exemption. I can’t remember the details, but there might have been a case in Dane County Wisconsin, which is the most consumer friendly county in a consumer friendly state. I once had the good fortune of having a case with Cap 1 before the most consumer friendly judge in Dane County. I am happy with the results. But, what might have happened in a particularly consumer friendly court in a different state is not applicable to Georgia.
  11. At this point the only way to get an MTC is to convince the magistrate that Magistrate Court is not the same as Small Claims court. I am not familiar with the Georgia court system. From what @Clydesmom has posted it does not appear to be very consumer friendly. There is the question as to whether an appeal would take the case into a higher court without the small claims exemption. @BV80 showed the dangers of that approach. I don’t know the GA appeals process. If you could appeal after the judgment, do you get a de nova trial or is it a review of the previous case? In my state the higher court gives a de nova trial, which gives a better chance of an MTC since the case is no longer in small claims. Other states have different rules, which I cannot address. You need to know the appeals process in your state. If it is a review of the lower court decision, you may be out of luck.
  12. That makes sense. Defaulting while the Sync card was in effect means the OP never accepted the Citi agreement by using the card. True, Sync has an excellent arbitration provision. The OP should offer a mutual dismissal with prejudice.
  13. I thought Cap 1 got rid of their arbitration provision? Unless you have had this account for a decade or so, you can’t arbitrate. That being the case, why would the OP want to toss the stipulated judgment? It might be a fair offer, or it might not be a fair offer. If it is a fair offer, accepting it might be the best bet.
  14. This sort of drivel is worse than useless. It violates the dictum “first, do no harm”. Back in the old days we used to put all sorts of completely useless affirmative defenses in our answers, hoping to trip up the opposing attorney. It never worked. It was useless but not much damage other than wasting everyone’s time. Using all sorts of internet conspiracy theories takes things to a lower, and worse, level. In some situations courts have sanctioned litigators for putting in baseless conspiracy theories. One example is the “yellow fringe “ conspiracy theory. Courts regularly sanction litigants who use that theory. I don’t know about the “sovereign citizen” theory, but I gather courts don’t look kindly on that theory as well. A few days ago there were headlines where a federal judge in Colorado sanctioned attorneys for bringing a baseless election case with nothing but conspiracy theories. The moral is, putting in outrageous conspiracy theories one finds on the internet into a court case can be worse than useless. You can get sanctioned. That may be automatically losing your court case plus having to pay legal fees for any time the other party spent answering your whacko claims.
  15. Yes. There is specific language in each arbitration provision stating which parties are subject to arbitration. Sometimes collection agencies and law firms are subject, sometimes not. A JDB is always subject, due to buying the contract and taking the role of the OC in the contract.
  16. Depends on the arbitration agreement. Sometimes yes, sometimes no.
  17. And once again we see yet another username for the same person to give completely useless information. Back to the question in hand— Of course, wait until JAMS officially closes the case. Sometimes they are maddeningly slow at doing this. They give the other party an absurd amount of time to finally cough up the money. If the money hasn’t been paid already, it almost certainly never will be. The only time I faced this situation, the judge lost patience before JAMS, and closed the case without prejudice. By the time JAMS closed the case, the other side was boxed in. They couldn’t arbitrate anymore, and they couldn’t refile without violating a court order. If JAMS closes the case while the court case is still open, you are right. The correct strategy is to file a motion for dismissal with prejudice as a sanction for violating a court order. I have never written one. I would just include proof of JAMS closing the case, quote the judge’s order, and point out that the plaintiff’s action makes it impossible for the case to proceed
  18. It means you won The chances of then re filing are very smalll
  19. Well, they changed the card over the years. They didn't have an arbitration agreement when I had their card. I guess they do now. You should have put in improper venue because of arbitration for as an affirmative defense. If you can amend it, do so. Otherwise, just file the MTC ASAP. Here is the thing. MOST of the time the OCs will go through arbitration, especially for that large an amount. The point of arbitration is NOT to win the case, but to give yourself some leverage to try to negotiate a better settlement. At this point, you can still negotiate. Arbitration may give you the chance for a better settlement. Your two best windows for negotiating a settlement are: 1. Between the time you file in arbitration and when they pay the fees. 2. Much later in the case, just before the hearing. This especially works if the COVID restrictions are lifted, and there is an in-person hearing. Those can be expensive, so that puts some pressure on them. It is possible, but not likely, that they will walk away from this debt in arbitration. As I said, not likely, It is possible, and somewhat more likely, that you will be able to use arbitration as leverage for a settlement you can live with. Arbitration is not a magic bullet. It is a useful tool.
  20. I hate to be the bringer of bad news, although not all is bad. FNBO generally doesn't lose. Ever. I don't know anyone on this forum who has beaten them. FNBO doesn't have an arbitration clause, so you can't use arbitration (unless they put an arbitration clause in since I dealt with them). They keep very good records. They don't sell to JDBs. They usually use the best debt litigation law firms, although I have little knowledge of the firm in this particular case. I settled with them. I would suggest making a low ball settlement offer, and see what their reaction is. I settled for less than I expected, although that was a long time ago, and before the account was written off. For an amount this high, it would be very difficult to pay if off all at once. You will probably have to agree to a stipulated judgment. That is, you agree to a monthly payment plan, and if you miss your payments, they won't have to go to court. They will already have a judgment. So make sure you agree to a payment plan you can actually afford. If you can't get a payment plan you can afford, consider bankruptcy. The only good thing is -- in Texas it is more difficult for them to collect on a judgment. There have been some situations where Texans have simply let a judgment be placed against them, which the creditor could not collect. That is a dangerous strategy, and should only be used if you really know what you are doing, and they really CAN'T collect against you. There are some Texans on this forum, @texasrocker being the most active. He is knowledgeable about specific Texas laws, procedures and strategies. If anything he says contradicts anything I say, listen to him.
  21. We see the complaint about the expense of arbitration many times. Your approach was correct. The OC put arbitration in the contract. Coming in later and saying it’s not fair means they want to throw out their own contract, violating a Supreme Court ruling.
  22. BK is an interesting thing. For some, BK is a godsend. For others, BK is terrible, and to be avoided except as a very last resort. I, personally, was in a situation in which I was heavily in debt but BK would not have been very good. Fortunately I was able to use a number of strategies, including arbitration, to fight off my debts and get back on my feet. For others, BK is great. If you are out of work and have lots of unsecured debt, BK may be a great option. Or not. See how this plays out. If this is your only large debt, and if you can get rid of it, you don't need BK. If you have other large debts, and you have some large medical debts, BK might be the way to go.
  23. Back in the mid 1980s I was in a situation where I had to quickly get medicine for a sick loved one. I drove an unregistered, unlicensed car, and got in an accident. I was extremely lucky. 1. The cops decided to be nice and not mention the accident on the ticket, which made the change much less serious 2. I was in NYC. That was a civil, rather than criminal, charge. 3. There was no proof that the accident was my fault, although in retrospect I was distracted and it probably was my fault. So I avoided a law suit from the other car. 4. Nobody was injured. Otherwise I would have gone to jail. 5. No kids in either car. 6. The judge was nice and gave me the lowest penalty. I still lost my license for a year, and had to pay a big amount to get it back a year later. 7. I was in a place where losing my car and license wasn’t that big a problem. If I hadn’t been so lucky, I would have a criminal record. My current job would be impossible to get with a record. For the OP, what would happen if you needed to go to the drug store and had a kid in the car with you and got in an accident with the kid in the car? That could easily be a felony conviction, jail and /or prison time, and loss of custody of any children. These days meds can be delivered. Don’t take the risk.
  24. You haven't even given us the names of these agencies, so we can't help you without that information.
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