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SJULawAlum last won the day on March 9

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About SJULawAlum

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  1. I don't get involved in the arbitration process itself. My agreements with my clients, and they understand, the value of the strategy is to get the creditor to drop the case and not pursue arbitration. In the unlikely event that a creditor chooses to go into arbitration, my client would be on their own with that. So far out of the small about 5 cases I have done, no creditor has gone into arbitration. All debt buyers have just voluntarily dismissed the case, and the Cap1 case is pending for a decision that I hope to get sometime in 2021.
  2. This is possibly what happened, but the default occurred sometime in 2017. So the new agreements that were in effect at the time, theoretically, would be the ones that govern. But there is nothing stopping from a defendant to consenting to an incorrect agreement if it helps your cause.
  3. Yes. I had my client sign an affidavit, stating in sum and substance, "the cardmember agreement attached to Cap 1's motion is the true and correct agreement that governs this dispute." So, in essence, we stipulate that the agreement they provide is the one that controls.
  4. I seem to remember Capital One removing forced arbitration from their agreements too. But this is an industry that is known for it's laziness and sloppiness. I would not be surprised if they attached an incorrect agreement to the summary judgment motion. I checked on the Cap 1 case today. These motions were filed November 2020, and they are not going to be submitted to a judge for decision until June 2021.
  5. Hi guys, I know it's been a while since I've been here. I am coming up on being an attorney for two years (crazy how time flies). I have steadily been building up my consumer debt defense practice and have about 15 active cases. I wanted to give an update on the cases where I have used a motion to compel arbitration. 2019 - Midland Claim for $3,400 - I brought a cross-motion to compel arbitration in response to a summary judgment motion by Midland. Midland fought hard against the arbitration motion and made terrible legal arguments. Judge denied summary judgment and directed the
  6. I used to Volunteer at Westchester CLARO when I was a student. Did they already sign it? If yes, you can sign and send it to the Queens County Civil Court by the EDDS system. If not, sign the copies and send it back to them. They will file it with the clerk of the court.
  7. You can just address it to the group itself, you don't have to address it to an individual attorney. You can put either attorney's name as a "Attn: Name here"
  8. Those are still considered court appearances. You should make the motion.
  9. I have used arbitration to get these cases dismissed a couple of times now in Courts in New York. 3 to be exact. But honestly, 5 court appearances might put you in a tough spot. You can still argue it, as you have much more to gain than to lose. However, there is case law in New York that if you participate too much in the court process you waive the right to arbitration. You might be able to get around this if you never even knew an arbitration agreement existed, and only recently got it - but 5 appearances in court is going to not be great for your side.
  10. Not looking to pat myself on the back (okay maybe a little), but we got another win here. After Plaintiff's attorney received the motion, the OP received a voluntary discontinuance of the lawsuit in the mail.
  11. Thanks for posting this. That Casillas case is brutal from the 7th Circuit.
  12. 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.
  13. I have written a blog post on the subject: In July of last year I helped someone from this forum beat a JDB by using arbitration as a defense.
  14. 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.
  15. 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 a