Vinsey

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About Vinsey

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  1. Gotcha. I wasn't sure of this, so this is good to be clear on. I had hoped there was more I could do than just kicking the can down the road, but as long as my money stays in my wallet it's a big WIN in my book.
  2. Yep, you were right! I fudged up the with/without prejudice. My case was dismissed without prejudice which is why I wanted to be certain my MTC hearing was moot before I left. Note: I've edited the post to be correct.
  3. Alright. If you're reading this thread, you're probably wondering what the results of my case were. You may even be hoping to find out what a court hearing looks like in this neck of the woods. I also like to know what to expect when it comes to these types of situations, so I'll detail my experience for you below. Keep in mind: my original court date and hearing for my MTC were scheduled 30 minutes apart. Would I do that again? Probably not. You'll see why in a little. 1. I arrived 30 minutes early. My hearing was set in General Sessions Court which is basically a medium-sized room with the typical court setup plus rows of chairs for free seating. A huge influx of people arrive exactly on time, so seats run out quick. The overall atmosphere is extremely lax. People watch videos silently on their phones, lawyers don't bother shooting the sh*t with their indoor voices, and denim jeans and hair bonnets are OK. I mention this so you don't think you have to go out and buy a pair of court slacks like I did. 2. Around the time of your hearing, the judge will give verbal instructions to the room for how things will proceed. First, you'll wait for your name to be called on the docket. Once it's called, you'll be following the JDB's attorney to the lobby area and wait in a line to speak to him with everyone else getting sued by that JDB that day. You'll notice that everyone else is agreeing to payment plans, signing off on it, then leaving. You'll show the attorney your summons/case number so they can locate your file in their bin of paperwork. If you've followed the above steps in this thread, they'll already know you've elected arbitration. Previously, this is where I've simply stated I have a hearing in X amount of minutes pending arbitration and went back to sit in the room. This time, the attorney immediately stated that they dismiss without prejudice, so I'm free to go. 3. Learning from my previous lawsuit, I didn't take the attorney's word for it. I went back to the court room and checked if my MTC hearing was truly dismissed. I was under the impression that the judge had to see me since I filed the MTC and was present for my hearing. The clerk to the left of the judge confirmed that my MTC hearing was still set, so I stayed. I sat and waited for my name to be called on the next docket. It was my goal to be heard, file arbitration, and take a shot at a dismissal with prejudice. Instead, my name was called and the clerk spoke to the attorney before coming over to tell me that they dismissed my case. I verified that there's no way I can have my MTC hearing heard and was told that "they dismissed your case so in the eyes of the court, your case doesn't exist." This brings us back to the hearing dates. My spouse thinks that the MTC hearing being after the original hearing was a poor choice because it allowed the JDB's attorney to dismiss the case prematurely. If that's the deal, my learning lesson this go 'round was to schedule the MTC hearing before my original court date. We'll see how that goes next time!
  4. I have never heard of that before. This will probably be invaluable to me from here on out - thanks again!
  5. Volt Info. Sci., Inc., 489 U.S. at 479, 109 S.Ct. 1248 (citations omitted). Therefore, the question becomes "what the contract has to say about the arbitrability of petitioner's claim." Mastrobuono, 514 U.S. at 58, 115 S.Ct. 1212; see also Frizzell Const. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 84 (Tenn.1999). 282*282 In this case, the arbitration clause governs "all claims, demands, disputes or controversies of every kind or nature between [the parties] arising from the [sale of the vehicle]." The arbitration clause also states that arbitration shall be "conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. Section 12 et seq." Furthermore, it contains the provision that the parties "agree that any question regarding whether a particular controversy is subject to arbitration shall be decided by the arbitrator." Thank you so much for going out of your way to produce this! Where did you find it, by the way? I was searching arbitration cases on the tn.gov website, this forum, and Google.....But I always seem to not be looking in the right places. I'm gonna have to read these a few more times outside of work hours to have the brain capacity to understand them clearly first and know where to insert them into my MTC.
  6. Okay, gotcha. Yeah, I'll definitely be scouring the web for more case law but so far, my search has been pretty fruitless.
  7. Hey y’all. This isn’t my first time getting sued by a JDB, but it is only my second so my goal is to be more knowledgeable and competent this go ‘round. I aim to heavily document this case in hopes of being a resource to my future self and others in the SE Tennessee area (since General Sessions Court does things a bit differently here.) My previous case (nearly a year ago) was dismissed without prejudice, largely based on the steps I’ll detail below and one silly mistake you can read about in my post history. As you know, IANAL. I also don't pretend to know a damn thing outside of what I've researched and read from the Top Community Contributors here @fisthardcheese @MikeB35 @Goody_Ouchless @BV80 @Brotherskeeper @Clydesmom @Harry Seaward - forever grateful for your advice, good people! I'm posting this for others, like me, who couldn't figure out where the heck to even start. Let's git it. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: CURRENT SUIT DETAILS: 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC 2. What is the name of the law firm handling the suit? Weber & Olcese, PLC 3. How much are you being sued for? $1200 4. Who is the original creditor? (If not the Plaintiff) Synchrony Bank (Care Credit) 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door, etc.) Served 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Nothing - other than a DV request (8 months ago) 9. What state and county do you live in? Hamilton County, TN 10. When is the last time you paid on this account? (Looking to establish if you are outside SOL) 02/2016 11. When did you open the account (Looking to establish what card agreement may be applicable) 10/2014 12. What is the SOL on the debt? 6 years 13. What is the status of your case? Suit served? Motions filed? Served four days ago. My Sworn Denial (TN's Answer), MTC (with Affidavit, Proposed Order, and Card Agreement) are ready to be filed within the next few days 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 15. Did you request debt validation before the suit was filed? Yes, I requested DV when they first started mailing letters requesting payment (8 months ago). They responded in a letter with their Disputes Department phone number and instructions to call if I want to receive a payment history. Their summary of information shown below that consisted of my full name, last 4 digits of SSN, and date the account opened 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. An Affidavit from PRA’s Custodian of Records and a table of information containing the following: Account Number, Record Type, Customer Type, Name, Account Address, Home Phone, Birth Date, Loan Type, Charge Off Reason Code, Account Status, Receipt Date, Contract Date, Charge Off Date, Last Payment Date, Charge Off Amount, Accrued Interest, Current Balance, Net Principal, and Net Interest. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: STEPS: This outline is based on my experiences and research. Don't hesitate to add any helpful comments or corrections you see fit. I will revise it accordingly. These are the steps I personally will be taking now and in the future. I'm posting this because my last lawsuit took me way too long to figure out the key differences between TN's process and majority of the cases being discussed here. Plus, I understand lists better and you might, too. All documents mentioned will be attached to this post. If you're reading this for guidance, make sure to read @fisthardcheese Arbitration Overview first for a better understanding of arbitration as a whole. STEP 1: GET SERVED STEP 2: ANSWER THE SUMMONS (MOST STATES) STEP 2: FILE SWORN DENIAL (TN) Download Sworn Denial and fill out appropriately. The deadline is typically 30 days. Make (3) copies. File original with court. If your MTC is ready (Step 3), you may file at the same time. Mail copy (CMRRR) to DBA's attorney. Store third copy for your records. STEP 3: FILE MOTION TO COMPEL (MTC) ARBITRATION Write MTC according to local court guidelines. Reference terms of arbitration in Card Agreement. Include Affidavit that testifies that the included Card Agreement is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise." Include entire Card Agreement from date card was active. (Find yours here) Include Proposed Order to make the judge's job easier. Notarize Affidavit. Make (3) copies. File original with court. Set hearing date for MTC. Mail copy (CMRRR) to DBA's attorney. STEP 4: FILE ARBITRATION DEMAND LETTER Download Demand for Arbitration form and fill out appropriately. (AAA or JAMS, whichever is stipulated in your Card Agreement.) Include a Certificate of Service with the forms. If Card Agreement states that "they" will pay for filing fee, include a cover letter stating that per the agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS. Make (3) copies. If Judge grants MTC, have Demand Form ready to file immediately. Mail Demand (CMRRR) to AAA/JAMS and DBA's attorney on the same date. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: QUESTIONS: Q1. Are my documents satisfactory? I've attached the required paperwork in hopes of getting the community's feedback before I submit them. Please let me know if anything should be revised, worded better, or formatted differently. Q2. What does the following mean for my case and MTC? I am unsure whether I should/must include this in my MTC. On Page 3 of the Card Agreement, under Resolving a Dispute with Arbitration, the clause states: 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 providers that accept the card or program sponsors 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, etc; 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. MTC DRAFT.pdf AFFIDAVIT DRAFT.pdf PROPOSED ORDER DRAFT.pdf Synchrony Bank CareCredit Agreement 2015.pdf
  8. Yeah I definitely would have preferred with prejudice but I know more now so next time around I can handle it better. Yes, it's a completely different form, something they wrote up and sent to me. They didn't say that they also sent something to the court for dismissal so I am calling the court clerk tomorrow to ask the questions and get a clear answer. I would hate to be stupid at this stage of the game and let them swindle me by sending me this and tricking me into not showing up for our next court date and then they show up and ask for a default judgment.
  9. Hey all, it's been a hot minute but I've finally received a response. PRA mailed me a Voluntary Order of Nonsuit to dismiss without prejudice. It isn't signed by a Judge yet and I still need to confirm my court date is scheduled for next month, but I wanted to update my case and hopefully help anyone else in my neck of the woods.
  10. This confirms my suspicions which makes me sick, but I chalk it up to being part of my learning experience. Shoulda coulda woulda as they say. I'm most likely going to have to do this all over again for two other debts that are coming around to get me before their SOL, so I'll be even better and wiser next time!
  11. No he didn't. It looked as though he was conferring with the clerk about needing an order to continue arbitration. Hindsight is 20/20 but I feel like I myself should have gone up and talked to the clerk and asked to have it seen by the judge. Let's hope I get some respondence in the mail soon saying they dismiss. Or rather they sign the form and I get my MTC granted leading to mutual dismissal being required lol.
  12. Damn. I already sent the letter to them immediately after my hearing, but that wording would have been great. I should be getting their response within the next couple of days.
  13. Really? What should I have done instead? It was my understanding that this was the proper course of action and the judge wasn't going to see me at that point.
  14. So my Motion hearing was scheduled half an hour after my regular hearing, so when the attorney repping PRA was going through the 15 or so people on his list out in the hall he got to me and I told him about my pending MTC and he was like okay well I'll meet you in there. Back in the court room I was called for my motion and sent back out to talk to him AGAIN. A little annoying because the only the thing the judge is doing is calling names, I kind of figured I would get called and go up and state my case for my MTC and it would either be granted or not. I went out and talked to the attorney and he told me that its a "Chicken or the egg" situation where I have to file for arbitration with AAA first. I told him "I have filled out forms for filing for arbitration with AAA right here with me ready to file, I am only waiting for the judge to grant the motion." He then proceeded to go talk to the clerk in the courtroom for a minute and then came back to me and said that they don't oppose arbitration so I have to make an order for arbitration and send it to them and they will sign it and send it back to me for me to turn in to the court to be signed by the judge, and in the mean time my court date was reset for May 6th. He also told me that PRA may at any time elect to dismiss the case. I made an order for arbitration and sent it certified mail to the attorneys office so we will see. Court didn't quite go how I had planned it in my head but I don't see it as a loss or anything, just a weird day.
  15. That sounds like a fun thing to do lol. So my court date is tomorrow and I have everything gathered together in a folder including the AAA forms to show I'm serious. Lets cross our fingers and hope they just want to dismiss tomorrow and not drag it on. I went to a day of court just to observe how this particular court works and it seems the judge just calls the names and sends them outside to try and settle before they reach her. It was really sad watching so many people not there when called and the attorneys just standing there with a big list asking for default judgement against every single one of them. I am so glad I reached out to you all back when I got served. On another note I received a letter from PRA trying to collect on a separate debt just yesterday. I'm waiting to see how this one pans out to see what im going to do with the new one.