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SJULawAlum

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Everything posted by SJULawAlum

  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 parties to arbitrate. My client paid the consumer $250 fee with JAMS, and Midland sought to withdraw the arbitration. JAMS said that's great, but you still owe us $600 as a cancellation fee. Attorney's for Midland were not happy lol. 2020 - I assisted another client, against a debt buyer (the name escapes me) with a motion. He wanted to bring the motion pro se and just have me give him a template. After he served the motion the creditor voluntarily dismissed the case. 2021 - Midland claim for $2,900 - Client did not have copy of cardmember agreement. I demanded it in discovery, and it had one of the best arbitration provisions I ever saw. Brought the motion to compel, a week later Midland voluntarily dismissed the case. 2021 - Capital One Bank for $8,000. Capital One brought summary judgment. In the summary judgment motion, they attached a cardmember agreement that said arbitration can be demanded at any time. Of course, I cross-moved to compel arbitration under JAMS. That motion is pending for a decision. The court is so far backed up, it will probably take until June or July of this year to get a decision on the motion. I have around 12 other cases where I have answers filed and the cases are kind of in COVID pending purgatory. What I've learned in making these motions to compel: You need to have a way to authenticate the cardmember agreement is the actual one that was in effect. This can be done two ways, by the consumer keeping the agreements that are mailed (or emailed to them) OR by getting the cardmember agreement from the Plaintiff in Discovery. The latter is more common. I only had 1 client who kept all the cardmember agreements throughout the years and I was able to authenticate the agreement that way. If the creditor turns over a cardmember agreement that has a great arbitration clause, then its very easy to authenticate - I just have my client submit an affidavit saying "I stipulate the the cardmember agreement provided by the Plaintiff is authentic and the agreement was in effect when the account when in default." If you are going to go this route, you kind of need to admit that you had a credit card with the plaintiff and that the account is yours. This can be risky, because judges are human and judges might not want you to get away with not paying a bill over a technicality. Fortunately I have not run into that problem yet because most judges in NY are very liberal, and most judges want these cases off their docket and would much prefer to have them heard in private arbitration. I think I am the only attorney in New York pursuing this defense and winning with it. I know attorneys are legal aid, law school clinics, etc., and I share my motions with them but they don't seem to think it's a viable strategy. But I've already got close to 10k in consumer debt wiped out using it. If anyone has questions about bringing these motions to compel, feel free to ask me. I check these DM's weekly.
  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: 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.
  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 award or settlement, or as WC1000 said - later receive an inheritance.
  16. Definitely respond to them. It is rare for discovery demands to be filed with the Court.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. That stipulation should be e-filed. Under CPLR it is defendant's obligation but Plaintiff's usually do it in these cases.
  25. 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.
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