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Everything posted by BV80

  1. That’s what I meant about court rulings regarding procedural vs. substantive.
  2. It is based either on 1. Whether or not your state has a borrowing statute that allows for another state’s shorter SOL or 2. If your courts have determined the SOL is procedural rather than substantive. If they have ruled it is procedural in nature, courts will usually determine the forum state’s SOL applies.
  3. We need more information. What did the arbitrator rule? Which rule allows for a trial de novo after a plaintiff dismisses its lawsuit? Which rule allows a self-represented litigant to recover court costs? What case law did you use to support your motion?
  4. It was included in a response to a DV. No court yet.
  5. Well, first you’d have to show that you did, in fact, dispute an error on the original billing. And, I believe the dispute has to be specific (incorrect charge, failure to credit a specific payment, etc.). It’s actually the Fair Credit Billing Act. Here is 15 USC 1666(a): (a)Written notice by obligor to creditor; time for and contents of notice; procedure upon receipt of notice by creditorIf a creditor, within sixty days after having transmitted to an obligor a statement of the obligor’s account in connection with an extension of consumer credit, receives at the address disclosed under section 1637(b)(10) of this title a written notice (other than notice on a payment stub or other payment medium supplied by the creditor if the creditor so stipulates with the disclosure required under section 1637(a)(7) of this title) from the obligor in which the obligor— (1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor, (2) indicates the obligor’s belief that the statement contains a billing error and the amount of such billing error, and (3) sets forth the reasons for the obligor’s belief (to the extent applicable) that the statement contains a billing error, In other words, it cannot be a generic dispute. It must specify an error. I’m not sure that disputing the balance is specific because it does not point out a specific error. For instance, an incorrect charge would be the reason for an incorrect balance, Simply disputing the balance would not “set forth the reasons for the obligor’s belief (to the extent applicable) that the statement contains a billing error”. Yes, the Fair Credit Reporting Act applies to OCs. However, if you stopped paying over 9 years ago, the account should no longer be reported on your credit report. The credit reporting period is 7.5 years from the date of first delinquency (DOFD). The DOFD is the date you you defaulted and never brought the account back to a current status. Creditors are required to charge off a credit card account with 180 days of default and failure to bring an account current. Also, the FCRA has a 4-year SOL for violations. Have you checked your credit report? If the bank is no longer reporting (which it should not be), I’m not sure how you could check for credit reporting errors. 445.252(n) (n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary. That might be something you could use if you have kept a record of calls. Repeated and continuous calls would just depend on what the court considers to be “repeated” AND “continuous”.
  6. Personally, I don’t see how the 9th Circuit came up with its decision. Here is the section of the TCPA at issue. Section 227(a)(1) defines an autodialer as: "equipment which has the capacity— "(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and "(B) to dial such numbers." The 9th Circuit said that “using a random or sequential number generator” only applied to “produce”. It did not apply to “store”. That’s ridiculous. “to store or produce telephone numbers to be called” is one phrase. “Store and produce” are not separated. Anyway, the SCOTUS pointed out that “using a random or sequential number generator” applies to both. The kicker is that “Because Facebook's notification system neither stores nor produces numbers ‘using a random or sequential number generator,’ it is not an autodialer.” The SCOTUS ruled that an ATDS has to store numbers to be called using a random sequential number generator or produce numbers to be called using a random sequential number generator. The burden of proving a system is an ATDS within that definition would fall on the party making the claim. It could be that some attorneys just don’t want to take the time to do the work to prove it. TILA applies to OCs, but it mostly addresses proper disclosures. There is the section on disputing billing errors, but it requires that a consumer dispute the error within 60 days of the occurrence of that error. The FCRA applies to OCs. It has a 4-year SOL. Check your state laws. Some states have laws mirror the FDCPA and apply to OCs. A creditor can sue when a debt is outside the SOL, but I don’t think most OCs do it. If it happened in your case, you simply raise the SOL as an affirmative defense. The OC would then bear the burden of proving it filed a timely claim. You don’t need an attorney for that.
  7. The “creditor” was required to send you a demand for payment. Zwicker is not the creditor. It is the attorney representing Discover, the creditor. You can deny having received a demand for payment from Discover, but if they claim they sent you one and possibly offer a copy as evidence, you have to go from there. Speaking to an attorney is a good idea.
  8. Your arbitration provision says “provided by any other exchange of which Merrill is a member.” JAMS and AAA are not “exchanges”. They are arbitration forums. You have to find out if Merrill is a member of other exchanges. Then you find out if those “exchanges” offer arbitration in their agreements and the identity of the arbitration forums. You need to find out what it means by “other exchange of which Merrill is a member”. This is complicated. Arbitration may simply not be a viable option. I really wish you could get an attorney’s opinion.
  9. Discover never sent you a demand for payment?
  10. You would have to find out the other exchanges, if any, of which Merrill is a member, and the arbitration forums offered by those exchanges. If JAMS or AAA is not offered, you’re out of luck with the Merrill agreement. You could check to see if you can find a BofA agreement that was in effect at the time it took over, but it would have to be an agreement that would apply to the acquired Merrill accounts. I really don’t know how to find such an agreement. But if you could locate one, check to see if there’s an arbitration provision and what is stated.
  11. That’s because interest had been added which they are allowed to do.
  12. Read the Fair Debt Collection Practices Act. That is the Act that references debt validation. According to the Act, original creditors are not debt collectors. Unless your state laws require original creditors to validate, then no. The bank does not have to do so. The debt collector should have sent you the 30-day notice. It was wrong to tell you that you must call BofA. The proof is only required in court. Banks are allowed to add interest to debt. When was it charged off by the bank?
  13. Most defendants don’t have attorneys, so they either do nothing and a judgment is awarded against them, or the defendants negotiate a settlement.
  14. Debt validation applies only to debt collectors. BofA is not a debt collector and was not required to send you anything at all. Even if the debt were being collected by a debt collector, a DV must be timely. It must be sent within 30-days of the initial communication made by a debt collector. That communication usually includes the 30-day validation notice which notifies a consumer of his right to demand validation. In addition, debt collectors are not required to send nearly what you requested in order to validate a debt. A credit card statement showing the amount demanded in a collection letter would suffice.
  15. It doesn’t appear that the letter contains the 30-day validation notice, so it was probably already provided and the 30-day window has passed. In that event, Midland could continue collection efforts without responding to a DV request.
  16. I saw some glaring mistakes in the memorandum. The attorney writes: It is clear there was an arbitration clause in the cardholder agreement. “Was” is the operative word. Then he writes: Bank of America may argue it rescinded its arbitration clause as part of the bailout. However, there are several responses. It appears the notice was purportedly sent out in 2010, but the complaint says Bank of America merged with MBNA in 2014. See complaint. Secondly, a material modification would need to be signed in some fashion like the original document. A "substantive change in the terms of a contract requires the consent of parties." Lanier v. Alenco, 459 F.2d 689, 693 (5th Cir. 1972); Isadore v. Washington Fire Marine Ins. Co., 75 So.2d 247, 249 (La.App.Orl. 1954)” FIA Card Services, N.A. v. Weaver, 62 So. 3d 709, 718 (La. 2011) He cites case law regarding the “consent of parties” to change of contract and that a signature is required. Where is his proof that there is no signature or that one was even was required under the terms of the merger? Then he writes this: Bank of America and MBNA have sought enforcement of arbitration clauses which courts have routinely enforced. In MBNA Am Bank v Hill, 436 F. 3d 104 – (2d Cir. 2006), The Court said we direct the district court “to remand to the bankruptcy court with directions to grant MBNA's motion to stay the proceeding in favor of arbitration.” In MBNA America Bank, N.A., v Straub Civil Court of the City of New York, New York County. May 25, 2006. Notice the dates. Yes, the courts enforced the arbitration provision in 2006. Yet, the attorney earlier admitted the arbitration provision was removed in 2010. At the time the cited courts enforced the provision, it still existed in the agreements. He also stated: Defendant has Satisfied All Requisite Elements in Order for this Court to Grant Their Motion to Compel Arbitration. Section 7503(a) of the CPLR governs the procedure of the instant Motion. It states, in relevant part: A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. Here is what a NY appeals court stated: "Generally, under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration: (1) whether the parties made a valid agreement to arbitrate; (2) if so, whether the agreement has been complied with; and (3) whether the claim sought to be arbitrated would be time-barred if it were asserted in State court.” Morales v American Apparel, Inc., 113 AD3d 659, 660 (2014). Both NY law and court rulings show that there must be a valid agreement to arbitrate. The party who wants to arbitrate bears the burden of proving the existence of a valid agreement to arbitrate. He did not state nor show how there was a valid agreement to arbitrate between B of A and his client. When did the defendant open the account? No mention is made as to why an arbitration provision that was removed in 2010 entitles the defendant to arbitration.
  17. Oh, I thought you had mentioned it before. Sorry about that.
  18. Read “Affidavit or Affirmation in Support of Motion” filed on 09/08/2021.
  19. I would just explain the situation and see what they advise. You might ask if they think you would go ahead and answer the complaint or wait to be served. Ask about their fees to represent you. You’ll know more about what to ask after talking with them a bit.
  20. The arbitration forums could refuse, but it seems they will go ahead and administer a case when there is a court order. I believe @BackFromTheDebthas experienced that.
  21. You need to see how your courts have ruled. If I’m not mistaken, I think I remember that there were some CA courts that ruled arbitration doesn’t toll the SOL, but you need to make sure.
  22. Every time a poster has reported back on the issue, they’ve said they got a letter or email from the arbitration forum that the case was closed due to nonpayment. Here is JAMS rule 6(c). (c) If, at any time, any Party has failed to pay fees or expenses in full, JAMS may order the suspension or termination of the proceedings. JAMS may so inform the Parties in order that one of them may advance the required payment. If one Party advances the payment owed by a non-paying Party, the Arbitration shall proceed, and the Arbitrator may allocate the non-paying Party's share of such costs, in accordance with Rules 19(e) and 26(c). An administrative suspension shall toll any other time limits contained in these Rules or the Parties' Agreement. There is no template for the request for sanctions. However, just cite the rule. Here is ORCP 54B(1): B Involuntary dismissal. B(1) Failure to comply with rule or order. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for a judgment of dismissal of an action or of any claim against that defendant.
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