nobk4me

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Everything posted by nobk4me

  1. You don't need to repeat the plaintiff's charges, just type denied after the number. You should title the section Affirmative Defenses. Other defenses you can use: unjust enrichment, lack of privity, failure to prove assignment in accordance with ORC 1319.12, plaintiff has failed to mitigate its damages, doctrine of laches, usury, unclean hands. Here an example for lack of privity (taken from another post): Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. On the certificate of service, you can include the caption, and you should sign it (sorry, forgot to state that earlier) and indicate the date on which you mailed it. Better version: This is to certify that a copy of this pleading has been served on the plaintiff's attorney by deposit into the US. Postal Service, First Class, postage prepaid on ___________ (date). ___________________ (signature) Type your name Include the date at the end of your answer, too.
  2. See what you can find on this site: http://teh402.blogspot.com/ or PM trueq or BrokeBob for agreements. I would only mention JAMS if the plaintiff tries to say there are no arb forums that will take these cases.
  3. Yes, this ending "prayer" (as it is called in legal circles) is appropriate. You want to prepare the answer on plain 8.5 x 11 paper. There should be a caption at the top, listing the name of the court, the name of the case (Plaintiff vs. You), and the case number. Give the document a title under the caption, DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT. First paragraph: Now comes the defendant pro se filing this answer to the plaintiff's complaint. 1. Denied. 2. Denied. thru no. 12, etc. Then: Affirmative Defenses (list each separately). An ending paragraph (from the post above): FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied, or controverted. WHEREFORE, Defendant prays the complaint herein is dismissed with prejudice at the Plaintiff's costs and for any other relief deemed just and proper under the circumstances. Respectfully submitted, Your signature Your name, address, and phone number. (Typed) On a separate page, type a certificate of service, saying This is to certify that a copy of this pleading has been served on the plaintiff's attorney by regular mail. Make 2 copies. Take the original and the copies to the court house clerk. Have them stamped by the clerk. Send one to the JDB lawyer and keep one for your records. The clerk will take one for filing.
  4. I think the problem here is people using "elect arbitration" as magic words that will automatically dismiss the case. It takes more than that. It takes researching the law, statute and case law, and filing the appropriate motions with good legal arguments. I see a lot of posters in the legal forum who have been sued and don't have the slightest clue how to file an answer, what an affirmative defense is, what discovery is, what summary judgment is, etc. Even after being given advice they seem totally lost. These people are probably going to lose whether they use the arbitration strategy or not. It takes a lot of work and study to fight creditors in court or in arbitration. As for this comment: "Really? Judges can rule based on nothing or their own whims? I think they would be removed from office pretty quickly." How will they get removed from office? In my neck of the woods, there are elections, but nobody ever runs against a sitting local judge. The only time there is a contested race is when a judge either retires or dies. The fix is in here. There must be an unwritten rule, Thou shalt not challenge a sitting local judge. They have de facto lifetime terms. Adding to the problem is that people who have been shafted by the courts are impoverished, unpopular, or, usually, both. Debtors on the civil side and lawbreakers on the criminal side. Parties that often can't afford a lawyer or an appeal. People who are not popular with the salt of the earth voters in the community, who usually want a tough judge. I consider getting out of the Maybury court thru arbitration a victory.
  5. You need to file your answer by the due date DENYING all their allegations. Make a list 1 thru 12 and type Denied after each number. Then list your affirmative defenses. The first of which is The plaintiff has failed to state a claim on which relief can be granted. Read up on the arbitration strategy in the arbitration sub-forum. This case is an excellent candidate for arbitration, as it is from a JDB and for a relatively low dollar value. They will fold rather than pay the expensive fees for arbitration. Use this as one of your affirmative defenses, that the court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement. Check my postings in this thread for references and links to Ohio law: http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=300070 You will need to file a motion to dismiss, or in the alternative, to stay the case pending arbitration. File that with or right after your answer.
  6. Court costs are the filing fees and other fees the plaintiff has to pay to pursue the case. They can't get attorney's fees from you under Ohio law, ORC 1301.21. The court's fees are specified here: http://www.co.warren.oh.us/countycourt/costs/fees.pdf The pre-trial is not the place for offering evidence and cross-examining witnesses. That is what the trial is for. If the plaintiff tries to do this at the pre-trial, object. In my experience it isn't the plaintiff's attorney who will try to do this, it is the corrupt magistrate who will try to browbeat you into admitting the debt and settling. What the plaintiff is planning is there won't be a trial. They plan to file a motion for summary judgment, such that the case is decided on the written submissions of the parties. They will file a SJ motion, and you will have to respond to it. You need to do a lot of reading on this site and elsewhere, about arbitration, discovery, summary judgment and civil procedure. This is a link to the Ohio Rules of Civil Procedure: http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf I think arbitration is your best strategy. You need to file a motion, either a motion to compel arbitration or a motion to dismiss, or in the alternative, to stay the case pending arbitration. (This is what worked for me.) Read the law on arbitration in Ohio, ORC 2711, that I posted earlier. That is what you put in the pre-trial statement under applicable law. The beauty of the arbitration strategy is it denies the court jurisdiction. So you don't have to worry about discovery and summary judgement motions and dealing with a potentially pro-creditor local court. If your motion is granted, the JDB will probably go away because arbitration is expensive. Or if you want to settle with them, you will be in a better position. Your pre-trial statement, and what you say at the pre-trial, needs to focus on arbitration. You have elected arbitration, which removes the right of either party to litigate claims in court. This court has no jurisdiction. Even if the plaintiff were to receive an award in arbitration, they cannot come back to this court to confirm it, since under Ohio law only a court of common pleas can entertain such a motion. The court has to stay the case pending arbitration pursuant to ORC 2711.02(. A ruling either way on a motion to stay is a final decision and thus is immediately appealable. Keep hammering away on arbitration, what the Ohio Revised Code says, and that the court has no jurisdiction in the presence of the arb clause and your election of arbitration to resolve all disputes between the parties.
  7. I had a pre-paid legal plan for a short time, offered thru my employer. I had a consultation with one of the plan attorneys who did not do bankruptcy. I wanted to avoid the lawyers who do BK because I know that's what they would try to push me into. For me, that's a last-resort option, not the first resort. The consultation was very disappointing, to put it mildly. It was obvious that I knew more about these issues than the lawyer did. I had to explain to him that I was not a creditor. Plus, he was obnoxious and unpleasant to deal with, not at all sympathetic with my debt situation. And I suspect he planned to rip me off, by telling me he got a settlement for 75% when it was really less and pocketing the difference. He claimed it was impossible to settle unsecured debts for 50% or less. Maybe I just got a bad apple. Your mileage may vary. You may have better luck with a plan attorney who does BK.
  8. Research your state's exemptions regarding the car and cash/bank accounts. And claim your exemptions.
  9. Yes, I know I'm screwed. But there are no wages to garnish. Right now the monthly payment is affordable, but I'm afraid they might try to make the payment unaffordable. My understanding is in OH, they can raid bank accounts, but can only take amounts over $400. So the solution is obvious there. As for personal property, nothing worth taking or is exempt. They do have a lien on my house, which can serve as a deterant to other predator/creditors, I think. If they try to foreclose, I will Ch7 their azz, and they are certainly not my only or largest debt. And the property isn't worth that much. Mexican standoff, IMO. It isn't what they can do legally that is a worry, it's what they (being the creditor and their handmaiden court) might try that is what I would consider quasi-extra-legal. Like setting an unaffordable payment and then finding me in contempt of court and throwing me in jail. The modern-day debtors' prison that is not called as such. That has been the subject of a thread within the last month. And the magistrate is a SOB who might get his jollies doing that. Can't afford an attorney. Maybe the ACLU would do something in the scenario above? Or a media blitz from my cell? Too bad they didn't wait 6 months before filing suit, I could have used the arbitration strategy on them.
  10. File a request with the court for an extension of time in which to respond to their SJ motion, stating all the facts which you have set forth here. Have you filed a motion to stay the case pending arbitration? Maybe you need to initiate arbitration.
  11. dledhead, you asked about the pre-trial statement. This is covered in the local rules of the court: http://www.co.warren.oh.us/countycourt/rules/local_rules.pdf See Section 9.07. Section 9.06 covers the pre-trial conference.
  12. Is this the court's website? http://www.co.warren.oh.us/countycourt/index.htm If it is, it appears to be the equivalent of a muni court, even if it is not labelled as such. It is certainly not a common pleas court, which means that for arbitration, the court would not have jurisdiction, as an arb award can only be confirmed in a court of common pleas under Ohio law. Even though the plaintiff is a JDB, you need to be aggressive in defending your rights. It is harder for them to prove their case than an OC, but not impossible, especially in a pro-creditor court. They will have to prove chain of custody for assignment. Make them prove compliance with ORC 1319.12, taking assignment of debts. And any documents from the OC are hearsay unless they can get a witness from the OC to authenticate them. But, how do JDBs get around these difficulties? By lies and forgeries. You have to object to their affidavits and insist that they bring the proper, qualified witnesses to testify.
  13. Then raise Statute of Limitations as a defense. Make them prove that it hasn't expired.
  14. In Ohio you have 3 months in which to file a motion to vacate the award, in a court of common pleas. ORC 2711.13. Grounds for vacating the award are in ORC 2711.10. The creditor has 12 months in which to move to confirm the arb award. ORC 2711.09.
  15. You are right, to be safe do not admit that the court has jurisdiction. By using the arbitration strategy, you want to deny the court's jurisdiction. I would answer the complaint by admitting that you reside in the county, but deny that the court has jurisdiction.
  16. One thing to be careful of in Ohio law, on arbitration awards, is the creditor has 12 months in which to seek confirmation of the award in court (ORC 2711.09), but the debtor only has 3 months in which to move to vacate the award (ORC 2711.13). ORC 2711.10 lists the reasons for which an arbitration award can be vacated.
  17. I don't think it's a case of clerks providing legal advice. As far as I know, the clerks in my local court are not attorneys and have not attended law school. They do, however, appear to be reflecting the mindset of the court, which is that the court is not about law or justice, but is a collection agency for creditors. Plus there is the laziness factor. Apparently, a trial is the last thing a judge wants to do. "Work" is a dirty four-letter word. Hence the push to get parties to settle. And yes, they hate pro se's and the magistrates are rude, abusive and try to trick you.
  18. Another thought: I don't see that this has been addressed here, but what is the Statute of Limitations in your state, and has that expired? If it has, that would be a quick way to stop them. Even if the SOL hasn't expired, you can raise the defense of doctrine of laches, meaning they waited too long to sue you and too much evidence has been lost. Another defense you can raise is failure to mitigate their damages.
  19. You might want to address the Request for Production of Documents specifically, just to cover all bases. On Interrog 7, re witnesses, you might want to say you have no witnesses at this time, just to leave the door open in case you might want to call a witness. For defenses you might want to add unjust enrichment and usury. Read up on the arbitration strategy, to see if you want to use this. If so, include that as a defense, that the court lacks jurisdiction due to the presence of the arb clause, and that conditions precedent have not been met (said condition being the conduct of arbitration). And if you choose the arb strategy, there are other weapons you can use against them, such as a motion to dismiss, to compel arbitration, and to stay pending arbitration. As for your discovery against them, you can probably just file a certificate of service with the court, but check your state's rules of civil procedure, or you can ask the clerk.
  20. Here's a link to Ohio arbitration law: http://codes.ohio.gov/orc/2711 Note ORC 2711.02(, regarding a stay pending arbitration. You should print it out and take it to court for the pretrial conference. Along with the cardmember agreement with the arb clause. Be careful, depending on how professional (or perhaps unprofessional is the better word) the judge or magistrate is, they may try to get you to settle with the plaintiff, by being abusive and threatening towards you, making it sound like things will be much worse for you if you defend the case. You need to stand your ground and focus on your motion to dismiss due to the arb clause.
  21. Asset Acceptance is a JDB. It is likely that they don't have enough evidence to win. It sounds like they are trying to get you to prove their case for them by providing all the documents and info they requested. So, basically, don't. I would deny their admissions, except for the first one that is essentially regarding your name. And object to their burdensome requests that are an unwarranted invasion of your personal privacy (like employment and previous addresses). And these documents should already be in the possession of the plaintiff, if they actually had a case. If you are confused about what account this is, then deny knowledge. Make them prove their case. They are the business enterprise with supposedly good records, right? And, you should get a copy of your credit report to see how this, and the other account, are reported.
  22. For those in Ohio, here are Ohio statutes on arbitration. Especially note ORC 2711.02(, concerning stays pending arbitration. http://codes.ohio.gov/orc/2711
  23. You may not want to include counterclaims in your answer, as by doing so you would be invoking the jurisdiction of the court. In the arbitration strategy you want to argue the court has no jurisdiction due to the arb clause. You can save the counterclaims for arbitration.
  24. Just keep waiting and watching. And preparing. The case can't move forward until they serve you. Delay is always good for the debtor.
  25. So you received the summons and answered the complaint? And now the law firm is sending you something by certified mail? But the court's online records just show a certificate of service (which is just a statement that they have served something on you by mail). Sounds like it might be discovery, since whatever it was apparently was not filed with the court. Or it could be a motion for summary judgment. I would accept the certified letter and deal with whatever it is. I think their certificate of service will be enough for the court to assume that you did get it. And if it's something you need to respond to, like discovery or a motion, you should do so. Ignoring it is at your peril. And you need to file discovery against them as well, if it's not too late. Your DV request was probably not sufficient for discovery, if it was not captioned correctly and labeled as a discovery request.