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Everything posted by alwayswinning36

  1. 4. However, we will not require you to arbitrate any individual case in *small claims court or your state’s equivalent court*, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, **you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit**, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered * whether small claims, or justice court, whatever the "equivalent" is in your state, you can be sued. ** if you have any decent counter claims, there is a good chance they will be the ones wanting to go to arbitration. And incurring some high costs in doing so, much more than they already have. Which could turn this litigation into a business decision on their part to just cut their losses.** If I am understanding correctly here, Comenity Capital Bank was never at any point in time even someone who owned rights to this account at all? There is a small possibility that this arbitration agreement you shared which looks like it was made or revised 6/20 could just be the most recent. Is it possible that originally it was Comenity Bank you opened the account with? They will push the arbitration agreement that was in effect when your account was charged off, probably. If Comenity just came out of thin air, I would lean on that more than anything. In any case, they should be able to provide proof of the debt changing hands from Comenity to Synchrony, and then to PRA. Unless of course they either don't have it, or it isn't required that they show it.
  2. What potential counter claims have you got? I am glad an attorney told you that, about counter claims. Believe it or not there are folks on this forum who say "that doesn't work anymore". Because that is exactly what I have done. Looked for counter claims, found them, used them as leverage and voila. Scott and Associates is a pretty lazy law firm, anyhow.
  3. I wish I would have seen this sooner, or commented if I did see it. PRA does use auto dialers. Don't let them lie to you. They are registered in Texas to use them and have over 16,000 numbers associated with the registration. I know personally because I had to use excel to match numbers from the list to numbers on my phone bill. My alleged amount was much smaller than yours, and they ended up deleting it from my credit report and all. The only reason I was able to get the list of numbers is the PUC of Texas is kind enough to provide the information by simply asking. @Clydesmom as to using arbitration being frivolous, how is that so when the agreement provides for it? If there is a small claims exception, or justice court exception, perhaps then it could be construed as frivolous. Does the agreement say "once we filed in court your right to arbitrate is null and void"?
  4. When you say "if you notice any" what are the details of the debt in question? It's not exactly an easy question to answer. The FDCPA violations also have a statute of limitations.
  5. Even threatening to throw you in jail I think is a violation of the FDCPA, also. I have received calls, but never emails like that. Usually from some middle eastern voiced person.
  6. The difficult part for you would be proving they called from a number that is considered an automated telephone dialing system to claim under the TCPA. Where I am in Texas, they have to be registered with the State and have a permit to operate the ATDS. And all I had to do was contact the Texas public utility commission and ask for the registration info. PRA has over 16,000 numbers. Did you hear any clicks, beeps, did it take a second for the person on the other end of the line to come on? TCPA is separate and apart from the FDCPA. Just because they are a debt collection agency doesn't grant them rights to break the TCPA. This is all of course assuming in hypothesis that the number they have IS NOT the same number that you provided to the original creditor and that you did not provide your number to PRA. If it was, then your ship is sunk, at least on the TCPA avenue of things as that consent is extended to collectors, etc. You would actually have to send a certified letter, cease and desist telling them to stop calling, also. Whether or not previous consent could be revoked is something an attorney could answer with certainty. As far as the time zone thing, I wouldn't think it would be your responsibility to hold someone elses hand and make sure they are compliant. 8pm means 8pm. Not 8pm their time where it could be 10pm your time. Or vice versa.
  7. Pre-legal notification has more bark to it than it does bite. Its basically just a warning of what they "may" pursue if you don't pay up. Doesn't mean it is carved in stone they would or will sue. Is this the first contact from the debt buyer that you received? Arbitration is you electing to use arbitration rather than court, should the debt buyer file suit against you. The debt buyer or collector is bound by the same terms as the original creditor, which in your case is Citi. The question for you, is when was the debt charged off? That is likely the card agreement they will be pushing to use in terms of arbitration. Many arbitration agreements however have an exception for small claims. Meaning that if the debt buyer sues you in small claims court, you may or may not be able to get by with using arbitration. Arbitration is a tactic many of us have used to essentially make the debt buyer make the business decision of just letting go of the debt and not pursue it any further. So if or when you are sued, you'd use the arbitration defense. I think you may be able to elect that sooner rather than later even, i.e. reply by November 17th electing arbitration and see what happens. I am sure someone else more knowledgeable and well versed will chime in soon.
  8. If you are in district court, I wouldn't do anything pro se there. You truly need either an attorney or at least the guidance of one. You say "lost my chance at Arb. through faults of mine". How are you sure you lost your chance? And when it comes to a court higher than small claims, refer to that word "faults" in your previous statement I quoted, please.
  9. Your arbitration agreement or card agreement in entirety wouldn't be the one in place at the time the account was opened. It would be the one that was in effect at the time the account was charged off. You can find the agreement that was in effect at that time (of charge off) at the CFPB website and searching the card agreements. I would find and review that agreement and if arbitration is stated and there isn't a small claims exception I would file an answer to the case, as the court said you now must, and file a motion to compel arbitration providing a copy of the card agreement (again the one in effect at charge off) to the court. I personally would use the defense of lack of subject matter jurisdiction and/or improper venue and cite the arbitration agreement. However, I am in Texas. There are some helpful resources such as question sites you could go to. Some may be free, and some may be paid where you can ask a legal question and pay either a monthly or single use fee. It is often much cheaper than a consultation with an attorney. You could also try consulting with a consumer protection attorney in your area over the phone, however, most of them if not all will almost certainly not really answer your question without you paying them in their office for a face to face consultation. If BC of DEL denotes Barclays of Delaware there is an arbitration agreement, however, there is also a "justice court" exemption I believe. Justice court would translate to small claims, usually. So potentially if this holds true in your case arbitration isn't going to do anything for you. This doesn't necessarily mean that it would do absolutely nothing for you. It would at the very least buy you a little bit of time. It is unlikely the motion to compel would be ruled on either way without a hearing in court. As far as discussing the debt with the collector I would limit any negotiating. I am not sure of your states laws specifically but in some states if you "acknowledge" the debt at all, including agreeing to any payment terms, etc. you are acknowledging the debt and that could potentially start the clock on the statute of limitations all over again. If you have said to the collector, or attorney for the plaintiff or whomever only what you have indicated here it doesn't seem like anything you said would be an acknowledgment. Further if you do agree to any terms to settle the debt you may want to find out if it will be an agreed judgment or if they will dismiss the case in court. Agreed judgment can still be shown on your credit report. Some cheerleaders will say "agreed judgment is a good mark", what you want to focus on is the judgment part. That is what future creditors will be looking at.
  10. When you say filed for arbitration, what do you mean exactly, filed a motion to compel arbitration? You are handling a case in District Court in Texas without an attorney? Or is "they filed in District Court" a typo? I am assuming you filed an answer to the suit, filed a MTC arbitration, and sent everything you filed with the court to the plaintiff attorney. Only thing you can do now is wait. In each scenario where I have filed an MTC, the plaintiff contacted me on their own wanting to know "what could be done" to settle and have a pissing match back and forth email fiasco. You can ask for mutual dismissal, but you want to try to get it with prejudice, not without. Otherwise you may go through this over and over again until the SOL has passed and they can't sue you anymore. Just curious, what was it you did that made them dismiss the suit previously when it was filed?
  11. So do you know if the contract in question would contain the Delaware choice of law cause? I reviewed the link you posted previously about it, citing that someone else used it successfully, but that was that particular case and that particular creditor whose agreement contained the clause. A quick google search shows four years is the SOL on debt in California, if there is no other states SOL that could be used. If the rule applies in California and you engaged in defending or litigating the lawsuit against you then you may have waived your right to any applicable arbitration agreement. You would definitely need to get the agreement from the original creditor, though. Likely they will try to use the one that was in effect at the time the account was charged off. Resurgence had a valid assignment from the original creditor. We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation; (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code;[1] and (3) section 8117 did not toll the statutory period. Given these conclusions, the court will not address whether application of section 8117 would violate the commerce clause or whether the trial court improperly admitted evidence. When I researched 2nd quarter 2017 Barclays Bank Delaware credit card agreement with the CFPB (they keep records of the agreements by issuer), I found this: Governing Law. THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW. If you need that agreement, you can find it at the link https://www.consumerfinance.gov/credit-cards/agreements/ I only estimated with your last payment being November 2016 that it may have been charged off in the second quarter of 2017. You can count on the collection agency using the agreement in force at time of charge off though. I do notice that same agreement also contains an arbitration agreement but with a "Justice of the Peace Court" exemption. It is worded exactly like that. There is a good chance though you have no waived any right at even trying to use that in court, or forcing arbitration on the collector. I hope all this info helps you, somehow.
  12. If they want to refile then do the same song and dance as you already have all over again. If your MTC was granted, and the JDB doesn't do their end of things with the arbitration then the Judge will probably sometime later from now dismiss for lack of prosecution. Was the call center you called the attorney for plaintiff, or the JDB itself?
  13. So you last paid on this debt October of 2018? From what I have read on these forums about Synchrony they seem to have a very favorable consumer friendly arbitration agreement. So, what I would do is file an answer, with an affirmative defense and file a Motion to Compel Arbitration. The affirmative defense I used I think was arbitration.. I have never been sued by PRA, but have by another creditor. One thing about PRA is they don't like to follow laws pertaining to making calls to your phone and such using an auto dialing system. Some will probably say also to use lack of subject matter jurisdiction and/or improper venue (relating to the binding arbitration agreement), because the arbitration extends to PRA. So if say perhaps they have been calling a number that you did not have when you were "okay" with your original creditor it is quite possible they obtained the number they have been calling of yours from your consumer reports. You can't provide permission for a number you didn't have for automated calls to be placed to your phone. Meaning they can't claim they had your permission to call 555-555-0011 when your number they were calling is 555-555-0234. The MOST important thing for you to do is file an answer. If you do not, then you lose automatically. So make sure you file an answer before the deadline, properly file it in court and make sure you send a copy of your answer to your plaintiffs attorney, always send a copy certified mail return receipt requested of ANYTHING you file in court pertaining to the case, or have them served by private server, sheriff, etc.
  14. Well that is a bummer. I personally wouldn't know exactly what steps to take to file an appeal either. But maybe someone else will chime in and be able to offer advice. The same Judge said the same thing, "motion denied cause plaintiff chose to sue"? Who is the arbitration from, like what creditor?
  15. I am confused. How would anyone find out about this debt, if you didn't pay it at all? It isn't on your credit reports and there is no judgment on it. So essentially NOBODY knows about it besides you, Amex and whomever you tell about the debt to yourself. Am I missing something here? Do they check all kinds of things, and ask for all your credit transactions or something for this clearance you mention? To answer your question, even if it did restart the debt collection clock (could possibly not even be reset by payment if you search current law. In Texas for example, time barred debt isn't revived by making a payment or acknowledging the debt) if you paid the debt in full then there is nothing to collect beyond your payment.
  16. This means a judgment has been entered and it may or may not appear on your credit report, but may and likely will appear on public records. It could, but not an absolute that it will affect your refinancing of your house. It is possible to negotiate with the person holding the judgment (creditor or JDB) against you, but not likely they will since they have the judgment and at least the face value of such they can nail you for. Your judgment against you shouldn't affect your mom co-signing, or affect her credit or anything else in the process. However, if you ever sell your home the money received could be offset by the judgment against you meaning neither you or mom would see that portion (amount of judgment) from the sale proceeds. Some states have certain things that cannot be seized or sale of property forced upon. If I were in your position I would try to negotiate. If you can resolve the judgment and it shows that it was satisfied it may not affect you as much as doing nothing will.
  17. Rule numero uno my friend, NEVER accept the first offer. If they are willing to go double right out of the gate, you could easily triple it rather than double. Play their way.
  18. Was there anything in the arbitration agreement that excluded small claims cases? If so, then that is why the Judge denied your motion. If there is a small claims exception that means that the debt buyer can sue you in court and not be bound by arbitration.
  19. 1.) Judge should not have just rescheduled the court date. The plaintiff did not show to make their case. If you wouldn't have shown up then a judgment would have been rendered against you. 2.) She does have subject matter jurisdiction, as that is based on the amount in controversy. Important to NOT presume jurisdiction and venue are the same thing. They aren't one in the same. Jurisdiction pertains to the amount in controversy, the amount in question you are being sued for in Texas is within the jurisdictional limits (under $20,000) of the court. Venue however, would be improper (if appropriately raised by you or the defense) as the arbitration agreement would articulate matters be arbitrated and not heard in a court. 3.) Regarding the agreement not being the original agreement, sounds like that is possibly her speculation. Unless she meant to say not the agreement applicable, as they (PRA) will try to push whichever agreement was in effect at the time your account was charged off. 4.) Do you have ANY counter claims possibly against PRA? Have they been placing unsolicited calls to your phone up to and including debt collection, without your express written consent?
  20. General rule, you can't predict the future. Same applies in instances such as this. Basically they don't want you coming back and suing them is all they are wanting you to agree to. If there is no "other account in consumers name" at the time the agreement is signed, then you DO NOT expressly agree to waiving your rights to damages, etc. in the future. As you cannot see or predict the future. If that makes sense.
  21. In most if not all states there is alternative service which could include leaving it as it lists it was left. If that was done then most likely they attempted service several times and never did reach you, so they alternatively left the notice. There could be some other issues such as maybe they went to an old address, or last known address. I wouldn't know truly, but if that is so, that would all be a matter of law in your state. The chances of you having anything changed pertaining to that judgment are slim to none. As for the name error, it could be just that, an error. That they have or must have caught since and just never corrected old entries in the court system.
  22. Going the route you are articulating, I would mention 1681i and 1681s-2b. 1681i would provide for the grounds against the credit reporting agency, or bureau while 1681s-2b would provide the grounds against the information furnisher, in this case the OP creditor. However, these both apply to the investigation of the inaccuracies which would presumably be raised accordingly by the OP, e.g. "this specific account is wrong", "this is why it is wrong", "investigate this please. If you will not investigate it then remove it from my report." I was just saying news to me because I personally have resolved issues with similar matters, myself. Without ever filing a suit. Just sending a letter threatening to sue if it wasn't resolved. And voila. But he or she should still contact an attorney and see what might be in the cards for them worst case scenario.
  23. Really? News to me. I haven't ever filed a dispute first. But I also haven't had to actually file a suit either. I guess you could call my dispute (against a creditor) my demand letter.
  24. You should call an attorney that handles FCRA claims. To folks like you and I, consumers, no it should not report current on one report and charge off on another. However, it definitely wasn't current. It was chapter 7, payments stopped being made, etc. Albeit their fault, it still happened that way. None of this changes the fact of whether or not you owed the debt, however. If you owe the debt you owe the debt. Whether or not you will ever pay it is something different entirely. Yes there are consequences if you don't repay your outstanding debt, which include what it would be for anyone else including collections on your credit reports and/or possibly being sued for the debt. Just by what you divulge here the status of the account is not current, and likely is charged off. An FCRA attorney may be able to tell you quickly and free if you might have a case against the creditor, or the credit bureaus. §1681e(b) I think would be an issue for one or either of them, the bureaus and the creditor.
  25. Okay. April 13th, 2010, a default judgment was entered against you. This means you didn't file an answer and/or didn't show up for court when they filed suit against you in 2010. Your debt validation requests are toilet paper at this point. There is likely nothing you will be able to do to stop them from garnishing your wages if your state allows such for the creditor or debt collector to recover their money. It is likely the amount you owe has grown quite larger than what it was originally. There is nothing you can do about it now, unfortunately. You could try calling an attorney in your area and see but I am sure you are between a rock and a hard place. This isn't just collections. You have a judgment against you, meaning they sued and won. Which is why your validation request is toilet paper and likely wont be answered. And it wont be an FDCPA if they don't answer due to the fact they obtained a judgment against you. They are either trying to continue, or renew the judgment which is what it looks like, or trying to do that and collect. I didn't spend extensive time researching but it appears that judgments are good for 20 years in Indiana. And the maximum they can garnish from your wages is 25%. I only googled how long judgments were good for in Indiana and what they could garnish from wages.
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