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Everything posted by nobk4me

  1. Lexise, was the attached affidavit from the OC, MBNA, or the JDB, CACH? I am dealing with these slimebags, and any info on their operations can help me defeat them. Would you be willing to identify the affiant and the notary? If not in this public forum, then by PM? I suspect these affidavits, if allegedly from the OC, are fraudulent.
  2. Peachy - attach the letter to Zwicker to the motion. I think you need to do either MTD (or in alternative) MTS or MTC (and) MTS. I would try for dismissal/stay first, and if denied, then try MTC/MTS. Oregonpilot - attach the agreement to the motion, explain that arbitration in the forums is different than the court's, in that the forums are specified in the contract. After all, the creditor is alleging that you breached the contract, right? So you can claim that if they don't comply with the arb clause they are breaching the contract. Plus, the forums are private, and you value your privacy and would rather not have this dispute aired in the public forum of the court.
  3. Just put 2 in the pleading title, Motion to Dismiss, or in the alternative, Motion to Stay pending Arbitration. I haven't done a Motion to Compel. But I think if one were to do this, it would be a Motion to Compel Arbitration and to Stay the case pending arbitration. The angle I took was to seek dismissal, as the agreement language was if either party elected arb, then neither party could litigate claims in court, hence, the court has no jurisdiction. Plus the way the arb law is written in my state, ar arb award can only be confirmed in a court of common pleas. The case was filed in a municipal court. So even if the JDB were to win an arbitration award, they couldn't come back to the muni court with it. So that is what propelled me to file the MTD/MTS.
  4. So it sounds like the Plaintiff requested mandatory arbitration (by the court, not a forum like JAMS or AAA) in its complaint? You need advice from someone familiar with Oregon law, where this might be part of the RCP. I would file a motion to dismiss (for lack of jurisdiction), or in the alternative, to stay pending arbitration because of the arb clause in the contract. But, as I said, Oregon law may be peculiar on this.
  5. Ask for both, but in the alternative. File a motion to dismiss (for lack of jurisdiction), or in the alternative, to stay pending arbitration. That's what I did, and the court denied the MTD but granted the Motion to Stay. And the JDB lawyer didn't even bother to respond, so I should have won the MTD by default. Expect the court to bend over backward for the creditor and not dismiss, so give them an alternative. My state's arb law, which I cited in the motion, on stays pending arb is identical to the Federal law cited above, so if the court denies a motion to stay they are setting themselves up for reversal on appeal.
  6. But, did the OP elect arbitration in acordance with the cardmember agreement, which is different than the arb process overseen by the court?
  7. Why is it so many of these so-called 'consumer' lawyers advocate not fighting lawsuits and just filing bankruptcy? My view is BK is a last resort option. Don't just take someone's word that it's the best option for you. Depending on your situation, you could lose too much (assets) in the process. Be sure to research the BK exemptions in your state. And, are you judgment-proof? Just because they may get a judgment doesn't mean they can collect on it.
  8. usc, would you be willing to identify the GEMB affiant, either here in the forum or by PM? I may be dealing with a JDB that bought an alleged GEMB account in the future and would like to be prepared. I suspect these alleged OC affidavits may be forged. All the alleged BofA affiants I have seen mentioned in the various forums have LinkedIn pages. The JDBs may be just getting names off the internet. The affidavit was notarized in Montgomery County, Ohio? That's strange, as GEMB is a Georgia company. Check out the notary with the Ohio secretary of state. Where is the JDB located? Also, isn't it odd that the account was supposedly sold to the JDB in May 2009, but the affidavit was prepared in March 2010, obviously for litigation? Are the signatures for the affiant and notary legible, or are they scribbles anyone could make (which is what I have seen)? I was surprised to see an affidavit from the OC (allegedly) in a JDB lawsuit against me, too. I used the arbitration strategy to stay the case - apparently indefinitely.
  9. You could request an extension of time in which to respond, if you really need more time. In your motion, fully lay out the timelines as you stated above, and attach copies of the envelope with the postmark. But unless the admissions are really voluminous, I would just answer them. Deny is always a good answer.
  10. 66% success rate so far. Got a dismissal w/o prejudice with an OC. Got a stay pending arb with a JDB.
  11. Yes, in 2007, private sector, retail position. That was before my credit/debt situation went down the toilet, but was heading there, a lot of debt, with CLs being cut, but no delinquencies. Got the job, don't know if the credit report made a difference. However, talking to co-workers, some of them had debt problems, so maybe the employer didn't care. But then, why pull the CR?
  12. You should edit your post above to remove any identifying information, such as case number, your name, etc. Also, it looks like you are mixing your answer to their allegations and your affirmative defenses. Keep them separate, and for the answer to the allegations, keep them simple: admit, deny or lack knowledge. Then list the affirmative defenses in a separate section.
  13. Citi is nasty and will sue you. If it is with a lawyer in your state they probably plan on suing you. I would exercise the arb clause in the DV letter, as it may be the best strategy you have.
  14. Are you required to sign the answer under penalty of perjury in your state? I wouldn't admit to owing the debt to the OC. Especially if the JDB didn't attach any documents from the OC to the complaint. Maybe you had an account with AMEX, but how do you know this is really your account? Make them prove it, and if you admit to the debt they don't have to prove it. You could say you lack knowledge, if you don't want to outright deny owing the OC. As for the first allegation, your residence and court's jurisdiction, if you want to use the arbitration strategy you should admit to your residence but DENY that the court has jurisdiction. And raise lack of jurisdiction due to the arb clause as one of your affirmative defenses.
  15. There is great case law in Ohio regarding Asset Acceptance: Asset Acceptance v. Proctor,, which holds that the plaintiff must provide a complete accounting of a debt from a zero balance.
  16. Be sure to oppose the SJ motion. Usually on appeal you can't raise arguments that you failed to raise in the lower court. So if you fail to make an argument now, you will in essence waive your right to appeal the issue later.
  17. It sounds like April 13 is your answer date, the date by which you need to file the paper you are preparing, the denials and affirmative defenses, your answer to the complaint. Not sure about appearance. Usually attorneys are required to file a notice of appearance, not pro se's. Check your local court rules, on their website, and call the clerk's office to ask.
  18. In your first post, you said you have to file your answer by April 13. But you say you have a court date next week? That seems unusual. From what I have seen in Ohio, you file your written answer, and then the court sets a date for a pretrial hearing, usually a few weeks after the answer has been filed. I would suggest taking the original answer and 2 copies to the court, have them stamped by the clerk, and sending a stamped copy to the JDB attorney. For arbitration, you need to file a motion to either compel arbitration, or to dismiss, or in the alternative, to stay pending arbitration. It's best to do that before the pretrial, so at the pretrial you can focus on the arb issues and lack of the court's jurisdiction due to the arb clause. This site can help you draft such a motion: Check out Ohio arb law, ORC 2711, and the Ohio Rules of Civil Procedure, and the local rules of court, which should be on the court's website. And it never hurts to ask the clerk about what to expect next. They may be helpful, or may not, but you won't know unless you ask.
  19. What the JDB attorneys did here, file a lawsuit without any supporting account papers, is apparently their common practice. See this site for more info:
  20. I addressed this issue in this post in another thread: Address it like a logic problem: IF this was really a WAMU account, THEN there is an arb clause, and you are entitled to arbitration. ALSO, to the OP: should edit your posts that give the exact dollar amount being sued for to more approximate, fuzzy numbers, as the plaintiff may be able to find this thread thru Google.
  21. Dump the lawyer, he's a jerk. You are better off going pro se than with this albatross around your neck.
  22. If you are being sued by a JDB, then Cap One is out of the picture - no longer involved, they no longer own the account. So there is no need to send anything to Cap One.
  23. As for your denials, that will do. The court already has a copy of the plaintiff's complaint. You might include an introductory sentence that you are responding to the plaintiff's numbered allegations in the order presented in their complaint. Will the court ask for the cardmember agreement? Maybe. Since it's a WAMU (since bought by Chase) alleged account, you can say, based on your research, information and belief, all such accounts have arb clauses. See what you can find on this site: And you can insist that the plaintiff produce the agreement. Unjust enrichment: no, it doesn't matter that they used this on you. This is a JDB that bought the alleged debt for pennies on the dollar. So they would be receiving more money that they are entitled to receive. Doctrine of laches: they waited too long to file this claim, therefore the claim should be barred. (Not the same as being outside of the statute of limitations, just that their delay makes it harder to produce evidence - for both sides.) Usury: illegally high interest rates. In Ohio, over 25%. Let's see, they bought the alleged debt for probably under $100, and now want to collect over $1500. Well over 25% interest. Defense: Plaintiff's claim is barred because of charging an effective interest rate that constitutes usury. Unclean hands: Have they violated the FDCPA? They probably have. Or will. It would have helped if you had sent a DV letter at first contact, as that would set up your rights. But it's up to you if you want to use this. It's better to assert it now and drop it later if inapplicable. Wording: Plaintiff's claim is barred by the doctrine of unclean hands. Or you could assume that since it's Midland, they will be using dirty tricks, like their infamous false affidavits. That's a matter of public record. What else? They didn't include any supporting documentation? Then say, as another defense, Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure. And add as a final defense, that you reserve the right to add additional affirmative defenses at a later time as evidence becomes available.
  24. Good tutorial on motions. Only problem is in my court, they cost money! $20 filing fee per motion.
  25. You need to file a motion to dismiss, or in the alternative, to stay the case pending arbitration. Say that if the court chooses not to dismiss, then they should stay the case pending arbitration pursuant to Ohio law, which requires the court to issue a stay on the request of a party.