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About SJULawAlum

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  1. That is correct information. In NY you have to allege facts that the harm done affects consumers at large. I assisted an attorney in bringing a General Business Law 349 claim against a car dealership on behalf of a consumer. I was very worried that we didn't adequately plead harm against consumers at large. Luckily the car dealership decided to defend the case with in-house counsel who was clueless and they folded on the eve of trial.
  2. So this is where I took up issue with the judges order. He put a contingency for what would happen if consumer didn't file the arb, but did not put a contingency for what would happen if Midland didn't go into arb. Technically, the judge can't force a party to go to arb. While the judge can compel the parties to arbitrate, there is nothing stopping a party from not proceeding with arbitration than forfeiting any rights they may have had with respect to the court case. That's why contingencies are put in place. So here, consumer is directed to initiate arb, and if she doesn't court case can be restored. But I am not sure what the remedy is if Midland doesn't follow. Obviously, once consumer initiates Midland will not be open to successfully reopen the case before this judge. We would just file proof we complied with the judges order. But there is nothing stopping Midland from filing another case in court since this dismissal was without prejudice. Yes, the same arguments would be made again and we'd be right back at square one... but that theoretically could happen.
  3. So I wish I could offer some advice to you now that you are there, but I can't. I can help someone get a court order compelling arbitration - but navigating AAA is not really something I know how to do.
  4. Yes, I do not really ever think defendant's have a reason to file the RJI and pay the fee. That's $95 they should pay and not you.
  5. They may still have a way to connect with Citibank to get documents but who knows. What are you doing to get the Court case stayed or disposed?
  6. Maybe do some research. Since you are very far away from me (Monroe County) I can't really help you that much. But if you want to check out a case where a judge ruled issued an order compelling the parties to arbitrate check out 601500/2019 in NYSCEF.
  7. Well, I haven't been an attorney long. But I have never seen any debt buyer in NY doing field trips to OC to get acquainted with their business practices. That would present interesting legal issues to litigate though. In the case law I've read, it is pretty clear that only having custodian testimony, without more, is not enough in NY. I know a collection attorney who represented a medical JDB. He told me the JDB and the medical provider had an agreement that the medical provider would be available to provide affidavits for motions and show up at court appearances to testify. I have NEVER seen that among the consumer credit plaintiff's and JDB's. I've handled about 5 JDB cases now. When I have pressed them for names and addresses of witnesses to appear at trial; and have taken discovery seriously; they have all folded. They know they can't prove their cases and go for the low hanging fruit. I've gotten three dismissed via agreement, one was for a sum of $33,000. And today I got one dismissed via a judges order where the judge denied a JDB summary judgment and granted the cross-motion to compel arbitration.
  8. Hi @MIOMH, I am @usctrojanalum my account got messed up where my email was locked out so I made a new account. Wish I was around earlier to give you some guidance here. Do you have the sense that Midland is going to go through with the arbitration?
  9. Nothing for you to do right now, but if you have any questions. I can help.
  10. Hi all, this is usctrojan here. Had to make a new account because my old one got like stuck in cyber never never land. Excited about my first win in a consumer debt case. No, a debt buyer can't use their own custodian. They need a witness from original creditor to authenticate OC's records. A good example of this is found in Unifund CCR Partners v Youngman, 89 A.D.3d 1377 which states "plaintiff submitted an affidavit of its agent, a “Legal Liaison” employed by plaintiff rather than Chase, along with exhibits that included credit card statements and account balance documents from the business records of Chase. We reject plaintiff's contention that it thereby submitted the requisite business records to establish its standing." Since custodians of debt buyers will not have knowledge of the OC's business practices, they will need a witness from the OC. Authenticated documents is another term that means documents that are in admissible form. To qualify a document as a business record, need someone with personal knowledge of business practices of the OC. Again, JDB custodian won't have that. Default judgments are entered by clerk's and not judges, so most default judgments are entered with documents that are either not authenticated or with witnesses who are merely JDB custodians. Summary judgments are contested cases (you can't have summary judgment unless defendant filed an answer), but some who are unrepresented might not know how to advocate that the evidence submitted is not in admissible form or sufficient to meet a prima facie burden.