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Linda7

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Everything posted by Linda7

  1. They could pay at the last minute. Why not wait until the 30 days are past and then email your case manager to see if they paid?
  2. It was opened and defaulted the same year? What arbitration choice are you seeing?
  3. What year was the alleged account opened and what year was the default?
  4. If the agreement states that either party may elect arbitration to resolve a dispute and the creditor once notified of the election of arbitration sues you in court, you have them on a nice violation - breach of contract, fdcpa and possible state violations which in some states actually treble the damages. That is why if your agreement says you are entitled to arbitration, it is good to elect it "early" before they sue so that you can use the strategy to rack up some violations against them.
  5. If you want arbitration, send Asset an election letter. I hope your agreement has JAMS. If it does, make sure to mention that you elect arbitration via JAMS. I'd like to know more about who the OC was and what year the alleged account was opened and what year was the default to determine what agreement might work best. Also the ballpark figure they are trying to collect. Here is a sample election letter - (Make sure to send CRRR) Your name Your address Their name Their address Date Re: Account #___________ Dear __________________, This letter is in response to your letter dated XXXX and received on XXXX, regarding the collection on the account number listed above. I dispute this alleged account and elect private contractual arbitration via JAMS to resolve the dispute. Regards, Your name typed *Depending on who the OC was - the above sample might change a tad.
  6. I would definitely "not" let this sit. Capital One took out arbitration in 2010. You did "not" use the card "after" they changed the agreement, therefore they cannot say that by "use" of the card you agreed to their amendment. When you were using the card it did have an arbitration provision and you defaulted "before" they took arbitration out. You need to make sure that JAMS understands this. Look through the statements they sent to you and use those to show that from their own paperwork they are showing a default in 2009 "before" they amended the agreement.
  7. Some changes I would make if it were me - The first part where it says you are asking for clarification on the arbitration venue - you "aren't" asking for that. Your arbitration venue of JAMS is not the issue. MOTION TO CLARIFY AND TO DISMISS COURT MEDIATION/ JUDICIAL ARBITRATION *I'm not sure about this title. Maybe the clerk could be of some assistance. If they won't help, I think I'd call it "Defendant's Motion to Clarify/Motion to Dismiss Court Mediation" NOW COMES Defendant, YYYYY and requests this Honorable Court to uphold the court order of Judge so and so which was granted on such and such a date. 1. That on or about October 2, 2013, Plaintiff filed its Complaint against Defendant, Defendant being served on November 6, 2013. 2. Defendant in this matter filed a response, at the same time moved the court to compel private contractual binding, arbitration pursuant to the terms and conditions of the American Express Premium Rewards Gold Card Agreement and the Federal Arbitration Act,(9 U.S.C. §1-16(2006) which governs the arbitration provision. 3. Defendant's Motion to compel binding contractual arbitration was "granted" by the Honorable Judge XXXXX on 20 November, 2013 with the stipulation that Defendant was to initiate within thirty (30) days. Defendant followed the court order and initiated on 17 December, 2013 (see Exhibit "B", attached) which falls within the thirty (30) days allowed by the court. 4. Defendant initiated pursuant to the terms of the governing agreement and has paid their arbitration fees. (Exhibit) 5. Plaintiff, in total disregard of Judge so and so's order filed a motion for mediation with this court instead of following Defendant into arbitration. CONCLUSION **Changed a little bit, read carefully An agreement with an arbitration provision has been shown which binds both the Plaintiff and the Defendant. The Defendant compelled the Court for private/contractual arbitration pursuant to the rules of the governing agreement. The Court granted the Defendant's motion to compel arbitration with the stipulation that the Defendant would initiate within thirty (30) days. Defendant initiated as ordered within the thirty (30) days and has paid their part of the initiation fees. Plaintiff has still not paid their part of the arbitration initiation fees and is delaying the arbitration as ordered by the Court and instead has filed a motion for court mediation. This case between the Plaintiff and the Defendant was bound over to private arbitration and is no longer within the jurisdiction of this Court. However, the Plaintiff continues to litigate in Court by filing a motion for mediation. WHEREFORE, for the foregoing reasons, the Defendant respectfully requests this Court to dismiss the Plaintiff's court mediation and to compel the Plaintiff to follow the Defendant into arbitration as previously ordered by this Court. Respectfully submitted *I really don't think the part below is part of this argument. You have already won the MTC arbitration. You just need the judge to realize that he isn't following his own order and you need to clarify that you did follow the order. American Express Premium Rewards Gold Card Agreement arbitration provision states: "Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision. Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration. This Arbitration provision is made pursuant to transactions involving interstate commerce and shall be governed by the FAA. Arbitration hearings you attend shall take place in the federal judicial district of your residence." 5. “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or any allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 1. 6. Defendant paid the JAMS consumer fee for arbitration to process. (see Exhibit "C", attached)
  8. I'm still having internet issues, so I can't type much as it will be going out. Read this - http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/21f7da820f98c859852572330056638e!OpenDocument&Highlight=0,* There should be some cites that you can use. Also note that it states about showing a valid agreement, etc., and you have met that standard.
  9. I would take that as their refusal and would also point that out to the judge. Still having internet problems. So, can't stay here long to read much or research. PM BV80 and ask if they know of any case law to cite. I know for a fact that there should be several.
  10. What year was the alleged account opened and what year was the default?
  11. I will try and look up the agreements, but I'll make this post before the internet goes out again. If it were me, I would have said "more" in regard to the agreements than you have listed above. In particular since you are up against a JDB, I would have shown from the agreement "who" falls under the arbitration provision. It is not only for the original creditor, but for their successors, etc. The judge needs to see that. And of course I would show from the agreement any part of "what" claims are covered, etc. The judge can then see (and highlight on the agreements that part where it will stand out) that the arbitration provision includes JDBuyers, any claim, etc. Also again - drive home the FAA and the Concepcion case and very important - cite your Kansas uniform arbitration rules from my post above (5-401 a& and of course 5-402 says that the court "will" stay the case upon you showing an agreement to arbitrate. The thing is, notice where it says their "refusal" to arbitrate? When you gave them notice that you wanted arbitration, did they refuse or what was said?
  12. At a quick glance, I don't even see a date (2013) on what you showed (this is good). I would use the 2013 agreement and see if it will fly. Being you are up against a JDB, they might not even know that there is a difference in the agreements. When you send things, be sure and send to "both" the JDB "and" their attorney (CRRR).
  13. My internet keeps going out, so excuse the times I'm not replying. Also in my post above, the *c is displaying as a copyright symbol. I've tried to correct it, but the editor will not let me. In your MTC did you use the language of the FAA and the AT&T vs Concepcion case? Also, I'm a little confused as it seems that you answered two claims by filing one MTC arbitration? Are you being sued by the same plaintiff on both cases?
  14. If it were me, I'd drive home the following points. The Kansas uniform arbitration act - 5-401.Validity of arbitration agreement. (a) A written agreement to submit any existing controversy to arbitration is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract. ( Except as provided in subsection ©, a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract. © The provisions of subsection (b shall not apply to: (1) Contracts of insurance, except for those contracts between insurance companies, including reinsurance contracts; (2) contracts between an employer and employees, or their respective representatives; or (3) any provision of a contract providing for arbitration of a claim in tort. 5-402.Proceedings to compel or stay arbitration. (a) On application of a party showing an agreement described in K.S.A. 5-401, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied. ( On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration. © If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (a) of this section, the application shall be made therein. Otherwise and subject to K.S.A. 5-418, the application may be made in any court of competent jurisdiction. (d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay. (e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown. The arbitration act can be found here - http://kslegislature.org/li/b2013_14/statute/005_000_0000_chapter/005_004_0000_article/ Then I would also use the AT&T vs Concepcion language from your MTC along with the FAA language. *Also - did you send both the JDB and their attorney an election notice and if so, what exactly did you say? What agreement did you file with your MTC and did you include an affidavit regarding the agreement?
  15. What is the ballpark amount they are trying to collect? If it were me I'd elect arbitration via JAMS "now" by sending the election notice to both Asset and their attorney. On the Dell agreement here - https://dl.dropboxusercontent.com/u/98854297/Dell%20Preferred%20WebBank%20no%20date%20%28JAMS%29.pdf it says that your cost would only be $125 with Asset bearing all the other costs. After the election notice was sent, I would then answer the summons and use the defense of the election of arbitration within your answer. I would also file a MTC arbitration with the court at the same time. Read in the arbitration forum this thread to understand the strategy and steps - http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/
  16. Be sure and look for state violations as the FDCPA does "not" apply to OC's. Often times a state consumer law will mimic the FDCPA and at times will treble the damages. State violations can apply to the OC. Also remember, the attorney can be held to the FDCPA - "Originally the FDCPA did not apply to attorneys. However, the FDCPA was amended in 1986 and the exclusion for attorneys was removed. Today an attorney is a Debt Collector subject to the FDCPA if the attorney regularly tries to obtain payments of consumer debts due to another, even if the method of collection is primarily through litigation." The above is quoted here - http://www.strasburger.com/calendar/articles/corp/SpringerM_FDCPA.pdf
  17. I've had a few friends in NY go through arbitration. They elected arbitration by sending a notice to the creditor "and" their attorney who had brought the suit. Then they filed an answer along with their MTC arbitration. Read through the thread - Strategy and Steps of Arbitration as there are samples in that thread.
  18. Paula, be sure to read this thread at debtorboards - http://www.debtorboards.com/index.php?topic=25640.0 There are several members there that have gone up against the same OC with JAMS and were successful. After you read through the thread, I'd post in the arbitration forum and let them know where you are with your case and get their input as well. You might also send some pms to those that you see have posted in that thread and get their input into how to negotiate with this particular OC. You have them right where you want them!
  19. Read post #11 of this thread and you will find the answers to your questions. If you still have questions, post back and let us know.
  20. You are absolutely correct on this! I only read the last post. If the suit had already been filed with the court then tolling would have started. OP, not knowing your court's rules - please repost and let us know. If the suit was filed the SOL could not have been reached at this time. This would mean that the SOL time clock stopped when the suit was filed. You would not have gained any time toward the SOL defense during this time. Let's pretend your SOL is 4 years and it was 3 1/2 years when the suit was filed. No matter that several months have passed, you're stuck at 3 1/2 years. It would not move forward again unless the suit was dismissed.
  21. xavi72 said that the SOL has been reached and "before" the lawsuit was filed. Great job!
  22. The JDB is not responsible for the listing from the original creditor. As for the JAMS fee, who was the original creditor and what year agreement did you use when you initiated JAMS?
  23. And another sample - Here's a template below - be careful though as the words quoted I believe are from a Chase agreement and the creditor was Main Street Acquisitions. Read it through and you'll get the gist of it. Your NameYour Address Their NameTheir Address Attorney's NameAttorney's address Re: Case/claim number Date Dear Main Street Acquisitions and the law firm of __________________________, This letter is in regard to the court case referenced above. Pursuant to the terms of the agreement, I elected arbitration via JAMS and filed a motion to compel arbitration through the court which was granted on _________________ which allows me 30 days to initiate the arbitration. The agreement states, "We will reimburse you for the initial filing fee if you paid it and you prevail", plus discusses other fees to be paid by the creditor along with the fact that both sides will be responsible for their own attorney fees, expenses, etc., regardless of which party prevails. *Put anything negative from your agreement in here as food for thought! In an effort to save both parties time and expense, I would be willing to drop my claims in exchange for the court case to be dismissed "with" prejudice, deletion of the negative tradelines, no selling of the debt and no 1099C. If I do not hear from you regarding a settlement, I will assume that we are moving forward with arbitration. If you are not interested in a settlement, I will need additional information to include on the JAMS forms. Please forward a phone number, fax number and email address for Main Street Acquisitions and for (name of the law firm). You may contact me via email at ____________________________. Sincerely, Your Name Typed
  24. Below is a "sample" letter that can be sent to the creditor and their attorney "after" your MTC arbitration has been granted. They know at that time that they have been ordered into arbitration and letters like below are often welcomed as it gives them the opportunity to get out of arbitration and "not" pay the high fees associated with it. The sample below is using Midland as the creditor and a Chase agreement. Be careful and adjust to your own case and agreement. Your Name/Address Midland's Name/Address Their attorney's Name/Address Re: Case/claim #_______________________ Date _________________ Dear Midland and the Lawfirm of ______________________, This letter is in regard to the court case referenced above. Pursuant to the terms of the agreement, I elected arbitration via JAMS and filed a motion to compel arbitration through the court which was granted on _________________ which allows me 30 days to initiate the arbitration. The agreement states, "We will reimburse you for the initial arbitration fee paid by you up to the amount of $500 upon receipt of proof of payment. Additionally, if there is a hearing we will pay any fees of the arbitrator and arbitration administrator for the first two days of that hearing." The agreement goes on to say that each party will bear their own expenses regardless of who prevails. In an effort to save both parties time and expense, I would be willing to drop my claims in exchange for the court case to be dismissed "with" prejudice, deletion of the negative tradelines, no selling of the debt and no 1099C. If you are interested in reaching a settlement before I initiate, contact me within 15 days. If I have not heard from you by that time, I will assume that we are moving forward with arbitration. If you are not interested in a settlement, I will need additional information to include on the JAMS forms. Please forward a phone number, fax number and email address for Midland Funding, LLC and for (name of the law firm). Also, please let me know what address I am to send my proof of payment so that I may be reimbursed as specified in the agreement. You may contact me via email at ____________________________. Sincerely,Your Name Typed *The above will allow Midland and the attorney's office the opportunity to walk away and save money while also giving you the opportunity to get what you want - the dismissal "with" prejudice, no selling of the debt, no 1099 and deletion of the tradelines.
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