nobk4me

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Everything posted by nobk4me

  1. My understanding is that anyone can ask JAMS for a fee waiver. Unless you are in CA, and meet the income requirements, there is no guarantee it will be granted. But it never hurts to ask. I will send you a PM.
  2. Definitely raise the Statute of Limitations defense. It has probably expired, so they are barred from suing you. There was a recent court case in Ohio in which Midland was exposed for their false affidavits. Cite this case to strike the JDB's affidavit. If you perhaps had this account while in high school - that raises issues of whether a contract made with a minor can be enforced.
  3. You need to have a Citi agreement with JAMS in order for JAMS to accept your filing. You do have to use the arb forums in the agreement. Check at ccarbitration.com, there may be a Citi agreement with JAMS there. You can try arbitration now, but since you went thru discovery and now are at the SJ process, it is likely that your opponent will argue that you have waived your right to arbitrate by actively participating in the litigation process and thus have acknowledged the court's jurisdiction. Try to find case law in your state on this, and also check your state's statutes on arbitration.
  4. Unfortunately, trueq isn't on this board anymore. He now frequents debtorboards.com.
  5. The problem is, the OP is in Florida. There, if you want to use the arbitration strategy, you must do so at the outset. Even filing an answer may cause you to lose the opportunity to use arbitration. From what I've read here. Look up posts by MG05.
  6. This provision may apply to arbitration within the courts, not to arbitration in the private forums. You need to look at the rules for the private forums, AAA and JAMS, for the process to follow to initiate. I would suggest JAMS, as it is more expensive for the creditor. Or, instead of you initiating, write the lawyers back and tell them to initiate themselves. They are the ones who have a claim against you. Pursuant to the contract, they should be pursuing the claim in arbitration. [Which they don't want to do because it's expensive, more expensive than court.] You have elected arbitration, and by doing so neither party can file claims in court. If they try, they have violated the FDCPA. (Taking an action they are barred from taking.)
  7. Actually, it's called accord and satisfaction by use of a conditional payment. Part of the UCC, incorporated into many states' laws. Check your state's laws on this.
  8. nobk4me

    A little advice

    I see you are in Wisconsin. There, when the SOL expires, so does the debt, from what others have posted. Not only can't the creditors sue you, the debt is extinguished. It's called a statute of repose, and only WI and MS have this. Something to be careful of in settling and making payments, is that by making a payment you may extend the SOL. It depends on how your state's law is worded.
  9. You need to answer the requests for admissions (deny is a good answer for each one). If you fail to deny them, they will be deemed admitted. And then they have the facts to win the case.
  10. Ask for both. File a motion to dismiss, or in the alternative, to stay the case pending arb. I will send you the motion I filed by PM. However, I filed my motion before initiating arb (in fact, arb has not yet been initiated by either party). The court denied the MTD, but granted the motion to stay.
  11. Yep, that's my experience in Ohio as well. The creditor's lawyer doesn't have to say much, because the judge or magistrate, who is supposed to be neutral, does all their dirty work for them.
  12. That's exactly the motion one should file, it's not a different method. It's about using the contractual arb clause to deprive the court of subject matter jurisdiction. What I have done is file a motion to dismiss, or in the alternative, to stay the case pending arbitration. The dismiss part was denied, even though the plaintiff didn't even bother to respond to it. (That's how pro-creditor the court is.) But the stay was granted, because my state law mandates a stay pending arbitration at the request of a party. Pleading in the alternative saved the day, I think, for if I hadn't alternatively requested a stay the dismissal would have been denied and the court case would have gone forward.
  13. How was the card actually used, for business or personal purchases? There is case law that actual use trumps the label, it's been posted on this forum previously.
  14. Yes, you can file a motion for SJ. Any party can. You need to show that there are no genuine issues of material fact to be heard at a trial and you are entitled to prevail on the basis of the papers submitted to the court (exhibits in your motion). They included an agreement from the wrong OC? Maybe that raises issues of who is the real party in interest? I would definitely bring that to the court's attention.
  15. In my local Maybury court, they deny the plaintiff's SJ motion for the apparent purpose of getting the parties together (under the bait and switch tactic of setting a trial date) to push them into some kind of settlement. So beware of that. The court may not be following the rules of evidence at all, but baiting you.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. But, did the OP elect arbitration in acordance with the cardmember agreement, which is different than the arb process overseen by the court?
  22. 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.
  23. 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.
  24. 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.