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BV80 last won the day on August 16

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  1. I understand the rule. The highlighted parts do not indicate that a 41(B) dismissal can be done in lieu of an answer. Where is the case law?
  2. Three is also a MTD for lack of subject matter jurisdiction under 12(B). So, again, why would there be 2 rules for the same motion, and where is your case law?
  3. Rule 12(b)(6) says that a motion to dismiss can be filed in lieu of an answer for certain reasons. Why would there be 2 rules for the same thing? You cannot include in a rule something that is not there. Where is the case law that supports a 41(B) motion in lieu of an answer?
  4. Which part of the rule says that a 41(B) motion can be filed in lieu of an answer?
  5. @Robby8900 What would be the purpose and advantage of a 41(B) motion to dismiss over a motion to compel arbitration?
  6. “OC” means original creditor. I don’t know that M&J is representing the OC. They could be representing a debt buyer. My point is that law firms do not usually purchase debts. They merely represent clients. If you hired an attorney to sue someone, the attorney would represent you in court. You would still be the plaintiff who is suing, but the attorney would do all the work and show up in court to represent you.
  7. Are you being sued in small claims?
  8. Please cite the case law in support of your claim. The 7th Circuit Court of Appeals disagrees with you. ”The FDCPA is not a mechanism for matters governed elsewhere by state and federal law. Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 875 (7th Cir. 2015). A contrary ruling would require us to declare that adherence to an arbitration provision in a contract, even in the face of a state court order to the contrary, is essential to fair debt collection. This we will not do. Id. That court has ruled that adherence to an arbitration provision has nothing to do with FAIR debt collection. Simply because the other party would rather litigate in court rather than arbitrate does not make the action unfair. In addition, as stated by the court, the arbitration provision is governed by the “federal law”. The FAA anticipated a party’s refusal to arbitrate and provides a remedy for a refusal. 9 U.S.C. §4 A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. In other words, you file a MTC when the other party refuses to arbitrate. Then, there’s the issue of a valid agreement to arbitrate (which is also addressed in the Federal Arbitration Act). Courts get to determine that issue. That’s part of the reason for a MTC. The OP is in New Jersey. The following is from the N.J. Supreme Court in Goffe v. Foulke Management Corp. (2019) “To make that so, the FAA provides remedies. First, section three provides that a party may request a stay of an in-court action of ‘any issue referable to arbitration under an agreement in writing for such arbitration.’ 9 U.S.C. § 3. And, section four provides a federal remedy for a party ‘aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration,’ and directs the federal court to order arbitration once it is satisfied that an agreement for arbitration has been made and has not been honored. 9 U.S.C. § 4. ”New Jersey case law acknowledges the preeminence of the national policy established by Congress through the FAA as well as the Supreme Court's holdings interpreting and implementing that policy.”
  9. Please read the following thread on arbitration.
  10. Just a note: Machol & Johannes is a debt collection law firm. Law firms do not usually purchase defaulted accounts. They merely represent original creditors and/or debt buyers. Chances are that the law firm is representing either the OC or a debt buyer that bought the account.
  11. You can speak to a debt collector, but do not admit responsibility for the debt or agree to make payments. There may be some states where a oral acknowledgement of a debt or oral agreements to pay could reset the SOL.
  12. Yes, the DOFD is the date you were first late (in default) with the OC. Are you referring to resetting the SOL for collection or for credit reporting?
  13. You need to get your written reports. Go to You are entitled to a free credit report every year from each of the 3 major CRAs. Derogatory items fall off your CR 7 to 7.5 years after the DOFD (date of first delinquency).
  14. I’m glad it worked out for you. Just a note, though. Utah is the only state in which the statute of frauds can be used under certain circumstances for credit card debt. It does not apply in any other state. That’s a fact not pointed out in Mr. Gray’s article. Perhaps it’s because he doesn’t know it. It’s only one of many flaws in his article.
  15. Please define the above. How do you know they will ignore it? Was your letter sent within 30 days after receiving that initial notice?i