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HueyPilot

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  1. First you have to file a motion in opposition to plaintiffs motion for MSJ. You will have to include a summary of the legal basis for your opposition, state the reason you are opposing the motion and include what you would like the judge to order. I'm not sure there is a standard form for this. The basic structure and language is on the template I previously cited. You can create this yourself from MS word using the same information and format as the plaintiff did on the MSJ. The opposition language is on the templates. You will have to change a few things and use Washington Caselaw. Second: You will have to search for "FistHardCheese" on the CIC site and use his motion template for you Motion to Compel Private Arbitration per credit card agreement. It's excellent. The forum will help you find some Washington Caselaw. This all has to be filed with the Court and copy forwarded to Midlands attorney. I would send the attorney CMRRR.
  2. GA&T are pretty tenatious but your best chance is a motion to compel "Private" arbitration. Midland likes to drag you ito a settlement at full amount with monthly installments. Try to avoid. MTC can be a challenge in Oregon and Washington as both states have manditory Court Appointed Arbitration. First and most important you have to stall/defeat by opposition their MSJ which requires an reply based on no opportunity for discovery or a stay pending your Motion to Compel"Private" Arbitration. Sample Templates: Motion to Dismiss Summary Judgment CIC ============= IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE> IN AND FOR THE COUNTY OF <YOUR COUNTY> Case No._____________________ <Collection Agency> Plaintiff Vs. Joseph Consumer Defendant(s) MOTION FOR DISMISSAL OF SUMMARY JUDGMENT (or Motion in opposition to MSJ pending Motion to Compel Compel Private Contratual Arbitration Per Card Agreement) Comes now the Defendant, XXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, <Your Plantiff>, Inc., as follows: 1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law. A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied. 2. Defendant received the Plaintiff's Summons on <Date upon which You received Summons>. Defendant answered the request on <Date which you answered Summons>. 3. Trial was set for <Date on which trail was set for>. 4. Motion for discovery was filed on <date the motion was filed>. (Modify this) Documents requested from plaintiff included any documentation of relationship between plaintiff and RSC, the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented. [The appeals court overturned the default summary in Spears vs. Brennan Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g (B) Validation of Debts.] 5. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained. 6. Defendant alleges that this action is time-barred under § 735 ILCS 5/13-204- 735 ILCS 5/13-206 under Illinois’s civil code (statute of limitations for open accounts is 5 years). Per the Plaintiff’s own summons, date of last payment was 10/07/2000. Date of summons was 10/31/2005. 7. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt. WHEREFORE, Defendant, XXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed herein by National Check Bureau and prays for Dismissal of the complaint by the Plaintiff for damages of $983.73 and any further relief this court deems just and proper. Defendant's motion for dismissal of summary judgment submitted this ___________ day of Dec 2021 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Powerful Memorandum to the Judge: MSJ Motions Pending Arbitration ruling. Defendants Name & Case Number To: Judges Name Court Name etc Memorandum Memorandum regarding Planitiffs Motion for Summary Judgement Pending Motion for Compelling Private contractual arbitration as per Card Agreement. For reasons stated herin, the Court should strike Plaintiffs Motion for Summary Judgement rendering it null and void and have no effect on defendants pending application to confirm private arbitration per incorporated agreement attached to motion to compel arbitration and deny plaintiffs motion for summary judgement as moot. A genuine despute as to material facts exist regarding a number of Issues unresolved. Defendant has not been allowed discovery. NC Civil Procedure § 1-569.7 (f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section. An application has been made to stay action in ths Court. Action is pending continuance. Petition and Motion for Arbitration is in continuance for determination on <enter date> Answer to Plaintiffs summons and complaint has been filed no further action initiated. The petition for arbitration includes a copy of the card agreement incorporated in the submitted motion documents directing disputes be settled by private arbitration. Answers and summary judgment motions are matters that relate to civil actions, not motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file Case 3:04-cv-02370-L Document 33 Filed 04/30/07 Page 4 of 14 PageID 228 therefore, has no applicability to a proceeding relating to arbitration. Plaintiffs motion should not apply to a proceeding relating to arbitration for two reasons: (1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action under the FAA; and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1 Rule 41 pertains to voluntary dismissal of actions and provides as follows: an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. FAA’s goal of promoting the expeditious resolution of disputes, the enforcement of private arbitration agreements, rather than speed, is the dominant goal of the FAA that must be given priority by courts. See Guidotti, 716 F.3d at 773 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 219-21 (1983)). Normally, therefore, issues at the gateway to arbitration, such as the existence of an arbitration agreement, must be addressed according to judicial rather than arbitral practice. When it is apparent on the face of the complaint and the defendants motion documents incorporated therein that the parties agreed to arbitrate, the court should apply the FRCP 12(b)(6) standard for a motion to dismiss for failure to state a claim, without any opportunity for discovery. ~~~~~~~~~~~~~~~~~~~~~~~~~```` Don't forget to file your MTC along with your oppositio. See "FistHardCheese's" instructions on this CIC web site.
  3. Object to Everything Except your name and address. If you file these objections you start the lawsuit in motion. The current trend it to file a "motion to compel arbitration" either with or immediately after the answer. Discovery Question Answer - While MTC Arbitration Pending Most of them, except the obvious questions about your name and address, should be met with an objection due to court being an improper venue and your pending MTC to move the case to arbitration. You must answer them within the allowed time. ~~~~~~~~~~~~~ Here is something I have used on the alternative if it's too late to arbitrate: The Plaintiff may send you a Request for Admissons, in order to get you to Admit facts in writing. These questions are almost always deceptive in nature and are designed to get you the Defendant to admit guilt or to see if you give a answer that contradicts your answer to the original complaint. Interrogatories are questions and statements that are designed to reveal facts that Admissons would have not revealed, and are always as Deceptive in nature as a Plaintiff's Request for Admissons. Much like answering to a Discovery or Request to Produce, you want to avoid lying or giving inaccurate answers. You also want to keep your answers parallel with your answer to the Complaint, do not contradict yourself. Last. don't admit anything that the opposing counsel can use against you. Lets start with Admissons. 1) Plaintiff asks the Defendant to admit that he/she never disputed any purchases that were listed on the Monthly Statements that were mailed to Defendant. ANSWER; Objection; This request implies that the Defendant received alleged statements, which after reasonable inquiry the Defendant does not recall receiving such statements and therefore denies the same. 2) Plaintiff asks the Defendant to admit that he/she at one time, obtained a credit line with SO SO Bank. ** this depends on your defense, so the answer is Important. If you are only disputing the amount you can say"= ANSWER; Partially Omitted: Defendant acknowledges said credit card account, but denies defaulting on purchases and/or cash advances) *** If you are disputing the account as a being fraudulently conceived, then you would say; ANSWER; Denied, After reasonable inquiry, the defendant does not recall obtaining the credit card that is the subject matter of this suit. *** How ever you answer, make sure it is the same as what you stated in the response to the complaint. 3) Admit that account number XXXXXXX is in default. ANSWER; Objection, Requests calls for the Defendant to draw a conclusion based on hearsay or speculation, therefore the Defendant can not admit or deny. 4) Admit that you, the Defendant, or someone that the Defendant Authorized , made purchases or balance transfers using a credit line for So and So Bank with a account # of XXXXXXXXX. ANSWER; Denied, After reasonable inquiry, the Defendant does not recall making or authorizing alleged purchases or balance transfers that are calculated into the amount the Plaintiff claims that he/she is owed. You get the picture. Your answers should answer the bare minimum of what they are asking for, and should not reveal any information that was not asked for.. Interrogatories work in a similar fashion. 1) The Plaintiff asks the Defendant to submit 5 examples of his/her signature. Samples of Excepted forms are a voter ID card a Driver's license or State Identification card a Marriage License ANSWER: The Defendant Objects and denies this request as the Plaintiff should already have 5 examples of my signature from this civil court case alone, and those examples should be efficient The Defendant further objects to this request as such documents are private in nature and could revel sensitive information that is irrelevant to this case action. 2) The Plaintiff requests a list names and phone numbers of all witnesses they plain to call in trail. ** note, you do not have to disclose this information, if any. ANSWER; The Defendant objects to this requests that such information is privileged 3) Describe in detail how you obtained the credit card that is the subject of this civil suit. ANSWER; Objection; Overly Broad and burdensome; vague and ambiguous; and hearsay. Without waving said objection, Defendant does not recall in detail how he/she obtained the subject credit card, If any. Said information should be in possession of the Plaintiff. 4) State the exact amount, which your records reflect is owed by you to the Plaintiff and how you calculated said amount. *** This is where they are trying to get you ANSWER; Defendant believes he/she owes no money in relation to the amount the plaintiff claims is owed in it's complaint. The Defendant maintains his/her suspension that this account was fraudulently conceived, and has sent his/her own Discovery to Plaintiff to investigate further. 5) State the exact amount and date of your final payment to the plaintiff. ** once again they are trying to get you to acknowledge ownership of account, if you are disputing the account in it's entirely you can say ANSWER: Objection; vague and ambiguous; and overly broad and burdensome. Without waving said objection: Unknown, if any, Plaintiff should already have this information in it's possession. In summery, you have to answer their requests, without really answering their requests. What you can and can not say depends on what are you using as a defense. You do not want to give them anything that will help their case, and you don't want to be a jerk about it. You don't want to piss off the opposing counsel without reason. Keep the mood formal, and to the point of the civil court procedure in your state. Next you want to send them YOUR Request to Produce. if they ask the court for more time to respond to your request, Then you send them your Request for Admissons, and Interrogatories. These will vary depending on the facts of the case. I hope that someone finds this information helpful.
  4. Maybe you can call the Court Clerk or Admin, get them to make copies, pay a fee and get the Court Clerk to send them to you. If not it would be worth your while to make the drive if you want to get the jump on preping your answer and MTC prior to service.
  5. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time. History (Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) ~~~~~~~~~~ States usually have some equivalent version of this rule of evidence. Could this be interpreted to mean that if an attorney for a debt buyer enters a page of evidence with your name and account number only, then in order for this document to have probative value and be acceptable as evidence the complete document can be requested with all the names to be fair to the defense. The debt buyer will not provide this complete Bill of Sale document and without this piece of evidence the plaintiff has nobody to sue. I doubt any Judge/Arbitrator would rule accordingly however he might throw you a bone and allow you to strike some other Plaintiff Document
  6. I grew up in International Falls and TRF Minnesota. Some of the heartiest, hard working and honest people on the planet. Did I mention stubborn? No wonder 98% don't fight. They think it's dishonest and beneath them. Its a pride thing, nobody wants their credit problems exposed. Midwest people think they owe the money and are responsible for their actions. Apparently the legal system works accordingly. I remember during various visits that merchants didn't take credit cards. You could write a check anywhere no problem and there were serious legal repercussions if it were to bounce. You would be arrested and in front of a judge if cash not provided next day. Maybe not a bad way to grow up but things change. People need help.
  7. WC1000, you are absolutely correct on today’s EDP capability for storage, search and retrieval. The main difference today is the vast volumes of information and data being stored at the numerous data centers and amount of specialized service providers giving availability with pay for various services. The Banks have always had their records in one form or another as required by law. The same Federal regulators require banks to write off and sell their stale debt after two years. If you have read any of the SEC filings and/or annual financials of the top ten JDB's their financial strength is just awesome. It's no surprise giant debt buyers can bid on and purchase any list of a million plus names for 4 - 6% of the retail value and demand all the associated records. They may have to pay a little extra for this service but it's only needed in a small and insignificant amount of cases where people actually object or provide a fight defending any pending action. Each week I see new posters asking "Help I'm being sued" or "How I do" the only difference from years ago is the greatly reduced number of requests. That in it's self would be good if there weren't so many more people giving up and rolling over and allowing the debt buyers to further increase their financial profits. The CIC forum used to have a repository of forms and steps to take to help people. I can no longer find that. There seems to be very few senior posters left carrying the torch helping other new people to win the fight. Bless you all that have hung in there! Where are the new posters. Why are they not finding this forum. There sometimes is a sense of an undertow, slightly negative giving a feeling of your on your own. That's of concern. Some of my strategies may be old but the foundation of winning never changes. Helping other people win is my main focus regardless of technique and it always comes back at me ten fold in my personal struggles. We shouldn't be stuck on any defense method past of present. The past always repeats itself and historically there are always a lot of lessons learned to bring forward. I posted some in the previous link and hope it may help people with potential templates. My next concern is what to do once I get followed into Private Contractual Arbitration, that is if I can just get there.
  8. https://www.masslegalservices.org/system/files/library/Substantive_Defenses_to_Consumer_Debt_Collection_Suits_t.pdf @Clydesmomwill claim this material is outdated and no longer a best practice. That may we be true but its a good read for the educational value and the forms and filings at the end are very useful.
  9. @texasrockerseems to have a good handle on this question. The current trend seems to favor arbitration but Citibank may have a few wrinkles in their credit card agreement for arbitration in various courts. Find your agreement online and read through that provision. Should help you decide. It's hard to win in civil court anymore. I also have a pending case with Citibank & Cavalry.
  10. Nice work! Attorneys for JDB's work off an automated series of processes to obtain judgements and Court Orders to transfer payments from consumers. It's been said 95% of the time debtors don't fight back. You were caught in step #2 of the computer generated process. Staying the Court has stopped the process. It's nice to know we can still insert some kind of a wrench in their automated machine. Keep us posted while you prevail in your arbitration.
  11. Controversial opinion on California time barred debt: http://www.ellislawgrp.com/article05time.html
  12. There must be a judgement. If the JDB has paid on the account restarting the tolled statute you have recourse. I'd consult with an attorney. https://www.consumerfinancemonitor.com/2018/09/18/california-enacts-additional-limits-on-collecting-time-barred-debts/ https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1526
  13. If your business was an LLC you might have some recourse. Sole Proprietorship leaves you pretty exposed. At this point waiting out the SOL until it tolls appears your best option. Really sucks if you are trying to buy something. https://www.upcounsel.com/can-a-llc-be-sued Your claim sounds like a different issue however the above is a good read and may give you some ideas to pursue.
  14. Car dealers make the same fuss when you use other financing or cash. They get further upset when you don't purchase the extended warranty programs. Most realtors use the multiple listing program. Just find another realtor and buy the same house and further cut her commission even more. She will get her cut of the referral fee for finding the listing but it will be less than half.
  15. Per @WhoCares1000and @Clydesmomresponses I don't see plaintiff filing actions in Oregon's small claims Courts. I have seen some postings where small claims and justice courts have been referenced for suits in other states. Some appeared to be a real struggle and had to be appealed. With the limited time allocated for these cases I was wondering how to best set up a winning defense if needed.
  16. @ClydesmomI do see your analogy and more significantly why that is true. In Oregon like Minnesota its approximately 600.00 for both the plaintiff and/or the defendant to initiate/defend a civil case. Filing fee, answer fee, MTC fee, and 300.00 court appointed arbitration fee if private/contractual arbitration is not allowed. That's just to start. Now if the JDB's attorney could send one of their disbarred former attorney's without a license or other employee flunkee to represent the plaintiff it would only cost them 160.00 to file a suit in small claims court. It's a different dog in the hunt but potentially dangerous. Being most consumers don't fight the same ratio of 95% would result in default judgements and the JDB's profits would exponentially increase. What do you see that would prevent this strategy if allowed. This could be a worse carnival then the Court Adjoined Dispute Resolution (ADR - kangaroo Court).
  17. @ClydesmomYou identified the root of the question. Oregon does NOT allow attorneys in small claims court unless you get special permission from the judge. It would seem possible for the plaintiff to have an attorney though doubtful. So who would the JDB send to represent their claim if attorneys are not permitted. I didn't find the requirements necessary to request an attorney or what is involved. I did see where and attorney can be there to advise the plaintiffs representative but not actively participate. Oregon's Court System is weird.
  18. It was pointed out earlier that Citibank has a "Carve Out" for small claims court for suits less than 10,000. Lawyers are not permitted unless by special authorization by the Court so who do you normally go up against. What kind of filings are you allowed to make or motions can be made. What is the best strategy for fighting this type of litigation.
  19. This might be of interest. This is a quote from @RyanEX who is from California. " I initially downloaded judgment forms from the state, which I filed at the court house. First few attempts were rejected, I don't remember why but I remember the clerks were mostly unhelpful (they didn't understand a pro se attempting to obtain a costs a from a JDB after a dismissal); I had to walk them through the civil code that described it. Eventually one of them suggested I look up "Judgment of Dismissal"; I found an example online and typed it up on pleading paper. Per advice from someone on the board, I addressed it directly to the judge (so as to bypass his clerk) for his signature and included a self addressed stamped envelope. I got it back a few weeks later, forwarded a copy to JDB and got my check". "I could have waited on pursuing a judgment & simply asked the JDB to send me payment for my costs, but i guess I just felt like getting the judgment. I occasionally look up my name in the system and review the case and it still brings a smile to my face to see the line with the entry of judgment. Totally worth the effort for me". https://drive.google.com/file/d/0BySXxIwHA4lVclpKU1czWFpnQms/view?usp=sharing&resourcekey=0-UYqONg6-k65z_0jWRYmgYA
  20. Source Page - https://www.sdcourt.ca.gov/sdcourt/smallclaims2/smallclaimshowtocollect Costs After Judgment A judgment creditor is entitled to recover certain costs incurred in enforcing a judgment. The judgment creditor is also entitled to claim 10% simple interest on the principal amount of the judgment. Costs must be added to the judgment within two years of incurring them. Interest may be added at any time. Accumulated costs and interest are added to the judgment by filing a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest (MC-012)PDF with the clerk. Complete the form and have it sent by first class mail or served personally on the judgment debtor by a non-party to the action who is at least 18 years of age. After serving the judgment debtor, file the original with the clerk.
  21. California law states that the “prevailing party” in a lawsuit is entitled to recover its costs from the other party. California Code of Civil Procedure §1032(a)(4) provides a variety of classifications which define the prevailing party for purposes of recovering costs in litigation. http://www.hidalgolawfirm.com/losingparty.htm Losing party pays prevailing party's costs in California You will need to file a memorandum of costs: https://www.courts.ca.gov/documents/mc012.pdf I think this will get you started. One of the California guys responded to my post on Cost Bills after receiving a check in the mail. Hopefully he will chime in.
  22. Anything with Cavalry Portfolio - Citibank What would be a sample of your initial dispute letter causing these kind of walk aways.
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