Banana

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Everything posted by Banana

  1. Beautiful! You did so great! If I can just get past this hurdle of writing the memorandum if points and authorities and declaration that my darned County requires for the motion, I think I'll be OK.
  2. Wow! You did fabulously, congratulations! Did you end up making counterclaims in the arbitration paperwork, is that why you think they agreed to pay your fees? You are giving me encouragement that this can work. Thanks for coming back to share! Banana
  3. Ok so I apologize, went home double checked the downloaded file. It's right there. The one I pulled was from 9/2018. I don't know what my problem was that I didn't see it. Must have been looking at this stuff too long! (Believe it or not, I'm actually not a total idiot - I apparently just can't read what's in plain English! *Embarrassed*) Sorry!
  4. @Brotherskeeper @Harry Seaward Weird. It is on my laptop at home. Downloaded from consumer protection bureau. I'll post it later today. It still has the Arb clause but doesn't specify aaa or jams now. I figured they are sick of losing their oppositions to mtc's and figure court appointed arb's will be cheaper.
  5. Of course this comes as I am currently tearing my hair out over drafting my MTC w/ Midland. This puts the fear of God into me. I hope this is because it is the same lawfirm handling the OP's second debt and not because this is their new strategy. I was worried about dealing with their opposing my motion, but if they actually followed me in, I would be hosed. In CA, this makes me think maybe defending would be wiser. I'm going to stay tuned here to see if they pay the second bill. I thought in JAMS the arbitrator can award the Arb and atty fees to be paid by the loser? Isn't it only AAA that their am terms say their fees can't be assigned to the loser? Oh, but remembing it was Synchrony, they pay fees even if he loses right? Interestingly, I looked at the most recent synchrony agreement for a Gap Inc cc, and they have taken JAMS and AAA out of the contract.
  6. Woo hoo! If my mtc gets tossed, I might be needing this in California! Thanks for posting!
  7. Thank you, @nobk4me The further I go on this, the more I worry I will not compose this correctly. In my court they use a tentative ruling system, so I have to submit a notice of Motion and Motion, Memorandum of Points and Authorities and Declaration (and the order). I will be ready for the bar when (if ) I get this done. Essentially I have to make the whole argument for the motiin in the documents I file. I'm pretty intimidated and doubting my ability to get this right. Last night I read about "landing" the citations, and that if you don't include this the court can disregard your citations. I'm not sure if that is done in my local court. There is nothing about landing citations in the "how to" instructions I located for filing a motion in my local court. I am afraid of putting the statutes in the wrong order or citing something incorrectly and the other side using my technical error to have the whole thing denied. I have been reading "Represent Yourself in Court" by Paul Bergman. It's not specific to CA, but has a lot of good info that has been helpful. The other side hasn't sent any discovery requests and hasn't contacted me to agree on possible trial dates (we are supposed to confer, and submit an online form with 3 agreed dates). I haven't scheduled the hearing for my motion yet because I'm not sure how much longer it's going to take me to draft the rest of it. Reading tonight that Midland paid the fee to follow the Kentucky fellow into Arb has me more than a bit concerned. I hope when they get that second bill they will fold. I will be following his thread closely.
  8. Hi all! So I am drafting my MTC, and I paused when I read the passages from the sample MTC (copy pasted below). My question is are there supposed to be blanks here: Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3) and here: see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). from this: 6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " @fisthardcheese
  9. That's scary since they seem to be getting closer to success with their arguments. I'm glad I am at least braced for them to respond. Forewarned is fore armed. Their affidavit from the OC is on the opposite coast, so I'm hoping I can use the CCP 98 strategy of trying to subpoena the witness for deposition if my MTC is rejected and I have to proceed in court.
  10. Hello! Thankful to hear from another Californian! Thank you for reading my post and taking the time to answer. In Sac, there is a motions judge who hears motions, but I'm unsure if there is more than one judge (I would think so). I can still try to contact the clerk in the department, so thanks for that suggestion. I have looked up where I file it (not in the main courthouse), what it must contain, and the format required. Looking at the update on what day's filings the court is working on, my response should be posted in the next few weeks. I think I have to wait for that because I think they will assign a trial date at that point. Then I can count how many days ahead I have to schedule the hearing for the motion to give enough time for the other side to respond before the hearing. I am just anxious to get my MTC filed before they send their request for discovery. I'm not sure if they have to wait for the answer to hit the docket before sending their requests. I don't really know all the details of how this works. Banana
  11. I am following, since I just answered Midland in CA with General denial listing lack of jurisdiction as my only affirmative defense. I am watching closely these 2 threads (busy mom's and this one.) I have been wondering how much information sharing happens between Midland offices across states. I have not filed mtc yet (I'm trying to figure how whether I have to wait for the court to post my answer before filing the motion, even though when they post, it will be backdated to the date filed.) Anyway, I will be anxious to see what er the attorneys in CA will oppose the motion.
  12. Good morning. I'm checking my court rules (Sacramento County - Civil Case) and Motion to Compel Arbitration is not on the quick reference sheet. I am trying to figure out the required amount of time to do everything (notify the other side and such). I attached the guide. Also, the court hasn't posted my answer to the docket yet, so there is no trial date. Do I have to wait until the answer is posted to set the hearing and file the motion? Thanks for your advice? Banana @Goody_Ouchless, @fisthardcheese@Harry Seaward, @calawyer motion-quick-reference-list.pdf
  13. Ok, so this strategy is still viable if the witness's address is over 150 miles from the court the case is filed in? (I am going the Arb route, but Midland has been pushing back on MTC Arbs recently from what I see here, so I want to have a plan B. This strategy looks like my best bet if there isn't new case law to shoot it down.) Thanks, @BV80 for jumping in to clarify!
  14. Edited: Wanted to ask a question on this topic. I am not entirely sure, but if I am understanding this article correctly, the CA Supreme Court ruled in Feb 2019 that the [CCP 98] witness does not have to be able to be served personally within 150 miles? Here is the report I found about the Supreme Court decision. https://www.severson.com/consumer-finance/district-court-cal-says-ccp-98-declaration-in-underlying-state-court-debt-collection-action-did-not-violate-fdcpa-because-declarant-was-out-of-state/
  15. I read your response yesterday morning but didn't get to respond until now. I appreciate you writing back. Thanks for your help. I will submit the answer next week. I found a guide from sac law library website on proper way to write a motion for our court rules so I will file that at a later date. Thanks again!
  16. Thank you so much for your reply. That makes total sense to do it that way. Looking at my court rules and the motion tutorial from the law library website put me into a dang panic attack. The motion has to be different than the examples here. Intimidating. I hope I can get it right. It will take me longer to do the motion, so I am going to file the answer so that's done and then work on the motion. In my court, they give a tentative result and if no one has said says they want to show up for hearing, this just stands. If they send me a giant opposition to the mtc Arb like midland sent to one of the other posters here recently, I'm going to freak out. Banana
  17. Ty!! So would you think I'm OK to go stay w/ general denial that's completed already (but not filed/served? In my court I can't file answer and mtc simultaneously because they are filed in different buildings. Do I have to the mtc right after (within a day or two) of answer, or can I take some time to draft and file it later as long as I put it as an affirmative defense on answer? (Or do my court rules determine this?) Thanks for helping.
  18. Hi guys, I posted a prior thread but not getting much response. I initially intended to settle without an attempt to defend or arbitrate, but now I am trying to figure out the mtc arb route. I rewrote prior posts trying to shorten/clarify/be more specific with my questions, and bumped. I'm not confident I can successfully get through this process w/out some help, even though I have poured over this site and Googled until I am exhausted. I have only until tomorrow to pay the settlement agreement that I negotiated with them, so I have to go one way or the other by end of tomorrow. Can anyone help by answering my questions and checking out my affidavit draft on original thread? If no one has time, I think I may fold and pay current agreement. I am not confident in pulling off fighting them without being able to check in and get help on documents. I have to answer either way to protect against judgement, which is why I was thinking heck with it, I may as well fight. If they won't walk away, maybe they will offer a lower settlement (offer currently around 80% and they won't budge further, but I haven't answered complaint yet, so they figure they don't have to go lower.) All info on original thread. JDB is Midland, op is synchrony with arb clause. California (possibility of cp98 visitation defense too, but that's a lot of paperwork to file without screwing anything up, so if they most likely won't follow into arb, I think I'd prefer that route.) I'm truly grateful for any help you can offer.
  19. @RyanEX @sadinca Ok so I'm finishing up my affidavit (which I know requires a notary) stating the cardholder agreement is true and correct, etc. so I can submit it along with my answer and MTC along with the cardholder agreement downloaded from the consumer protection database. In the arb forum in one of first hard cheese's threads, there is a directive as follows: "It needs to state that you are making the statements under penalty of perjury, that your statements are based on your personal knowledge of the account and records, that it was your account and that the attached agreement was in effect during the life of the account. It also needs to be notarized ("subscribed and sworn to before me") to have any effect." If I am answering with a general denial I am afraid to say that it was my account in the affidavit, since that seems contradictory. Here's what I wrote. Will this work with that part left out? Is it ok for the affidavit to not be on pleading paper, or is that answered by my local court rules? [court header] AFFIDAVIT I, [ ]California, MAKE OATH AND SAY THAT: The attached "GE Capital Retail Bank Section 1: Rates and Fees Table, Gap Inc. Visa Card Account Agreement, Pricing Information", Exhibit A, is a true and correct copy of the contract that governs the account from which Plaintiff's allegations arise The attached agreement was in effect during the life of the account. This statement is based on my personal knowledge of the account and records. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
  20. Ok, I keep reading here and I finally saw that I entirely missed the "unverified" part of whether I am allowed to file a general denial. As there is no statement under the atty's signature on the last page of the complaint, I think I can file a general denial afterall. (Which is a relief.) I am going to work on that now. (I realize I am only answering myself here, but I am hoping someone will pop in and catch up who can assist as I go along.) Banana
  21. Input is appreciated. I am really unsure as to whether the best move is arbitration (synchrony) or try to fight alla Medic's example (CA, using ccp 98 and serving the witness to try to get the affidavit tossed.) Medic paid a whole lot of filing fees out of pocket. That's also a heck of a lot of paperwork for me to have to get right (leaving lots of opportunity for error). So maybe arbitration is the way to go. I would hate to have to appeal if I end up with a judge that doesn't follow the rules and ignores the rules to smack me down. On CP 98 strategy, doesn't the whole thing hinge on not being able to subpoena the witness? What if I am able to serve the witness? Then I hope they either a. don't show up for deposition or court, or b they are not the proper title to testify? I am unsure whether arb has to be listed as an affirmative defense on tge answer in order to not waive the right to arb? If arb isn't mentioned in tge answer, I read that I have to submit the petition to compel arb at the same time as I file my answer. Is that true? Because I was hoping to just do tge answer and buy some time to consider which is tge best way to go.
  22. Thank you for your input, Nob. Since I am going to have to fork out the first paper fee and put effort and time into filing an answer, I may as well make it good. The settlement they are offering is not good, (pay over 75%). Here are some questions. I'd rather use the general denial because it's hard to mess that up, but I wonder if I would be better off NOT using the general denial because instead of uniformly denying everything, I can selectively use the "Defendant is without knowledge and information sufficient to form a belief as to the truth of the matters alleged in Paragraph 1 of Plaintiff's complaint and therefore denies same." verbiage? I am afraid in using a general denial, I would be denying things that are contrary to the evidence they already submitted into evidence. For example, they complied with 1788.52 and informed me of the assignment of the account. (They have attached a copy of the assignment letter as an exhibit). If I deny that, via general denial, it makes me look like I'm lying. I'm not sure what to do.
  23. When I first started this thread, my intent was to settle the account. I had negotiated a settlement amount, and Midland sent me a settlement agreement. I advised them that I would review it with my attorney and could not agree to the settlement until I saw the agreement language. Now, I think that since I have to file an answer to protect myself from judgement whether I pay the settlement now or not, I will not pay it, and will fight instead. I am torn as to whether to defend or try the arb route, but leaning towards trying to compel arb. I have been working on the answer and affidavit swearing the cc agreement is the true and correct agreement, but I have some questions. First though, the forum questions about the case: 1. Who is the named plaintiff in the suit? Midland 2. What is the name of the law firm handling the suit? Midland 3. How much are you being sued for? approx 5k 4. Who is the original creditor? (if not the Plaintiff) Synchrony 5. How do you know you are being sued? (You were served, right?) Received service by mail. Substitute service. On proof of service due diligence form, the process server lied about having served adult co-resident fitting my description. (That never happened.) Then he mailed the papers. That said, I don't think it's worth doing a motion to quash service because they'll just serve me again. 6. How were you served? mail (substitution) - see above 7. Was the service legal as required by your state? see above Summons Complaint - Rule 3.70 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Rec'd notice they purchased debt with payment demand. 9. What state and county do you live in? CA, Sacramento County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) not outside SOL 11. When did you open the account (looking to establish what card agreement may be applicable)? 2013. I believe I have downloaded the proper card agreement from Consumer Protection Bureau 12. What is the SOL on the debt? To find out: 4 yrs 13. What is the status of your case? Complaint & Proof of service filed, I haven't submitted my answer yet and there is no hearing date set. 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? 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'). no 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? Since substitute served within CA I believe I get 30 + 5. If so, I have 11 days left. 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. *Bill of sale from Synchrony to Midland *Purchase Price Reconciliation /Funding Instructions (“This FORWARD FLOW ACCOUNTS PURCHASE AGREEMENT is made this [date]) *Affidavit of sale of account by original creditor *Certificate of Conformity * a screenprint w/ acct info captioned at the bottom “Account information provided by Synchrony Bank pursuant to the Bill of Sale / Assignment of Accounts transferred [date] in connection with the sale of accounts from Synchrony to Midland. “ *the initial notification to me that the account was sold to Midland, demanding payment *two billing statements from the OC *copy of Notice of Legal Placement notifying me it was transferred to the legal department *Superior Court Alternative Dispute Resolution Information Package *Blank form CV\E-203, Stipulation and Order to Arbitration/Mediation Limited Civil Cases 18. How did you find out about this site? Google search It appears the suit is not verified, therefore I plan to prepare a General Denial. The settlement agreement they sent me to review gives me until 4/26 to pay. I have not contacted them since having received the agreement. They did not specify in the agreement that they will dismiss after the payment is made. (The agreement they sent is on their letterhead.) It says: You have agreed to pay a total settlement amount of $x. As of the date of this letter, your remaining settlement balance is [all of] x. Please see add'l page for settlement term details. This settlement arrangement is made in good faith and is contingent upon payment of the total settlement amount. If the payment instrument is returned “not paid” for any reason, this letter will be null and void. In the event you fail to make all payments on time and as agreed, this agreement will no longer be valid and further legal activities may follow and a judgment may be entered against you. As a result, you may owe more than the balance shown in this letter. *** The attached page has the account number, and says, "The settlement terms you have agreed to are as follows: One-time payment $x by personal check due on [date]." It sounds like I have a good chance to prevail if I can get the MTC Arb granted. I will need help with reviewing my drafted paperwork though. I'm hoping some of you here will be able to help me out. Thank you for reading my post!