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HaplessHoper's Achievements


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  1. I did add potential FDCPA violations. I had never heard of this party before suit. I asked for debt validation by way of the lawsuit process; I'm not sure that would even work if they prove standing. But I did add in that possibility in the Answer as a counterclaim.
  2. thanks! I'm looking to identify what to leave out, so as to not harm the MTC or anything else. But then, what must be argued for the MSJ to prevail. I think I have that but concerned about the deemed admissions. Can I just argue that point in the response to the MSJ? Basically, I would need to explain why they should not be deemed and I'm going to that anyway. I could put in the prayer for relief. There are some admissions that would not be correct if they stand admitted, so I would want to argue those in the arbitration.
  3. Thanks for these points. I need to line this up so I don't cross hairs. I have an MSJ to respond to.In that, I have to present enough facts/insufficient facts to allow it to be granted. But, I need discovery to make that "really" happen. So, how do I play the discovery in light of 1) I have deemed admissions I need to get withdrawn and amended (I have drafted a motion for that) and 2) I have a desire/need to MTC arbitration for several reasons. I feel either a bit limited in what I can argue in the MSJ because of this, and then, it may hurt me if I don't argue "everything". How do you see these working in harmony for my end goal of MTC? Next, I have a few things to file. 1) response to MSJ 2) motion to withdraw and amend deemed admissions (with a leave to amend) 3) MTC arb 4) potentially, somewhere to put my non-waiver of arbitration (I have been told I don't need to amend my answer but then, where do I make the argument that I did not waive the right?) This is 4 potential responses maybe more. What would you see as a good path for filing these? Initially, I was considering 1) motion to withdraw/amend 2) response to MSJ 3) going through discovery after that, if successful. How to treat these admissions does affect how I argue the MSJ. Now I see a little cloudiness 1) motion to w/a 2) response to MSJ, mentioning the arguments + non-waiver + withdraw/amend admissions (if needed) or at least alluding to these motions and 3) MTC arb. I almost feel too overwhelmed at the moment. If I get a get order of things, I can do this but I would really appreciate your feedback on options. I know this is going to be difficult. But I feel if I can present enough to show 1) issues of material fact 2) non-existent communication / challenges 3) non-waiver of a right to arbitrate, I might be able to get into a better position where I could get into a forum where my arguments would have a better chance. I feel I have no chance with the court system. Thank you.
  4. By averments, I mean vows, swears, facts to be proven. Meaning, they may not be statements of material fact, I would be vowing to prove them, not prove them on their face. I would have to present evidence. I suppose I could have misused the term but it's a way of saying "statements" you are going to prove.
  5. Why do you think it's "so far along"? Discovery was supposed to start (their discovery was served, I had not yet filed mine). A few months passed, no interaction. (I can prove that.) I can also prove on my phone that I called them. I didn't make every call from my phone but I did some of them. It shows that I tried to confer. I am trying to figure out how to get into arbitration and avoid/deal with the MSJ that way. It's an odd set of circumstances. I need case law supporting that I didn't waive my rights and also that I have issues of material fact. Some are averments until I get out of discovery, which oddly, seems like I missed being able to do it. Why can't I do it? What about FDCPA issues? What about not even knowing who this party is until they sued me? It's really weird and then, now I have to fight these things and would struggle even with that. I don't feel I have used the "litigation machinery" sufficient to prove arbitration would be a complete about face. Had they conferred, they would also know that, and they could have avoided court costs. Can I state that? I feel that I can and should, and that this is s factor. What can they prove once I show them my phone records? That they didn't answer the phone? That's a nice picture. That's the picture I want to paint. This has not been fair but then, I've got this monkey wrench in that I got very sick. I just think there is room for reconsideration. Thanks for your feedback. It's just a tough situation; everyone here has been helpful.
  6. I am struggling with how to insert the federal law (and use the federal MTCA) with state-specific case law. Would I remove all the federal case law in the sample I've seen or just add state-specific case law similar to it? I want to do arbitration instead of dealing with this MSJ. Can I possibly do them together? IN other words, when I MTCA, could I add it to vacating the MSJ (or dismissing it) because it is being moved to arbitration? And to successfully move to arbitration, I've been told I don't automatically waive the right just by not claiming it as a defense. But what is another option to deal with this, since this defense is not in the initial answer? I didn't realize it was a defense....silly me. It seems to me, that I want to go one way, or another. The plaintiff took it to SJ without conferring with me even one time. I guess he can, but can't I exercise this right when I know there are issues, and I want to deal with them in arbitration? How do I know the issues I raise will defeat a MSJ? I have not conducted a discovery to get answers for some of these. They would possibly be considered averments. But is that fair? I don't think so and I'm tired of dealing with a legal system that won't give you a chance. I need to know how I can force this into arbitration the best way possible. I've learned a lot in this case, and that I did it all wrong, but I still want a chance to look at these issues and not get beaten at the gate because of procedure. <sigh> Thanks.
  7. Might there be an example of a MTCA for Minnesota at this forum? I have seen other results, just not a state-specific example. The federal example cited in this forum advises to use state-specific case law references but I'm also interested in arguments that proved useful. I know that this state uses the Eighth Circuit typically and that the UAA is in 572B.07 guides the MTC. I'm also looking for same for MSJ for Minnesota. Thank you so much.
  8. Attaching 3 images of the arbitration clause in the BRA. Thank you.
  9. I believe I now know the answer to the first question. For the Prosper loan, the choice of arbitrators is in the Borrower Registration Agreement. So I just need to know if I need to remove to federal court. I did find out, per a different post on this forum, that I can file a motion to compel without amending my answer. She said to claim the right to arbitration just as it is done in the MTC. It would be better if it was in the answer but she said I did not waive that right. Thank you.
  10. I am considering the use of arbitration and thought per @fistbigcheese post that I could use that option. I have a case with a promissory note with Prosper/Webank. There is an arbitration clause but it does not state AAA or JAMS in it. What determines which arbitration I would have to use? I just spoke with a lawyer from another state and looking at MN statutes, they think that the case will fall under the state court's arbitration procedure (statute 484.73 and 484.74 section 4 "Judicial Arbitration" and "ADR" respectively. These cite costs of $125/hour. Am I subject to the state rules or can I use the AAA/JAMS? Also, do I need to remand to federal court in order to use them? Thank you.
  11. Sending a link regarding deemed admissions, are you implying that I need to address those as well as the MTC? My understanding is that I could file a motion for leave to amend my answer, along with an amended answer to include the defense of arbitration (now that I know it is one), along with a MTC for the arbitration (with affidavit). If I am pursuing a different route due to jurisdictional issues, I would think I may not have to respond to the deemed admissions. That said, it did make me realize I may also need to file a motion to vacate or stay pending completion of the arbitration (not sure, still learning). It would seem that filing the stay would please the court and it would still have a view of the outcome. But must I also address deemed admissions? I think by invoking arbitration, I'm implying that something may be there, but that i want to use the arbitration process to discover it instead of the court. I still don't know that this plaintiff/party has any rights. I just didn't know several facts about arbitration until I read more about it. I didn't even know it was a defense. Also the order about the deemed admissions, thinking it is similar to mine: no it's not. My case was in discovery and instead of contacting me, conferring with me, as counsel is supposed to do (and I attempted to do, without success), they proceeded to take advantage of a technical procedure with admissions to get an advantage. I wasn't over a year down the tracks. The case was a few months old. We have not had a trial, period, let alone a hearing for MSJ. And there is a reason I want admissions deemed withdrawn that could be proven during discovery; there appears to be a problem with their paperwork. So my situation is different, and in order to be heard, I thought this might be a better track. Your response alone leads me to think that. I do appreciate your voice, but it seems bitterly condemning. I'm just not clear whether I need to do both: reply to the deemed admissions so that I can fight the MSJ or whether the arbitration approach would address that. I realize this is a difficult situation but I appreciate your time and feedback. I guess I will proceed with my leave to amend, amended answer and MTC. I will add a motion to stay pending completion of arbitration. I just think arguing both sides needs clarification because it seems that doing both may not be required or even useful. I will keep pursuing what I need to address there. Thank you.
  12. I didn't plan not to answer discovery but yes, it happened. I also tried to reach opposing Counsel more than once through this process with no success. I was never given a name, a direct phone number, nothing. When I got sick I think I gave up. All that said, I understand your points. What I'm trying to find out is whether I can use arbitration at this point. The plaintiff's counsel never consulted me on filing this with the court. On most things, I've been told to consult with counsel and this has not happened in reverse. Why am I held to a standard their counsel does not perform? I do get your point, but I mention these points because I feel the system is rigged against the debtor. And it sounds like you think it's the same. This is very discouraging, but what came to mind when I read about arbitration is that it would be a way out that might be somewhat fair. I didn't know it was even a defense. I thought it was an option one should never use to be honest. I'm a pro se litigant by way of need not knowledge. And I'm really not trying to game the system. I'm trying to find a defense that would be fair. In this state, there is very little fairness in this process other than perhaps, being able to amend pleadings. I'm seeking to understand if I can use this option. I realize there may be court costs with the initial casework. I cannot help that now. I want to move forward with something that I feel will work and allow me a chance. Right now, and even from the beginning, I feel that I had no chance. I guess I got a glimmer of hope and wanted to learn more. There is an arbitration clause. And based on previous writings here, it seems like a viable option. I'm not a lawyer and I've not had anyone I've consulted even mention this option. Things are learned through litigation and this is why amendments are allowed. work. You didn't speak as to whether the arbitration would be viable, only that amending my answer may not be allowed. I often see that pleadings are to be amended "when justice so requires" and when replying to this post, and that article was talking about affirmative defenses. So I believe I can amend my answer. I can at least try. Here is a link to that aritcle. https://trepanierlaw.com/anatomy-of-an-answer-to-a-minnesota-summons-and-complaint/ Thank you for your feedback. I appreciate any and all comments.
  13. Thanks for your reply. Yes, I will need it, which is why I am filing it with a Motion for Leave to Amend. I'm not completely sure I can't get around it but fairly sure it won't hurt if I file for leave.
  14. I was served a debt collection lawsuit and never met the JDB. Crown Asset Management is JDB for Prosper loan/note. I filed an answer and an amended answer (to clarify a counterclaim) and unfortunately, became ill and am now in a situation of deemed admissions giving rise to a MSJ. In Minnesota, the lawsuit does not have to filed with the court right away, and has up to a year; with this situation, the case was filed after Thanksgiving. I was in the process of preparing/filing a Motion for Leave to Withdraw and Amend Deemed Admissions, whereupon I ran across your website. After reading about arbitration, I believe this very well may be a more useful option in my case. I'd like to file a second amended answer, to add the arbitration affirmative defense (missed that first time round, thinking it was not beneficial). I believe I could file the MTC Arbitration along with it. I could also do an affidavit of the arbitration clause/document. I can get that Monday afternoon (needing a notary) Because of the MSJ, time is of the essence. I have the MSJ to stop and need this to be a silver bullet. My concern is, whether there is anything else I need to consider when using arbitration. This is a prosper note, so it has the standard arbitration clause most of them do. But the amount owing is less than $3K. Are there arbitration costs that I should be aware of? I did read the @fisthardcheese post which indicates the fees are rather modest ($200 and $250, AAA and JAMS). How would I decide which arbitration to use and must I specify that in the MTC? (I do see it in the example, but is it "required" to specify the option you will use?) Otherwise, Minn. RCP indicate I can proceed in this direction, as long as I can still amend. (I cannot find anything definitive saying I cannot amend, as we were in discovery and now a MSJ is on the table. We were not at trial.) The case was just entering discovery, then the plaintiff counsel filed a MSJ accelerating the case to a hearing which is 2/4/21. I have to respond to the MSJ by end of Dec. If the MTC is successful, would this take care of the MSJ or would i need to file an answer to dismiss it due to the jurisdiction issue? (Help on that argument would be appreciated; I can research how to write it but any key points related to arbitration is where I'm weak.) The reasons this approach seems advantageous to me are: 1) JDB bought from OC, 2) amount suing for is less than $3K, making it likely the JDB will not want to arbitrate, 3) seems like less of a headache in that both require mental exercise but arbitration seems like an option that would help me most in options - with court, and I lose, there is less wiggle room). Also, I'm not sure I fully understand the settlement advantage ( settling for $0 with a mutual dismissal with prejudice). Does this mean the JDB settles for $0 and then dismisses their complaint/case with prejudice? In my case, it's more concerning because of the MSJ and deemed admissions, so I'm wondering - should I ALSO file the Motion to Withdraw and Amend Deemed Admissions, if only to state, hey, I wasn't ignoring you, I was sick and life happened and you are basing your MSJ on allegations, not facts. It seems that I would not, because I want to get out of litigation altogether, but I would appreciate your views here. Is there anything else to consider? Time is ticking and I am grateful for your timely responses. I will be filing something by Monday, 12/21. Thank you, and I appreciate your feedback. Sorry if this is long - I have a few twists and turns that seem a bit atypical so tried to point those out.
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