nickysduck2

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Posts posted by nickysduck2


  1. Ok I have 2 different cases. This thead is for my husband's debt and they offered him payments in writing of $25. He wants to accept just need to know if its best to just mail a check or write them accepting their offer with my/his first check included. My other case is mine and I  have already been sued but am judgement proof, live in a non community property state so if they don't accept what I offer they get nothing.

    On my lawsuit I am honestly just thinking about offering $25 as well just so I can move on and if they deny it or fail to respond then Im just not going to worry. I'll show up on my court date and offer then same amount,close my bank account, file my state exemptions and hope for the best. The arb route is too stressful and Im not prepared enough to argue my case in court.While i do appreciate all the help and advice,people keep giving conflicting information and Im honestly even more confused about what to do concerning arb. I have panic attacks and made the mistake of not electing arb before I was sued and our judge is not arb friendly so im gonna be a wreck if i have to go before the judge and remember how to argue and what to say. 

    I plan to write them (PRA) a letter being honest and telling them what I can afford. I know for a fact that before court the judge makes the plaintiff and defendant meet in the hallway to try and come to a payment agreement  so why not make an offer before court so I can prove I tried to pay something?  Im gonna offer them the same amount in the hallway as I did in my letter and if he does'nt accept it I will tell the judge I offered to pay what I can afford both in writing and in person (if they don't accept my written offer and we still go to court) and he denied it. I think my chances are better for my payment offer to get accepted by the judge than arb is and I don't have remember case law examples and what to say.


  2. 3 minutes ago, Clydesmom said:

    Part of this is being able to defend yourself.  If you cannot defend yourself in court on the motion to compel or the trial I would be finding a way to hire the lawyer or settle for less.

    The fee for the lawyer is more than I can afford now that the summons has been served and he can't just make a phone call to talk them out of it. Im forced to handle this myself now. I honestly think the easiest thing to do is show up in court and in the hallway meeting offer them $25 per month and they either take it or leave it. Im judgement proof and on a very limited and tight income and this would be more feasable than stressing over it and ruining my health from the constant worry. 

    I am wondering if I should write them a letter offering this amount before the court date or just go to court and offer it in person. also should I tell them i am judgement proof? I have been to court before and know the judge frowns upon attorneys who deny any payment offer a defendant makes no matter how small the amount. If I can avoid court that would be great. 


  3. I was officially served he summons this morning for my case. I spoke to an attorney and was considering hiring him but financially I really can't afford to. The lawyer I spoke to said since I am self employed and paid in cash I was judgment proof so even if they do get a judgement, provided I close my checking account and file my state exemptions they can never collect on it. The judge in this case almost never allows MTC for arb. He is of the opinion that if you are already in a court it should just be handled there so my chances are slim of getting a mtc granted.

    I am still willing to try the arb route. The lawyer i spoke to told me he knows the attorney handling my case and he is a real a$$. He will argue against my motion to compell arb and Im not prepared to argue back. At this point what should I do. Write the plaintiff a letter electing arb and send him a copy of the credit card agreement with he arb clause highlighted and a copy of the motion I will take to curt on our hearing date? 

    If my motion is denied is there still an opportunity to negotiate payments before a judgement? 


  4. My husband owes a credit card bill that was sold to Portfolio Recovery. Instead of fighting this he wants to just accept their installment offer of $25 per month. I am going to write them and accept this offer. Before I write anything is there anything specific I would be wise to include? I am asking them to cease all phone calls but just want to make sure I cover all our bases. Does this letter need to be sent CMRR or is delivery confirmation ok? I can't get to the post office to do CMRR for a couple weeks because they close before  am able to get off.  


  5. 13 hours ago, Xerxes said:

    This agreement is dated 8/14, if that is of any use.  Although, it is based on the 72100BSP master agreement and not the 72000K master agreement.  All the agreements posted on the citibank website proper have been 72000K agreement variants.  Agreements posted on the homedepot website proper, or through the online application process, have been 721XX based agreements.  It is very difficult to know which agreement (if any) that citibank provided to  PRA for any particular account.

    You should know that PRA will likely ignore any arbitration demand that you file and serve upon them that doesn't have the force of a court order.  Getting such an order can be expensive, especially if you have to file a federal case to do so.  This is in addition to the small claims carve-out hurdle.

    Thanks but this all seems way too confusing. I thought if I elected arb and initiated based on the cc agreement  they had to obey the cc agreement ? We are really struggling financially,living week to week and can't afford to pay a lump sum settlement on this but im beginning to think it might just be best to accept the payment terms they just mailed and leave it at that.


  6. PRA does file small claims suits in  my local  court which is why Im thinking I need to elect arb to prevent that. I was offered a settlement in their last letter but can't afford the terms and have'nt responded. So bottom line I understand there are no guarantees here, but I am prepared to go ahead and initiate a claim against PRA to show im not bluffing. I am gambling that they won't pay the fees on only a $745 debt.


  7. 47 minutes ago, BV80 said:

    The relinquishment of the requirement to perform based upon a breach of contract is basic contract law.  

    Whether you're the plaintiff bringing a lawsuit or the defendant filing a counterclaim, both the plaintiff and the defendant would have to be a party to that contract in order for a breach of contract to be cause of action against the other party.   Even if you assert the OC breached the contract first, the JDB would still have to be a party to it for you to sue the JDB for breach of contract.

    Now, if you use first breach by the OC as a defense (not a counterclaim) in a debt collection lawsuit brought by a JDB, you would be admitting that the account is yours and would eliminate a possible defense that the JDB has not proven that you opened and used the account. 

    As you stated, you'd need some sort of proof that the OC breached the contract.  Merely making the claim with no record of a dispute and especially if you continued using the card and making payments would probably not succeed.

    Thanks for all the info. I am still going to take my chances on arb. I still have not received a 2015 of the citibank agreement despite a hundred google searches but filed a complaint with a consumer finance website and they called me and said Home Depot was mailing me one but who knows how long that will take. In the event that PRA does pay thousands of dollars in arb to collect such a small amount will a repayment plan be something we can negotiate in arb or is a judgement entered without negotiations should I lose?


  8. In reading all of this I am even more confused than ever. In this case I have received 2 letters from the jdb and there has been no mention of a lawsuit at this point. I was advised on debtorboards to send a leter to the jdb electing arb and then file a claim with JAMS (Im applying for a fee waiver) and include the application papers with my letter to the jdb. Since the debt is only $750 it is predicted that the jdb (PRA) won't pay the fees. 

    What I am concerned about is the fact that I have no violations against PRA.  Im going to initiate a claim because saying I am without actually doing it would be a bluff right? Im unsure what to put on my application as to why im filing. I can't just say "to keep this out of court" or can/should I?


  9. On 1/13/2017 at 9:59 PM, Harry Seaward said:

    Download the Jan 2016 archive. They are actually 2015 agreements in there and I'm pretty sure I saw some for Citibank when I looked at it earlier this week. 

    I downloaded the  Jan 2016 archives but could'nt open the file. Sue wish somebody had a 2015 citibank agreement they could email me. I called Citibank and because the account is closed and sold to a jbd they refused to send me one. I filed a complaint against them for denying me a copy. I really can't get started on anything until I get a 2015 copy of this cc agreement.


  10. Thanks so much for all your help. I requested a copy of the 2015 cc agreement from citibank. I think i understand what to do now. I will write them saying

    I dispute this debt in its entirety. You may communicate with me by mail only. All calls to any phone number associated with me or this account are inconvenient. That includes work numbers. I also revoke any prior express consent to call my cell phone for any reason. In the event of litigation, I intend to exercise my right to private contractual arbitration as specified in the applicable credit card agreement."

     

     

    Once I receive the correct cc agreement I will know if I can use JAMS or have to use AAA. Depending on what the contract says I will then go ahead an initiate a claim in one of those arb forums and send this initiation paperwork with my dv letter. Is this correct? I read the arb website and seem to meet the requirements for a fee waiver so will request that.Questions I have are..

    1. Since I am  applying for a fee waiver does that mean the fees fall to the creditor and if thats the case their refusal to pay prevents them from suing me in court? 

     2. I owe $745 on this debt. If I am the one initiating and I have no violations against them and PRA does by chance pay the fees how does it work? What are my arguments? 

    3. Would it be a good idea to include a copy of the citibank agreement with a notorized affidavit that it is the correct agreement to PRA in with my arb election letter and initiation paperwork?   

    4. Given the small amount of this debt what is the likelyhood they will pay the arb fees if AAA ends up being the forum I must use depending on my cc agreement? 


  11. Thanks. I have not requested dv yet. The first letter they mailed me was delivered to my neighbor by mistake back in October and im only just getting it so the 30 days to request dv is over. I am going to tell them in my dv letter that I noticed their info on my credit report and request it anyway.  There is an arbitration thread on debtorboards.com  that says ..

    " Somwhere in DV put, "If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause."

    You should also make a demand for a copy of the contract with the arbitration clause.

    Point #1) You are not required to file an arbitration by doing this.

    Point #2.)You have provided notice of your dispute resolution intentions, if they sue you in court, they have violated the FDCPA...by exercising a legal right that does not exist...ergo arbitration election waives other parties right to litigate.

    What options are left if OC/JDB cannot litigate claim?"

     

     

    This is what I was planning to do but someone else told me on debtorboards that if I elect and don't initiate its considered a bluff and This is what I can look forward to...


    "The defendant indicated that (he) wanted to exercise the arbitration clause in the contract. Thereafter, defendant did NOT exercise the arbitration clause in a timely fashion. Therefore, Plaintiff avers that this was nothing more than a delaying tactic designed to thwart the system. Defendant believes that once arbitration is "elected," court actions are permanently stayed. Defendant then refused to file a case, thinking that this chicanery precludes any action by Plaintiff to recover the debt. Plaintiff prays the court to see this ruse for what it is and deny (true motion) or objection.

     

    Now Im clueless on what to do. I have no violation against the creditor and another thread on deborboards says not to initiate a cliam unless you have violations. what is my best course of action here? PRA is the ca and the debt is only $745.


  12. I actually did but was told if I did'nt file a claim when I elected it would be considered a bluff and I could look forward to this..


    "The defendant indicated that (he) wanted to exercise the arbitration clause in the contract. Thereafter, defendant did NOT exercise the arbitration clause in a timely fashion. Therefore, Plaintiff avers that this was nothing more than a delaying tactic designed to thwart the system. Defendant believes that once arbitration is "elected," court actions are permanently stayed. Defendant then refused to file a case, thinking that this chicanery precludes any action by Plaintiff to recover the debt. Plaintiff prays the court to see this ruse for what it is and deny (the motion) or objection.

     

     

    I read the arbitration thread on this forum and it was suggested that we elect arb in our dv letter so thats what I was going to do until i was told on the debtorboard forum it was a bluff unless if initiated.   Now Im confused. I need a second opinion. The cc agreement states that if either party elects arb both parties waive their right to litigate in court. Its does'nt say I have to file a claim upon election as far as I can see.

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  13. I am not able to watch cases at the court house because I have to work. I have been to court 2 times though and kinda know what to expect. My court does not require an answer be filed but instead you just show up on your court date. I don't think I can file a MTC before the court date based on what the clerks keep saying either so this is why im so nervous.

    I can send the MTC to the plaintiff and then I have to just wait and see what happens. At least my court date is far enough off to give me time to prepare myself emotionally for this. 


  14. When sending a dv letter to a creditor on a debt with an arbitration clause, can I elect that all disputes be settled in arb using JAMS without having to file or initiate a claim? I am being sued on another debt because I never elected arb before PRA sued and I now have another new debt that PRA has just purchased so I want to elect before they sue. Someone told me in another forum that if I elected I had to initiate a claim or else its just a bluff. Im confused because I have only received one letter from them and have no violations to sue them on so why would I file a case in arb just to keep them from suing me? 

    I thought my election was just to make it known my preference should they decide to sue me?


  15. If it is past 30 days since they first sent collection letter can I still send them a dv letter electing arb with JAMS? I received a letter back in October and haven't heard anything since but I have not responded. I know there is an  arb agreement. Its for Citibank N.A. (Home Depot) but I can't find a 2015 copy anywhere. I even searched the cfpb website.


  16. Thank you all so much for the help. You have no idea how terrified I am of facing a judge. My brain freezes up and I can't talk or remember what to say when anxiety takes over.I sometimes have panic attacks. I was really hoping I could notify the plantiff in writing of my MTC arb and it might help get this thrown out before the court date because im certain i will screw this up if I have to go before the judge. Im preparing to close my bank account. Since im self employed im pretty much judgement proof given my state's exemptions but still on guard and scared.

    I called the court today to get the name and address of the attorney and she gave me an attorney who is in Norfolk Va named Nathan Horton and he's not even in my state. She had no address but an 800 phone number so I googled the name and number and the attorney works for Portfoilo.  Does'nt a local attorney have to handle this? 
     


  17. Ok I have another question. I am trying to find an appropriate sample arb letter to edit and send to Portfolio. I found this one which uses a capitol one arb clause below...

     

     

     

     

    NOTICE OF ARBITRATION ELECTION

     

     

    Pursuant to Capital One cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

    As per the agreement, "If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury."

    The agreement further states, "You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court."

     

    As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

     

     

    ___________________________(Your Name Typed)

     

     

     

    Since The cc agreement I am using is the 2015 Dell CIT agreement that someone provided is it ok for me to edit this sample letter with my own info and send it? I obviosuly am not a lawyer and have a hard time understanding legal talk but I read the Dell CIT agreement and it doesn't seem to say " If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury." or am I wrong? If so does anyone have another sample arb letter I can use?