Robear

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About Robear

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  1. Here is the best I could find so far, what do you make of it? http://judicial.alabama.gov/docs/library/rules/cv13.pdf Then there is this specifically for small claims: http://judicial.alabama.gov/library/SmallClaimsRules Defending. The defendant shall file a short and plain reply showing what defendant admits, what he denies and why he denies it. This reply shall be called an answer, shall be filed within the deadline set forth at Rule “F”, and the form of answer [SM-3] appearing in the appendix to these rules shall be sufficient. If a defendant has a claim against a plaintiff, he shall file it with his answer and send a copy of it to the plaintiff. Said claim shall be in the form applicable to a complaint and it shall be called a counterclaim [SM-6]. Failure of a defendant to make a counterclaim which is based upon things which gave rise to plaintiff's claim will not of itself prevent the defendant from raising such claim in another court or case so long as the defendant either wins his case in the court or prevents the judgment of the court from becoming a final judgment by the filing of a notice of appeal as provided in Rule “M”. Answer may not be made by a motion to dismiss. The court shall be very lenient in the allowance of changes or amendments to complaints, answers and counterclaims and continuances of trials when necessary to serve the ends of justice
  2. Nope, its a common U-gly, N-o good, I-gnorant, F-oolish, U-ppity, N-auseating, D-isgusting JDB, if you know what I mean
  3. Agreed. But that's what court is about, what they can prove and what I can prove. Agreed. I beat one already this way. I don't expect they will fold, in fact I'm kind of excited to prove my case, but if it comes up I'll take it. Time will tell...
  4. Yes, I received a collection letter from the law firm with the 30 day verbiage. I sent a simple validation letter certified RR, after they signed for it they sent another collection letter and filed suit THEN sent validation.
  5. JDB, the violations are continued collection before validation
  6. Nope, the two that were dismissed were Synchrony (midland) and comenity (cavalry).
  7. I really appreciate those folks who came here looking for help and we can see what their final outcome was. So even though I'm a year late I did want to update this post as to the outcome. My first case went to trial vs. a rent-a-lawyer for Midland, happy to say I very simply defeated that case. My judge has certain "requirements" and learning those ahead of time by going as an observer a week before greatly helped. I went fully prepared to argue about the affidavits, bill of sale, ect, but it didn't even get that far. Mean time, in the second suit (referenced above) I scrutinized everything and was able to locate a couple of FDCPA violations. I answered the complaint and used the violations to file a countersuit. The very next day after defeating midland, I got a call from the 2nd attorney asking for mutual dismissal. 2-0 in two days!
  8. Just wanted to update this post, I did get served for both accounts as expected. The Cap1 is up for trial next week, I have filed a counterclaim due to some clear FDCPA violations. I'm not too worried about this one, the judge is fairly debtor friendly if you know what to say (and I do). The other suit (Synchrony) has a hearing scheduled for my MTC arb. that I filed. I want to help any other folks in Alabama find what I couldn't at first--filing a MTC in small claims. I finally figured out to go to the courthouse and get on their computer system and just look through the small claims cases, especially concerning JDB cases. Once you find a case that is similar you can see if it contains motions, if so you can see and even print (for a fee) a copy of it, thus learning how to compose it to meet your local court rules. Some used a district court cover sheet for motions and some didn't (I didn't). You can file a MTC with your answer, which is what I did, don't forget to include a letter of service and mail a copy to the opposing side (you will also see a sample for that as well). I got notice for a hearing for my MTC a few days later. I'll update again after the upcoming showdowns.
  9. Thanks Fist, that's exactly the precise advice I was looking for.
  10. hSo I'm still digging, but I was able to find the following on the Alabama Supreme Court and State Law Library: ALABAMA SMALL CLAIMS RULES Rule N. Applicability of ARCP The Alabama Rules of Civil Procedure as modified for applicability in the district courts shall be applicable to court cases when necessary to serve the ends of justice and when the Alabama Rules of Civil Procedure, as modified, are not inconsistent with these rules. And looking up Alabama Rules of Civil Procedure under Pleadings and Motions on the same website, I found this: (b) Motions and other papers. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules. (3) All motions shall be signed in accordance with Rule 11. I also found a "motion cover sheet" (see attached file) If I understand correctly, I can make a motion just as if it was district court. I would use the attached cover sheet along with my motion and my affidavit for the CCA should the JDB take this to court. Is that how you read it? Motion Cover Sheet.pdf
  11. Quick history: I beat Midland in small claims (no counterclaim by me), which caused another claim by Cavalry (which I did have a counterclaim) to settle with 0 and mutual dismissal w/prejudice a year ago. Its been quiet ever since, however, I just received two dunning letters from two different attorneys for two different accounts. One being capital one, the other synchrony bank (both are JDB). No suits have been filed yet, but I feel its coming, most likely both being small claims. I don't see an arbitration clause in the cap one agreement, so I can deal with that in small claims (same law firm I beat already). The synchrony one is what I would like to pursue the arbitration strategy on. The CCA has the following verbiage: • What claims are subject to arbitration 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, except as noted below. 2. 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) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. My question is, should I wait for a lawsuit or file a claim with aaa/jams preemptively? I've read mixed feeling about each on this site. My main concern in waiting for a lawsuit is that I cannot find any way to file a MTC in small claims in alabama. I have googled it, looked up the court rules and even called the clerks office. I cannot find any way to have the judge rule on moving it to arbitration, short of showing up to trial and explaining that I want arbitration as provided in the CCA. If that is the only way, should I then have a case started already before I get there? The answer sheet for small claims has 4 boxes to check: A. □ I do not live in this county and the suit against me is not for work or labor performed in the county where suit has been filed; thus, I want this case transferred to my home county of ______________________________________________, B. □ I admit everything in the Statement of Claim and do not want a trial. (This means that you consent to a judgment for the amount claimed plus court costs). C. □ I admit that I owe some money, but not the total amount claimed by the plaintiff(s). (If this block is checked, the case will be set for trial. Please note that any money paid by you on this claim after the suit was filed may not be reflected on the Statement of Claim which you receive. You should contact the person who has sued you or his/her attorney to determine the present balance which is claimed). D. □ I deny that I am responsible at all. (If this block is checked, this case will be set for trial). I'm still well within the 30 days since dunning, the amount alleged is just shy of 5k. Looking for suggestions, advice, anything. Anybody in Alabama been through this? Thank you all, this site really helped with the first two victories! @fisthardcheese @Harry Seaward @BackFromTheDebt @BV80
  12. So if I understand, there should be no problem with requesting arb. How?
  13. I have spent several hours on these forums trying to familiarize myself with how this all works, I am a newbie. I will probably post two threads as I currently have two lawsuits pending. Here are the specifics of this particular case: Plaintiff: Cavalry SPV LLC as assignee of Comenity Bank Attorney: James A Nadler Amount: 1750.00 OC: Comenity bank/torrid Served legally by sheriff, have 13 days left to respond as of today Before being sued I responded to the initial JDB letter with my own validation of debt letter, which was certified and return receipted (I have it). I received a statement in reply at that time. opened: july/2010 last payment may/2017 SOL not expired Statement of Claim: SUIT ON OPEN ACCOUNT/BREACH OF CONTRACT Attached to summons: front and back of a statement I understand the reasoning to get this moved to arbitration, I need to know the mechanicals of doing it. Looking at the current (2017) agreement https://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/Comenity_Bank/Torrid.pdf I don't see a exemption for small claims, correct me if I'm wrong. I know that there are archives for the older agreements, anybody have a system to checking them? I downloaded 2011 and they seem to be randomly placed? My summons came with an answer sheet, and I have not replied yet. I understand there are a myriad of mistakes that can disqualify arb. so how do I proceed to move this into arb? I looked online for the rules of court, couldn't find anything other than fee schedule. Court house is not far, I can go and ask for the local court rules I guess. Thanks in advance for your help!