shadowfighter

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  1. Okay, so it took a while to get any solid progress on this, but I'm finally seeing some traction. The motion to compel arbitration was originally served to the address listed in the body of the complaint in MN. When I filed the request to submit for decision I was told by the judge that I had to serve the plaintiff at their proper address. I was stuck on a work trip for a few weeks and wasn't able to serve that at their UT office. Upon my return I immediately filed a change of address from my father's house to my house with the court to try and ensure that all information sent for the case was sent to my address. This was advised by a local attorney that I paid for an hour for advice. I also sent out the motion to compel to the plaintiff's address in the upper-left of their complaint. Things have taken an interesting turn and I screwed up due to being pro-se. TL;DR of all this. The change of address went through fine. The Plaintiff filed a memorandum in opposition to the motion to compel on the argument that I hadn't proved myself as the true party of interest and that I was not the defendant and therefore had no claim to compel arbitration. Additionally I didn't serve my father with copies of all my paperwork. On those procedural grounds they asked the judge to rule against my motion to compel. I only had 10 days (7 days + 3 days from mail service) to file my reply memorandum, but thought I had 17 days (2 weeks + 3 days from mail service) which is how long they had to file their memorandum. I missed the shorter (actual) deadline and filed my reply on May 3rd, apparently one day after the judge had ruled against my motion to compel arbitration on procedural grounds. On May 3rd I put together a decently strong but probably very poorly written motion for summary judgment on behalf of my father. No idea if it was in the right timeframe to file it or not, but this case is getting ridiculous. I've never seen a debt collector *not* want to have the proper identity of the person that the debt was owed by - I guess that's just how much they hate arbitration. My father's motion for summary judgment included an exhibit of property records here in Utah during 2014 when the original Promissory Note Agreement was signed - in Maryland by me. I had included my old driver's license as an exhibit in my reply, but I presume that's irrelevant as it was filed too late for now. Regardless though, the Plaintiff admitted the Promissory Note was filed but didn't know which party (Defendant, my father, or Other Party, myself) was the one to whom the agreement belonged to. The address on the contract is my old address in Maryland, and my father clearly lived in Utah. Hopefully this motion for summary judgment, requested with prejudice, will at least get this crap off of his plate. He shouldn't be having to deal with any of this. Even if all the claims the Plaintiff make are true, my admitted promissory note with an address he's never resided at should hopefully get this out of court from his perspective and I can try again if / when they come after me and I'll know the proper timeline now. Since the judge's ruling I filed a motion to substitute parties as well to request that the court dismiss my father as the defendant and instead substitute myself as the "real party of interest" in the original account as the defendant. I'll have to wait a lovely 17 days before I can file a request for decision on that, but at least it'll be a step in the right direction. So now to my fun question... I'm running out of time to file a motion for reconsideration on the motion to compel arbitration. I can try to claim "excusable negligence" in that I've had an insane work / travel vacation this past month and I sincerely thought that I had 17 days to reply to their memorandum just like they had to mine, but I have to file it by the morning. I've got it mostly drafted, but I'm also curious if I should just not file it, wait for a decision on my motion to substitute parties or my father's motion for summary judgment, and then re-file the motion to compel arbitration as the proper defendant if I'm so named... If anyone is up at this late hour, and has any insight - I'd be super appreciative. I imagine I screwed something up on the motion for summary judgment for my dad that they'll be able to get it denied, but I also imagine they'll never get a penny out of a truly innocent party unless I'm named as the defendant. Does anyone know if I don't file the motion to reconsider the motion to compel arbitration if I'm prevented from further filing a motion to compel arbitration in the future if I'm named the true Defendant? Thanks for any thoughts on this, Shadow Fighter
  2. Alright, mailed off a bunch of stuff to the JDB and went and filed it with Court as well. For the reference of myself or anyone else dealing with a case in Utah: * Consent to email (so I can actually know of anything happening in the case instead of having to call the court each day) * Answer - even with an arbitration attempt, as per Utah's rules for arbitration, you can't file a motion to compel arbitration without following the usual process and a motion can't be filed without the answer being filed. I made sure that arbitration was mentioned as my first affirmative defense & mentioned a successful ruling on the MTC arbitration and denial scenario in my relief requests of the Answer. * Motion to Compel Contractual Arbitration and Stay Proceedings * Affidavit with Exhibit A (the original promissory note) * Exhibit B (the letter sent to the JDB requesting arbitration) - I'm not sure if the letter is truly necessary, but there are parts of Utah's arbitration rules that read that a MTC wouldn't be supported as firmly by the Court without having at least reached out to the JDB to try and go to arbitration on your own. I mailed my letter to them a few minutes before I mailed their certified and return receipt folder full of copies of everything I filed with the court so that I didn't technically lie on anything I submitted, I just didn't give them any advance notice or chance to respond to my request for arbitration before serving them with a MTC it. I'll try to get in here over the weekend and post the content of my answer and MTC for those who might want to use it in the future. I'll also be sure to update this thread as the case moves along with everything to keep track of how successful (or not) this is.
  3. This is a promissory note on an unsecured personal loan that has been bought by a junk debtor. As to whom "I" and "you" are they referencing this as myself being "I" and the OC / purchases of the debt being "you"
  4. Thanks for the reply @nobk4me. I'm going to give this thread a bump as my paperwork is due tomorrow. Does anyone have advice as to any specific affirmative defense I should use in my answer if I plan to move this to arbitration? Is there a specific callout or phrase to use in the answer that I should include to reference that there is a Motion to Compel Arbitration that is filed with it or going to be filed soon? Thanks, Shadow Fighter
  5. 1. Who is the named plaintiff in the suit? Velocity Investments, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Gurstel Law Firm, P.C. 3. How much are you being sued for? ~$17k 4. Who is the original creditor? (if not the Plaintiff) Prosper 5. How do you know you are being sued? (You were served, right?) Informed by my mother that service had been attempted on their house and left on the porch. 6. How were you served? (Mail, In person, Notice on door) Service was in-person, rejected, and left on the porch. 7. Was the service legal as required by your state? Probably not. The summons was served at my father's house (who shares a similar name, but with whom I do not reside), and was not accepted by anyone in the house. They left the summons on the porch which included details about the debt, with people who were probably not legally allowed to have the information about my debt revealed to them by the plaintiff. I have recently moved to the same county as my father (was out of state before that) and I'm assuming they merely mixed up our identities, but that's where I'm uncertain as to whether or not the service was legal (or even if that matters beyond an FDCA complaint or two if needed). Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I had never heard of Gurstel Law Firm or Velocity Investments prior to seeing the summons. 9. What state and county do you live in? Utah, Washington County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Nowhere near outside the statute of limitations. Payment was last made on this account in June of 2017. 11. When did you open the account (looking to establish what card agreement may be applicable)? This was an unsecured loan that was opened in August of 2014. 12. What is the SOL on the debt? To find out: 6 years as per current residence in Utah given it is a written contract. Statute of Limitations on Debts 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or b) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Unfortunately I couldn't get much out of the clerk. I know that a claim has been filed as I was provided a case number. 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This debt was, "Charged off as bad debt" in June 2017 and also shows, "Purchased by another lender." As of yet there are no collections reported to my TransUnion credit report. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). I did not send a debt validation letter as my first contact with the plaintiff was the summons. 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I have about a week to file my answer to the complaint. It should be noted that my father has already sent a letter disputing this debt as the summons was served at his house using his name as well (our names are very similar, but legally not the same). There are 6 claims made in the complaint (summarized): 1. That the plaintiff is the owner of multiple Prosper Funding, LLC accounts, including my account. 2. That I obtained credit from Prosper in August 2014 3. That I am a resident of Washington County, Utah, or signed the below-described transaction in said county (probably unimportant, but the contract was signed in Maryland) 4. That plaintiff's predecessor loaned me funds that I agreed to repay according to set terms and conditions in a written agreement. 5. That I have breached said written agreement which has defaulted, for $X amount 6. That plaintiff has been assigned all rights to the contract in question. Unsurprisingly, the plaintiff is seeking award of the full sum claimed owed, their costs of Court, and other / further relief as the Court deems proper. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence, exhibits, attachments, etc. were included in the summons. Only the complaint. 18. How did you find out about this site? Google search while trying to research the law firm representing the plaintiff and potential attorneys that could help. 18. Read these two links: ✓ Using Arbitration To Defend A Debt Collection Lawsuit ✓ Sued by a Debt Collector - Learn How to Fight Debt Lawsuits I've spent almost all night on reading through the posts on this forum once I realized the attorney options I found wouldn't actually save me anything (one attorney would have settled it for about $4k less than owed, but they were going to charge $4k in fees when it was all said and done 😂). I think there is a *very* strong case for arbitration to be compelled, but I wanted to ensure there weren't other defenses I should try to utilize first. I don't mind this going to arbitration if that is the best chance at a favorable outcome, but I wanted to check with more seasoned veterans to try and double-check that approach first. At the end of the day I honestly don't mind a settlement agreement / repayment plan if needed. My main goals are to try to get this out of court, avoid garnishment, and keep my credit report as clean as I possibly can so that I can take out a VA mortgage again in a few years. TL;DR backstory is that I had a very nasty year+ long divorce/separation that has drained any and all financial resources and resulted in a foreclosed house back in August. I'm looking at a minimum of two years from August before I can get another home loan, but that is considerably faster than having to file a Chapter 13 bankruptcy (5-6 years faster). Ultimately I want to keep my credit report clean of collection attempts if at all possible, and I'd be willing to enter a settlement and pay-off plan for this debt if that can happen. I'm not in a place currently to be able to afford an attorney as I'm still paying thousands to my divorce lawyer as quickly as I can, but I can probably budget a decent amount each month towards repayments. However, if those who are more knowledgeable than I think there's a chance I can get this case discharged or dropped somehow by compelling arbitration I am more than willing to see that threat through to the very end and make them spend as much as necessary to get anything out of me. Here are the most relevant phrases regarding arbitration from my copy of the contract from 2014: My question is mainly regarding the administrator and arbitrator fees up to $1,000. If I can compel this to arbitration, do I get slammed with fees beyond that? The verbiage after that seems to protect me from their fees, but I can't quite interpret this part clearly. Thank you to everyone who takes the time to read this and offer any insight, ideas, or suggestions to help me leverage and jockey for the best position possible regarding this debt. I've been able to pay off and/or settle all other debts that I have and am current on the few other debts that remain. This one is the one final debt I need to figure out how to handle and I'm honestly no sure how to approach it. Sincerely, Shadow Fighter