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Everything posted by nobk4me

  1. Check the AAA rules. I'm not familiar with AAA, but I know in JAMS, the consumer rules limit arb costs to consumers. The most you would have to pay in JAMS is $250. AAA may have similar consumer-friendly rules. The arb forum rules trump the card agreement.
  2. No, you don't want to participate in litigation, as that would waive your arbitration rights. If the plaintiff sends discovery requests to you, you need to object to them. I would wait a little while, to see if the plaintiff responds to your motion, and to see what the court will do. If the court hasn't ruled in a week, then I would contact the clerk and see what is going on. Maybe you need to ask for a motion hearing. Note that it is possible the court will ignore your MTC. They shouldn't, but that sometimes happens. Here is case law to cite which holds that courts have to rule on the motion: Capital One v. Collins:
  3. You can also get free credit reports (one per agency per year) by going to I was also going to suggest bankruptcy. Because of the judgment you mentioned, this case, and the potential for other lawsuits in the future. Bankruptcy would wipe out the judgment. It might be difficult to vacate the judgment now, because of the time that has passed. A judgment can be like a lurking time bomb. Your partner may not have money now, but what if, in the future, he inherits money or property? The judgment creditor can seize it then. Another concern is, it sounds like your partner, although no longer under a guardianship, may not be capable of representing himself in court. So he would have to hire an attorney to represent him. Which costs money. It might be better to put that money toward a BK. But if you think you can settle this without bankruptcy, go for it. I would note that the best, and perhaps, at this time, the only viable strategy against creditors is arbitration. So you need to find out who the original creditors are, and see if there are arbitration clauses in their agreements. If the Cap One account was opened since 2010 (I think that's the year they removed arb), arbitration may not be an option.
  4. Could be a northern Indiana residence and southern Indiana court - or vice versa. The state is longer in the north-south axis than east-west. But I agree this has to be the wrong county.
  5. More thoughts: you do have another court date set, correct? The court may wait to resolve this at that hearing. Be sure to attend the hearing. If the plaintiff doesn't show up, ask for a dismissal with prejudice. The only thing that should be the subject of this hearing is your arb motion. You need to be respectful, but firm, that there is a jurisdictional motion before the court that needs to be addressed. If the plaintiff hasn't answered it, then you should win by default. If the court keeps playing its BS game, that this is a settlement case, you need to be firm and insistent, that the motion needs to be ruled on. The controlling case law is Capital One v. Collins: Print out the decision and bring it with you to the hearing.
  6. Yes, Midland is supposed to cease collection in cases like this. See their "Consumer Bill of Rights": It wouldn't hurt to contact them and show that this is a medical hardship case and your partner's only income is SSDI. But I wouldn't count on them doing the right thing. They have sued your partner. They ARE dealing with your case, and they are serious about this. If they get a default judgment, they would be happy with that. They might not try hard to collect, but they won't vacate the judgment. There is always a chance your partner could win the lottery.
  7. Then, I would suggest that you not gamble, and answer the lawsuit. You should emphasize to both the court and the plaintiff that you have a new address, so they won't keep sending things to your old address. You have been doing a lot of research on how your court operates. If it looks like waiting is too much of a gamble, then file the answer, even if they really didn't serve you.
  8. If the court has set a trial date, then the court is assuming the service is valid. Ignoring this will result in a default judgment. Yes, Midland may not be able to take anything, as SSDI is exempt income, but they could make his life difficult. If they call him in for a debtor's exam, and he ignores that too, there could be a warrant for his arrest. If he is living 2-1/2 hours away from the court house, then I suspect he was sued in the wrong venue. Which is a FDCPA violation. I would advise contacting a consumer attorney. Here is a link to one I have used, with success, who also practices in Indiana: If you don't use the services of an attorney, then I would suggest writing a letter to the court, telling them that the named defendant does not live at the address that was served, and that the court does not have personal jurisdiction over the defendant. (Assuming this is the wrong court entirely.)
  9. What usually happens in Ohio is that service is first attempted by certified mail. This is sent out by the court, not the plaintiff. I assume the court is using the address provided by the plaintiff, who may not know that you no longer live there. Failure of certified mail service can mean several things: a refusal of the letter (although they might say refused instead), the addressee fails to sign for the letter (even if sent to the right address), or, as in this case, the letter was sent to the wrong address (but the court may not know it's incorrect). The next step the court usually takes is sending out the summons by regular first-class mail. Unless the letter is returned as undeliverable, that will be considered valid service, and starts the 28-day clock in which you have to answer. And the plaintiff has the option of requesting special service by a person. Is your court NOT taking the second step of sending the summons out by regular mail? If so, then I would agree, answer it soon, without being officially served. If they do take the second step of regular mail, then I would watch the court docket and answer after that is done. Question: is your previous address now occupied by someone you know? Such as a former roommate or family member? A lot depends on what the current occupant does with the mail. If this second mailing is simply thrown away, the court will consider you served. The current occupant should write on the envelope "No such person at this address" and put it back in the mail box. If you know the current occupant, they should tell you they got mail for you. But who knows what people do, right?
  10. No, you can't assume the motion was granted. I wouldn't call the court either, just yet. The court will give the parties lots of time and assume that things might be slow in the mail, etc. But I would keep a careful watch on the court docket. If nothing happens in another month, then I would call the court.
  11. You need to wait until you are served (properly) before you respond to the lawsuit. But keep an eye on the court docket, to make sure the court doesn't accept (sewer) service at your old address. You don't need to hold off on your MTC Arb to see how the courts rule on this. IT WORKS. I know, I filed what was probably the first MTC Arb in a debt collection case in Ohio, in 2009. It worked. You also need to focus on your case, not to wait and see what happens in some other case, by which time it may be too late for you to file the MTC Arb. Note, you are probably aren't going to find a lot of case law on arb in debt collection cases. Because case law is made at the appellate level, and if an MTC Arb is granted, the JDB simply quits. They don't appeal these cases, because the pro-arb law is so strong, and it's easier and cheaper for them to move on to easier prey. Please check out these threads for examples of MTC Arb in Ohio (near the end of the threads, especially read my suggestions. Not bragging here, just successful and experienced in Ohio): Here is some debt collection arb case law in Ohio. It's favorable to debtors who sought arb: Capital One v. Collins: Capital One v. Rotman:
  12. I would advise that you not get fixated on trying to win this case through discovery and defeating a MSJ. As your court's statistics point out, that court is a judgment mill (so to speak) for JDBs. Arbitration is the best way to defeat them. Get your case out of the railroad court and into the expensive JAMS arb forum. File the MTC Arb, and ask for a stay pending arb.
  13. The only thing I would change is, in the conclusion, where you ask for a stay pending arb, you quote the Ohio Revised Code and italicize shall, as I did. But you need to add Emphasis added. At the end, to show that the word was not italicized in the text of the statute.
  14. I have not personally seen abuse from a debt collector. But, I try to avoid phone contact with them. I have heard/read reports of abusive collectors. On DB there was a report of someone being called a racist slur by a collector. Yes, it was some time ago.
  15. I think we're getting a bit off-topic regarding the OP's issues, but I do want to refute the assertions made here that JDBs/CAs don't violate anymore. I won my last FDCPA case four years ago. The only reason I have not had any cases since then is I have not received any communications from debt collectors since then. This is probably due to being on WebRecon and the age of the debts. IMO, debt collectors will continue to violate, For two reasons: 1. Violating is profitable. Debt collectors don't get debtors to pay up by being nice. They do by being abusive and threatening. Most people don't know their rights, so the CAs consider the payments to FDCPA plaintiffs as part of the cost of doing business. And they can weed out the few consumers who do know their rights through services like WebRecon. 2. The types of people who work as debt collectors. Often they are ex-cons and dope addicts. This must be a dream job for them, getting paid for being a sociopath. In addition to antisocial personalities (with issues like aggression, hot tempers and poor impulse control), there are the pressures of the job, like a boss griping at them to produce more results. That's a recipe for violations. To really understand the world of debt collectors and JDBs, I recommend the book Bad Paper by Jake Halpern. Must reading for people with debt.
  16. Filing objections is voluntary. You only file objections if you disagree with the magistrate's decision and want to contest it.
  17. Did you read my posts above, particularly regarding the proposed order for the judge to sign?
  18. And, in your answer, in the final, Wherefore clause, you mention a Credit One agreement. I thought your OC was Comenity.
  19. I would suggest these changes to your MTC Arb: I would suggest replacing the text of the Law and Argument section with the following: . The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. Ohio Revised Code Section 2711.01(A) states that "A provision in any written contract . . . to settle by arbitration a controversy that subsequently arises out of the contract, or out of the refusal to perform the whole or any part of the contract . . . shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or equity for the revocation of any contract." Ohio public policy favors the enforcement of private arbtitration agreements. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 623 N.E.2d 39. See also, N. Ohio Sewer Contrs., Inc. v. Bradley Dev. Co. (2005), 159 Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650; Junkins v. Spinnaker Bay Condominium a$$'n., Ottawa App. No. OT-01-007, 2002-Ohio-872. Any uncertainty that exists with regard to the applicability of an arbitration clause should be resolved in favor of coverage. Id. An arbitration clause should not be denied effect unless it can be determined to a high degree of certainty that the clause does not cover the asserted dispute. Owens Flooring Co. v. Hummel Constr. Co. (2000), 140 Ohio App.3d 825, 749 N.E.2d 782. See also Willis v. Linnen, Summit App. No. 20775, 2002-Ohio-2000. The law favors and encourages arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 128 N.E.2d 89. Request for a Stay Pending Arbitration The Defendant asks that this case be stayed pending arbitration. Ohio Revised Code Section 2711.02(B) states: "If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement . . ." (Emphasis added.) ­­­­­­­­­­­­­­­­­­­­­_________________________________________ The reason for my suggestion re the MTC Arb is: (1) to make sure the Supreme Court citation is there. It's always good to let the court know how the highest court in the land regards arbitration. (2) to get Ohio law cited there too, so the court knows what state-level policy is. (3) to cite the Revised Code language regarding a stay. The court needs to know that state law mandates a stay. There is really no discretion there. Which is why I italicized shall. And, your proposed order is totally off. What you want the court to do is STAY the case pending private, contractual arbitration. Period. That's it. The whole point of the MTC Arb is to bring the court case to a screeching halt. You don't need the court to order YOU to initiate in JAMS. If you want arb in JAMS, what's stopping you from filing a claim yourself, right now? Why do you need the court to order you to do that? (Not trying to be harsh, just playing the devil's advocate.) And, if any party is to be ordered to file in JAMS, it's the plaintiff. There is Ohio case law to that effect: Capital One v. Rotman:
  20. In response to some of the comments above: Ohio is not a community property state. The 14 days in which to file objections starts with the issuance of the magistrate's decision. The magistrate's decision is a preliminary decision, and has to be approved by the actual judge to be final (at least with regard to the motion for a more definite statement). If you think filing objections is a losing battle, then don't file them. Not filing them won't hurt you if it's a losing battle, and no, it's not game over. If there is any doubt when the 14-day clock starts within which you need to file an answer to the complaint (14 days after the magistrate's decision or 14 days after the judge adopts the magistrate's decision), then do it earlier. You do need to file an answer, with an affirmative defense of lack of jurisdiction due to the arbitration clause, and a Motion to Compel Arbitration. Arbitration is the best way to beat JDBs. Filing an answer in Ohio does not waive your arbitration rights. Going farther, such as engaging in discovery, will do that. See Land v Byrider:
  21. I would file objections within the 14 days. If you don't, the magistrate's decision becomes final and you lose appeal rights as to that decision. If the magistrate's decision is upheld by the judge, then I would file an answer, which should include the affirmative defense of lack of jurisdiction due to the arbitration clause, and file the MTC Arb. Arbitration works very well against JDBs. Filing the objections should buy some more time too.
  22. If you do have a FDCPA claim against them, I would recommend this law firm in Ohio, which I have used with success:
  23. And, attached to your MTC Arb should be two things: 1. The entire Credit One agreement. 2. Your affidavit, which explains where you got that agreement, that the plaintiff's attorney gave it to you at the court hearing on January 25. Note that an affidavit needs to be notarized.