misbhavn

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About misbhavn

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  1. There has been no communication from the court whatsoever. The only reason I knew my order was denied is because I asked the clerk about it when I filed my answer on the other two cases. To date, I never received anything from the court indicating the order was denied. I have not spoken to the judge. I was required to submit an order for the judge to sign when I filed the MTC. The judge simply drew a long line diagonally across the page and wrote " Denied No C.O.S.". I have been given no indication either way as to whether or not I can refile the MTC. I have yet to file to MTC in the other two cases because I want to make sure I have all my ducks in a row this time. I used the MTC provided by @fisthardcheese in his arbitration thread.
  2. ACCELERATION UPON DEFAULT: Purchaser shall be in default hereunder if: Purchaser fails to pay any scheduled installment when due; Purchasers fails to perform any other obligations hereunder; or Seller reasonably believes that the prospect of payment or performance is impaired. If purchaser is in default, Seller may, at its option, without notice or demand, declare immediately due and payable the entire unpaid balance of the contract less any credits or refunds of unearned Finance Charge or insurance premiums as described above under the paragraph entitled "prepayment, Renewal and Financing". Purchaser also waives the right to receive notice of the seller's intent to accelerate the debt. ACCOUNT CHARGE-OFF: In the event purchaser defaults on this Agreement which results in subsequent charge-off of the account by the owner of this account, the said account owner may, at its option, without notice or demand, cancel any existing insurance policies or repair service agreements. In the event of insurance policy or repair service agreement cancellation, no refund of any amounts paid by Purchaser for any such policy or agreement will be due to Purchaser. Refunds will be applied to the balance of the defaulted account. If at any time the Purchaser elects to cancel the insurance policy or repair service agreement, all refunds due under the policy will be credited to the account.
  3. @Brotherskeeper There are NO consumer law violationS that I am aware of, but I'm not exactly sure what the laws are on the subject. Below is the arbitration clause in the agreement. I apologize for the caps. YOU AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DISPUTES RELATING TO ANY DOCUMENTATION GOVERNING YOUR OBLIGATIONS UNDER THIS AGREEMENT, ANY CLAIM DISPUTE, OR CONTROVERSY ALLEGING FRAUD, MISREPRESENTATION, OR OTHER CLAIM, WHETHER UNDER COMMON LAW, EQUITY, OR PURSUANT TO FEDERAL, STATE, OR LOCAL STATUTE OR REGULATION, ANY DISPUTE RELATING TO COLLECTION ACTIVITIES TAKEN BY CONN’S, OUR AFFILIATES, SUBSIDIARIES, AGENTS, OFFICERS, EMPLOYEES, SERVICERS, DIRECTORS, OR ASSIGNS REGARDING MONIES OWED UNDER THIS AGREEMENT, OR THE SCOPE AND VALIDITY OF THIS ARBITRATION CLAUSE (INCLUDING DISPUTES AS TO THE MATTERS SUBJECT TO ARBITRATION), OR THE ENFORCEMENT OR INTERPRETATION OF ANY OTHER PROVISION OF THIS AGREEMENT, SHALL BE RESOLVED BY BINDING INDIVIDUAL (AND NOT CLASS) ARBITRATION BY AND UNDER THE ADMINISTRATION OF: (1) THE NATIONAL ARBITRATION FORUM (“NAF”) IN ACCORDANCE WITH ITS CODE OF PROCEDURE IN EFFECT AT THE TIME THE CLAIM IS FILED, (2) THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS ARBITRATION RULES IN EFFECT AT THE TIME THE CLAIM IS FILED, OR (3) IF FOR ANY REASON EITHER THE NAF OR THE AAA IS UNABLE OR UNWILLING OR CEASES TO SERVE AS AN ADMINISTRATOR OF THE ARBITRATION, OR IN ANY EVENT BY AGREEMENT OF THE PARTIES, THE PARTIES AGREE TO SELECT A LOCAL ARBITRATOR WHO IS AN ATTORNEY, RETIRED JUDGE, OR ARBITRATOR REGISTERED AND IN GOOD STANDING WITH AN ARBITRATION ASSOCIATION, AND WHO IS EXPERIENCED IN CONSUMER FINANCE AND DEBT COLLECTION, TO ARBITRATE THE DISPUTE CONSISTENT WITH THE REQUIREMENTS OF THIS AGREEMENT AND PURSUANT TO SUCH ARBITRATOR’S RULES. THE CLAIM OR DISPUTE WILL BE ARBITRATED BY A SINGLE ARBITRATOR ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ACTION. YOU AND WE ARE WAIVING THE RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES IN A COURT OF LAW. ANY ARBITRATION HEARING THAT IS HELD WILL TAKE PLACE AT A LOCATION THAT IS CONVENIENT TO YOUR RESIDENCE. THIS ARBITRATION CLAUSE ID MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. 1-16), AND NOT BY ANY STATE LAW THAT MIGHT OTHERWISE APPLY. JUDGEMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. YOU UNDERSTAND THAT UNDER THIS ARBITRATION CLAUSE, YOU EXPRESSLY WAIVE YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR A CLASS MEMBER ON ANY CLASS ACTION CLAIM YOU MAY HAVE AGAINST US, OUT AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS,SERVICERS OR ASSIGNS, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. THIS AGREEMENT DOES NOT CONSTITUTE A WAIVER OF ANY OF YOUR RIGHTS AND REMEDIES TO PURSUE A CLAIM INDIVIDUALLY (AND NOT AS A CLASS ACTION) IN BINDING ARBITRATION AS PROVIDED ABOVE. THIS ARBITRATION CLAUSE DOES NOT APPLY TO ANY LEGAL REMEDIES THAT MAY BE PURSUED TO COLLECT MONIES OWED UNDER THE AGREEMENT. THIS ARBITRATION CLAUSE IS AN INDEPENDENT AGREEMENT AND SHALL SURVIVE THE TERMINATION, PAYOFF OR TRANSFER OF THIS AGREEMENT. IF ANY PART OF THIS ARBITRATION CLAUSE IS FOUND BY A COURT TO BE UNENFORCEABLE FOR ANY REASON, THE REMAINDER OF THIS CLAUSE SHALL REMAIN ENFORCEABLE.
  4. Plaintiff's attorney has filed an objection to my motion even though it was denied. I suppose they anticipate my refiling it. In part, they are saying I've engaged in litigation . Can I be considered engaging in litigation by simply filing and answer and MTC? Here is part of the objection. I'd like to hear your thoughts? A. The original contract with Plaintiff., has been terminated due to Defendant's default, therefore the right to arbitration has been terminated. 4. The original contract between the parties has been terminated due to the defendant' s default. Per the terms of the agreement at the time of Defendant's original contract with the Plaintiff, Plaintiff can choose to terminate this Agreement as a result of the Defendant defaulting on his payments. As Plaintiffs records indicate, the Defendant's account was charged off on or about [REDACTED], thereby terminating the agreement between the parties. 5. As illustrated above, the Arbitration Agreement referenced in Defendant's Motion was terminated due to the Defendant's default on the original contract and Defendant's interest in arbitration did not arise until after the contract had been terminated. There is no longer an Arbitration clause that would apply, and thus it would be improper for the Court to stay or dismiss the suit at bar and order arbitration. B. The Defendant has waived its right to arbitration by engaging in the litigation process 6. The Texas Supreme court has recognized that a party waives an arbitration clause by substantially invoking the judicial process to other party's detriment or prejudice. See Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008). Defendant' s motion has caused Plaintiff to go to the trouble of creating and filing its response. If the court granted Defendant's request for dismissal of Plaintiff's suit, it would unfairly prejudice Plaintiff and be to the detriment Plaintiff, due to the costs of filing, service and litigation response thusfar. C. Defendant has not asserted any claims against Plaintiff. A Claim is required in Arbitration. 7. There is no claim here by the Defendant to pursue in Arbitration. In order to proceed to Arbitration, Defendant must bring forward some claim. Instead, Defendant is attempting to bring Plaintiff's claim against Defendant into the Arbitration arena. Plaintiff is not interested in engaging in Arbitration for its claim of the debt that is owed, they are solely interested in pursuing it within the litigation space. Defendant cannot determine where Plaintiff brings its claim where Defendant is the cause of the breach and has set forth no counter allegation. To provide Defendant with the ability to do so would unfairly prejudice Plaintiff and reward Defendant for their misconduct with respect to the contract.
  5. Thanks for all of the input guys. One quick question...if I file an affidavit as exhibit "x" and reference it in my amended MTC, I assume that the affidavit should have exhibit "x" on it somewhere, correct?
  6. This is correct. I filed my answer, the MTC and an order for the judge to sign at the same time and served Plaintiff's attorney by mail. I just forgot to include certificate of service at the bottom of the MTC.
  7. There has been a little movement in the case. The judge denied my MTC arbitration because I forgot to include a certificate of service and has scheduled a pretrial conference. I plan to resubmit my corrected MTC. My question is should I change the title to Amended MTC arbitration or just resubmit with the same title?
  8. So I filed my answer today along with MTC Arbitration. I don't know how much time this will buy but it's a start I guess.
  9. I spoke to the attorneys (Scott & Associates) representing the OC. They confirmed that the OC still owns the debt and that they are handling the legal part. The tab on all three cases is now running at about $5500 after some legal fees have been added. They are willing to offer a settlement, albeit not a large one. Any payment plans would require me to sign off on a judgement, which I really do not want to do. The problem is that I don't have the almost $4k it would take to settle. I can get the money to settle one of the smaller ones now but that's it. I'm really at a loss as to what I should do. Obviously, I need to answer the first complaint, which I plan to do tomorrow. Should I claim the arbitration as an affirmative defense simply as a stall tactic?
  10. A copy of the complaint was delivered by mail yesterday. It states that usual 14 days to respond. My issue is I'm unsure how to calculate the time to respond. The order for alternative service was signed on 1/3/2019. If I use that date the deadline was 1/17/2019. Should I expect any kind of settlement on this. If they can prove up their case what incentive would they have to agree to a settlement. I'm assuming I should just answer with a general denial to buy some time to reach some kind of agreement. Thoughts?
  11. It was not a lease. Conn's has their own in-house financing. It's not a revolving credit line and no card is issued. I appreciate everyone's input regarding this matter. It seems the arbitration route may be a non-starter. What's my best course of action here?
  12. @fisthardcheese I have never tried arbitration, however I did get a JDB to dismiss for nonsuit with the help of @texasrockerThe OC for all 3 cases is Conn's Appliances. I no longer live there due to divorce, however, I do still live in the same county so venue is proper. Being the OC, I would assume that they should have no problem coming up with the necessary documentation to prove their case. I did manage to dig up a couple of the contracts and there is an arbitration clause in there for either NAF or AAA. It does state that "This arbitration clause does not apply to any legal remedies that may be pursued to collect monies owed under the Agreement". Does this mean that I cant claim arbitration as an affirmitive defense?
  13. So it appears that a process server has tried to have me served at my ex-wife's. I called the guy and told him he's trying to serve me at an address that I haven't lived at in two years, but he stated I could only be served there. At any rate, I have found the cases (three of them totaling a little over $5k) at the JP courts online. It states online that requests for alternate service have been approved. At this point, should I just go down to the court and get copies of the summons? This in in Houston, TX. Since this is an OC, I'm thinking arbitration may be my best chance. My hope is that they won't want to follow me into arbitration. The problem is that I don't know if there is an arbitration clause in the contract. Any advice on how I can find this information?
  14. Update; Jerry Jarzombek is taking the case on contingency. It was a misunderstanding that I thought he would not. This is a weight off my shoulders.