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Everything posted by NetworkEngineer

  1. You will need to locate your card's card member agreement and see if it has an arbitration clause. That's the key to this entire motion. A good place to find cardmember agreements is here: https://www.consumerfinance.gov/credit-cards/agreements/ Once you locate your cardmember agreement (and you verify that it has an arbitration clause), Fill out the Affidavit of <your name> and have it notarized at a Notary. This is the only thing you will need to have notarized. I think I posted a redacted version in my docs earlier in this thread. If I didn't, let me know. Include it with your Memo of Points & Authorities along with a copy of the cardmember agreement you found above. You need to send these to the plaintiff and have the person who sent the docs complete the proof of service (can't be you.). Next, file a copy of the docs you sent to the plaintiff with the court, including the completed proof of service. Good Luck ! - NE
  2. A quick update: Following Firsthardcheese's advice, I sent the mutual dismissal letter and I was contacted by the JDB's lawyer. We agreed to a mutual dismissal with prejudice and a removal of the trade line from my credit report ! I checked the court website and saw their dismissal was filed on Feb 27th. I agreed to dismiss my arbitration (which I advised AAA to do). So Wow - this is a big relief. I could not have done this without the help of this forum - Thanks everyone ! I'll still be checking in if anyone has any questions or if I can offer any advice. I posted a copy of all of my redacted docs earlier in this thread.
  3. Thanks for the advice. I have it written and will be mailing tomorrow.
  4. A Quick update: I finally got a response from the Arbitration folks. They sent a letter (and CC'd me) to the law firm representing the junk debt buyer informing them that a consumer arbitration has been filed and the consumer fees of $200 were paid. They are asking the JDB to pay $2,800 for the case to move forward ! They only have a couple of weeks to do this. I'll post an update when I know more.
  5. My Motion to Compel Arbitration was granted a couple of weeks ago. I promised a few other members of the forum I would post a redacted copy of my court docs. So see below. Obviously you will want to fill it in with your own information. In the Case Caption section (Page 1 of most of these docs where it lists VS. your name), you will want to make sure you enter the name exactly as it appears on the complaint you were served with. In Los Angeles County, anyone can sign up on the court's website to submit documents electronically. If your court has this option, I would suggest using it as it's a time-saver. Lawyers are REQUIRED to use it, but folks like us are not required to do so. You can also reserve court dates using this system. For example, after I was served, I filed the Motion to Compel Arbitration instead of filing an answer (you can do this in California, per CCP 1281.7. While working on typing up your MTC, you will need to get a hearing date from the court. Using the online system, I picked a date that was about 45 days away. If you don't go the online route, you should be able to telephone the court and ask the clerk if you can calendar your MTC. Be sure the date is far enough in the future that you have enough time to serve the opposing party AND file your proof of service with the court. Although not required, I always have the person who does my mailings send them Certified Mail, Return Receipt Requested (CMRRR). This way you have absolute proof they got it. I'm around to answer questions. I'm not a lawyer by any means, but I can tell you what has worked for me. Redacted Motion to Compel. Arbitration.pdf Redacted Order to Arbitration.pdf Redacted Memorandum of Points and Authorities in Support of MTC.pdf
  6. In my particular case, I filed a Motion to Compel Arbitration (MTC) instead of an answer or general denial. From reading thru the California Code of Civil procedure (1281.2), I don't see anything that would prevent you from filing a MTC. I'm going to be posting all of the paperwork I used to get my MTC granted by the court (will post tomorrow evening 1/14/20), but you shouldn't simply cut and paste my motion - you will need to alter it a little for your situation. Since you had mentioned you applied for a fee waiver, have you considered contacting a lawyer referral service in Orange County ? Many of them offer "Pro Bono" (free) services to low income persons. This will get you started: https://www.justia.com/lawyers/california/orange-county/legal-aid-and-pro-bono-services That said, I'll post a redacted copy of my paperwork and I can answer any questions you may have on it. It seems like a lot to learn, but myself and others here have been thru this process.
  7. Thanks Harry for your advice. Another note regarding Arbitration fees in Calif, also in Calif. Code of Civil Procedure 1284.3: If your income is less than 300% of the federal poverty guidelines, you automatically qualify for a fee waiver.
  8. A quick update: Today was the hearing for my Motion to Compel Arbitration and Stay Proceedings. My Motion was granted !! If anyone wants it, I'll be glad to post a redacted copy of my paperwork. (This is for Los Angeles County in California, but everything in it is valid statewide.) Speaking of which, in my MTC I had included a proposed order. In the days before electronic filing, this would have probably been OK. The judge asked that I file an order for arbitration separately (within 5 days) and he would sign it. The court also scheduled an OSC for Arbitration 6 months out. So I basically extracted my proposed order from my MTC and filed it today. After that is signed by the judge, I have to serve it, along with the OSC notice, on opposing counsel. Speaking of opposing counsel - they never showed up ! The way this court works is that a JDB will have several cases that one lawyer will handle. When the cases for Cavalry Portfolio were called (my JDB), I expected my case to be in that "bundle". It wasn't. It was a very big relief looking over to an empty plaintiff table. Question for anyone: After I serve the Order mentioned above, should I immediately open my AAA Arbitration case ? This will cost me $200. Or, will the JDB open the AAA case, since it is them suing me. I've read thru the Arbitration section of this site and there's advantages to me filing first (FDCPA violations to start...). Or should I reach out to the JDB directly ? Some other random observations from my day in court: 1. There were over 60 cases on the court calendar today. Most were to obtain default judgments, so yes, most people don't fight back. Most of these were handled between 9am and 12 noon. 2. The lawyer handling Midland Funding requested dismissal on all of the cases where they could not serve the defendant. 3. One lawyer was complaining about having 700 court appearances per month ! 4. There is some type of attorney service that the JDBs use. The JDB attorneys-for-hire log into a web site and can "pick up" cases that are in the queue. This allows them to "pick up" cases being heard in one particular court. Apparently there is scoring or rating system involved so some attorneys will get more (or maybe better paying?) cases than others. I'll update this if anything else comes up. Thanks everyone for helping me navigate this legal maze.
  9. A quick update: Nothing has really changed. I have a hearing on my Motion to Compel Arbitration later this week. I'll update everyone on how it goes.
  10. Thanks. I'll keep a watch out. Funny thing about the JDB's law firm: It was actually another tenant that was served, but she gave the process server her name and subsequently passed the papers to me. On the Proof of Service, the process server checked the "substituted service" box. They included a certification that they followed up that substituted service with a mailed copy of the summons/complaint which I have yet to receive. Not a big deal since I already had a copy of the complaint prior to even being served, but it's a good reminder that I need to keep checking the court's website for new filings, as I can't count on them mailing anything. Looking back, I am really glad I sent my response CMRRR - I just got the green card back yesterday.
  11. Thanks for that timeline. I filed everything yesterday except the POS, which I have. I'll file that tonight. So at this point I guess it's just sit and wait for either the JDB's lawyer to call or show up at the MTC for Arb hearing at the end of December. Reading thru the court's web site, it looks like some of the courts will make a "tentative" ruling on routine motions and on the morning of the hearing, I can ask the clerk what the tentative ruling is. At least if it doesn't go my way, I'll have a few minutes to prepare by reviewing the case law on the cases I cited in my Memo.
  12. Thanks for the timing info. Today I got my affidavit for the card member agreement notarized. I attached my affidavit and the card member agreement to the MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS (had that still in the clipboard...) Another question - many years ago before online filing, it was required that the Proof of Service be attached as the last page of the Motion or whatever was being filed. Is it still done this way with electronic filing ? Reason I ask is that on the LA County E-Filing system one of the options is to file a "Proof of Service" - so it appears it CAN be done separately . I am hoping I can just file the POS with my motion and not pay the additional filing fees for the 2 x POS's I'll need (One for the Motion and one for the Memo). Thanks again for all your help. I have reserved a hearing date between Christmas and New Years for my motion and I plan to have it mailed out tomorrow.
  13. Dgree - Thanks for your input. I'll make a separate doc for the points & authorities. Do you know where I can find information on the "timing" of the hearing on the motion ? The Court Reservation System will let me pick any date, but I am thinking this motion should be in the hands of all parties at least 30 days before the hearing date. Or is it 45 days ? and do I need to allow an extra five days due to it being mailed ? As it stands now, my hearing date is during the week between Christmas and New Years.
  14. I was finally served a few days ago. I have until December to file an Answer. After much thought, I am going with the arbitration route. I think I have finished my Motion to Compel Arbitration. Can someone more knowledgeable than me have a look and let me know if there's anything I should fix ? This is for Los Angeles County in California. A few things I did learn: In California, the MTC Arbitration may be filed IN LIEU of an Answer/general denial. There is no need to file both. This is covered in Calif Code of Civil Procedure 1281.7 I also found something about "there's no need to request Arb from the opposing party prior to filing an MTC". The legal theory behind this is that since the Plaintiff already filed a complaint in Court, the motion should direct the court to take notice that the filing of the lawsuit alone affirmatively establishes such refusal ( I need to add this to my MTC). There's a good article about this here: https://www.pooleshaffery.com/news/2015/january/a-formal-demand-for-arbitration-no-longer-necess/ I cannot tell everyone enough about how helpful and empowering this forum has been. If this thread should be moved to the Arbitration forum, can a mod do this ? Motion to Compel Arbitration - REDACTED.pdf
  15. Hi - I've spent several nights combing this forums here and have learned quite a bit. I've gone thru the ASTMedic and HomelessinCA threads and they are very inspiring. Due to a job loss, I am unable to pay any credit card bills at this time. So I am being sued but haven't been served yet. Here are the details: 1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Winn Law Group 3. How much are you being sued for? Approx $3,700 4. Who is the original creditor? (if not the Plaintiff) Citibank, N.A. 5. How do you know you are being sued? (You were served, right?) Not served yet, but the process server has been out a few times already. Already pulled the summons and complaint from the court's website. 6. How were you served? (Mail, In person, Notice on door) Not served yet 7. Was the service legal as required by your state? See above Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Sent DV to Cavalary and Winn Law. 9. What state and county do you live in? Los Angeles County, California 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) August 2018 11. When did you open the account (looking to establish what card agreement may be applicable)? July 2017 - I found the cardmember agreement and there is an arbitration clause. 12. What is the SOL on the debt? To find out: 4 years Statute of Limitations on Debts 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Not been served yet. 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'). YES 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? not served yet, but the summons indicates 30 days. I believe the clock doesn't start until I am served. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The only thing attached to the complaint is "Exhibit "A", which is a credit card statement (1) that lists a $2,400 balance. 18. How did you find out about this site? Google search The complaint lists 2 causes of action: Account Stated and Money Lent The Citi card member agreement specifies AAA for arbitration. From reading other posts here, it appears that since Cavalry may not be paying the arbitrator, AAA may refuse to hear the case unless I file a Motion to Compel (and of course, the judge grants it...). I'm sure I'll have several questions as I proceed thru my case, but the three main ones are: 1. If I elect arbitration, can I still use the "CCP96 / lack of service of affiant" as one of my defenses ? 2. When I file my answer, I am planning using the general denial. Should I file a Demurrer instead (and point to the cardmember agreement's arbitration clause )? 3. Pros and Cons of using Arbitration vs. the Limited Civil process ? This is where I am really stuck. There seems to be advantages (& disadvantages) to both. A little off topic, but the reason I didn't put the exact amounts above is part of me is wondering if the JDB's lawyer's would ever read these forums and gain an insight into strategy ? Thanks for any input. This is a little unnerving to say the least. Should I contact Winn and arrange an agreeable meeting time to meet with their process server? My kids were home alone yesterday and the process server banged fairly loud on the door and proceeded to open the mail slot on the front door to peak inside. I've told my kids if this happens again to use the mace I put near the front door.
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