SJULawAlum

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SJULawAlum last won the day on October 30 2019

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  1. You can amend your answer with 20 days of filing it, you can do so. Definitely add arbitration in there as an affirmative defense. Part 28 arbitration is court ordered arbitration where it is a bunch of retired lawyers and judges who arbitrate the smaller cases in the court system.
  2. I have written a blog post on the subject: https://www.arpinolaw.com/examining-the-use-of-private-arbitration-in-debt-collection-lawsuits In July of last year I helped someone from this forum beat a JDB by using arbitration as a defense.
  3. Yeah, that is a form of a debtor's exam, but not the most effective one. New York has that too. We call it an information subpoena. Information subpoena's can tip off a debtor to conceal assets and make it tougher and harder for the creditor to find assets. For example, if you show up to a debtor's exam deposition and disclose that you have $10,000 in a taxable brokerage account at E-Trade; the smart collection attorney is going to text someone at their office to prepare a garnishment to serve by the time the deposition is over.
  4. I would say a judgment debtor's exam would be pretty rare on smaller consumer debts. The most likely used methods are bank garnishment, wage garnishment, and placing a lien on real property to be paid off at a later date. A true debtor's exams can be expensive because of the use court reporters. I have a colleague who works at a creditor's rights/collections firm. He has told me that collection proof now does not mean collection proof forever. He said many people who call themselves collection proof are also beneficiaries on life insurance policies, may later win a personal injury award or settlement, or as WC1000 said - later receive an inheritance.
  5. Definitely respond to them. It is rare for discovery demands to be filed with the Court.
  6. My response was "look, in the grand scheme of things, this is only a speeding ticket." He laughed out loud and the phone call ended shortly thereafter.
  7. Last update. I must be careful with what I disclose because there is an NDA in place, but the NDA solely relates to settlement terms. We did not get the closing/settlement papers back before the October 15 deadline set forth in the judges order. Shelly, being ever diligent, knew not to mess around and filed her arbitration on deadline day. JAMS later emails everyone saying a case has been opened. The very next day, Creditor's attorneys send an email to JAMS saying the parties have agreed to a mutual release and have settled the matter. JAMS says, in sum and substance, yeah that's great but the filing fee is still due once a case is opened. LOL. Shells of course immediately paid her portion, but I got 3 phone calls from creditor law firm basically saying what the heck. LASTLY - I have told two clinics about the outcome in this case and gave them redacted copies of the pleadings for their use. Both clinics have thanked me and said that this is a very clever strategy to use. So hopefully the word spreads on this and more consumers can use this rather than automatically being dismissed by volunteer attorneys and law students. I know that was a problem for some people who have used NY's CLARO program before.
  8. I am sorry to hear you had that experience. Block billing is a problem in the legal industry because (1) billing time is not itself billable and (2) lawyers try to maximize as many hours billing cases as possible so they might just put "hearing preparation - 7 hours" but that is not appropriate. It should be more like: hearing prep reviewing documentary evidence - 1 hr hearing prep research that the law is still valid - 1 hr hearing prep - interviewing and preparing a witness to testify - 1 hr At least it is over and you have finality.
  9. It's not an easy legal concept to grasp. The court can direct the parties to arbitrate, but it has no power other than to dismiss a case if Midland refuses. The Court doesn't have the power to make Midland pay a fee of $1,250 if it doesn't want to. That would be akin to indentured servitude the Court doesn't have that power. I was contemplating the remedy in the case that OP paid the $250 portion of the fee and Midland did nothing. In that instance I would make a motion to reopen the case, and as a sanction, request reimbursement of the $250 paid. But that would be it. If the situation was one where a Court ordered Midland to arbitrate AND initiate, and Midland did not initiate, would be tough for a judge to issue a sanction on that.
  10. Midland's attorneys got a letter from JAMS requesting a $1,250 fee. Amazing how quickly Midland came back with a stipulation of discontinuance with prejudice and a full release of the claim lol.
  11. Also interesting, he swore under oath in the state court action that the debt was not his. Then in the Federal Complaint he alleges that the debt was incurred for household purposes. So the irony of it all is, and we will likely never know this answer, if he perjured himself in the State court action it actually foreclosed his ability to win any damages on the FDCPA claim.
  12. It's nearly impossible. The only scenarios I can think where this would be possible is if a family member had a similar name and a debt collector went after the wrong family member for a debt the other family member incurred. In that situation, the incorrectly targeted consumer could use his family member's testimony to establish the nature of the debt. But if we are talking a situation where the consumer targeted has no idea who the actual debtor is - I can't see any way they could prove the nature of the debt.
  13. That stipulation should be e-filed. Under CPLR it is defendant's obligation but Plaintiff's usually do it in these cases.
  14. Well nothing in that discontinuance would prohibit them from reporting it accurately. You could make the argument to the CRA's that since you got a dismissal with prejudice, it essentially can never be brought again and should be removed.
  15. Attorneys will never sign stipulation first because they fear you will hand write additional language without their knowledge or consent and send it back to them. That second paragraph is to protect them if they bought any other accounts that they have not sued you on. You got a dismissal with prejudice on a $18,000 case. That's a pretty significant win. I am obviously not you're attorney so I am not giving you legal advice but you should be proud of that.