BV80

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Everything posted by BV80

  1. If there is no court order instructing the plaintiff to file, you should probably do it. Otherwise, it won’t be filed, and the plaintiff will try to argue that you are not serious about the process. Let’s see what @BackFromTheDebtsuggests.
  2. You could send a DV, but if they have not contacted you, the 30-day validation period hasn’t been triggered. Also, you could be waking a sleeping bear. If they have already sent a letter, your DV would be outside the 30-day window, and they would be free to continue collection efforts without validating.
  3. What would be your dispute for the 2nd account?
  4. Electing arbitration in advance of a lawsuit is not a sure fire way to prevent a lawsuit from being filed.
  5. @ticklemore Have you read the CA Fair Debt Buying Practices? https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.6C.5.&part=4.&chapter=&article=
  6. Just because the laws of VA apply does not mean that statement is a forum selection clause requiring a lawsuit to be brought in that state. A “forum selection” clause would specifically require that lawsuits or actions to resolve disputes must be brought in a particular state. Here is an explanation from a TX attorney. https://www.law.com/texaslawyer/2018/04/05/forum-and-venue-a-distinction-with-a-difference-in-texas/?slreturn=20210319135018
  7. 71.003 is for personal injury. It is not for contracts. Here is the first sentence of that subsection. Sec. 71.003. APPLICATION; CERTAIN CONDUCT EXCEPTED. (a) This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived or had been born alive. 71.051 is forum non conveniens. That means the lawsuit was filed in a court that is not convenient for the defendant, and another court would be proper. Here is the first sentence of that subsection. If a court of this state, on written motion of a party
  8. What is the TX code for the borrowing statute? Was that payment made after you had already defaulted?
  9. I disagree that he would have an FDCPA claim in the above instance. Parties are allowed to refuse to arbitrate. Courts have ruled that the FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. Federal law, the FAA, governs arbitration in this case. It states that the proper avenue for a refusal to arbitrate is a MTC. In the OP’s case, a non-suit before the MTC is ruled upon would mean there is no order to arbitrate. Again, parties are allowed to refuse to arbitrate. In the event there is a court order to arbitrate, dismissing and then refi
  10. An interlocutory appeal means an immediate appeal. An order from the court that is considered a final order is immediately appealable. An order denying a MTC arbitration is a final order.
  11. I’m not sure you can prevent that. If they were to non-suit, hold on to your paperwork in case they sued again, but I doubt they would file another lawsuit.
  12. @shadow99 @Brotherskeeper @BackFromTheDebt I’m thinking that, on the day of court, if the attorney speaks with the OP to try to make the bogus arbitration cost again, the OP should point out that if the MTC is denied, he will immediately request a stay to file an interlocutory appeal. If the attorney claims he can’t so that, the OP would have § 16 of the FAA ready to show him. (a)An appeal may be taken from— (1)an order— (A) refusing a stay of any action under section 3 of this title, (B)denying a petition under section 4 of this title to order arbitration to proceed,
  13. Velocity has stepped into the shoes of the creditor which was also the drafter. They agreed to the terms of the cardmember agreement when they bought the account. If they want to insert Utah case law, take a look at this from the UT Supreme Court. “It is well recognized that "[t]he assignee [stands] in the shoes of the assignor.” Sunridge Dev. Corp. v. RB & G Eng'g, Inc., 2010 UT 6, ¶¶ 13, 15, 230 P.3d 1000)(citing John E. Murray, Jr., Corbin on Contracts § 51.1 (rev. ed. 2007)). “Therefore, ‘[t]he assignee is subject to any defenses that would have been good against the [assignor
  14. Read the case law cited in Knight Adjustment Bureau, particularly Sosa v. Paolos and Cantamar, LLC v. Champagne.
  15. He would UT code which you cited in your post in Lester v. PRA.and VA case law from the VA Supreme Court. It was “pulled” from a VA Court of Appeals case citing Union. Considering the referenced case law is from VA, it is well established in VA. That’s why it was cited “See Union Recovery...” and provided the exact page where the “well establshed” ruling was made. I didn’t claim they did make that argument. It was simply to make sure the judge is well-informed as to responsibilities of assignees of contracts. And it does help the argument that an assignee which ste
  16. The OP would have BOTH VA and UT law to support his claim. The judge would have no excuse to deny the MTC based upon an assignee vs. original creditor.
  17. @shadow99 It is well settled that an assignee of a contract obtains his rights from the assignor and, thus, "stands in the shoes" of the assignor and acquires the same rights and liabilities as if he had been an original party to the contract. See Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 423, 477 S.E.2d 521, 523 (1996).
  18. This is what was changed in 2019. TFC 392.007(2)(d) (d) If an action to collect a consumer debt is barred under Subsection (c), the cause of action is not revived by a payment of the consumer debt, an oral or written reaffirmation of the consumer debt, or any other activity on the consumer debt. Here is subsection (c). (c) A debt buyer may not, directly or indirectly, commence an action against or initiate arbitration with a consumer to collect a consumer debt after the expiration of the applicable limitations period provided by Section 16.004, Civil Practice and Remedies C
  19. You have to be careful requesting discovery. In some states, engaging in litigation can waive your right to request arbitration.
  20. I agree with @Clydesmom. In addition, counsel’s medical leave ended a year ago. No excuse. Also, limitations on travel had no effect on filings by mail with the court. A motion to extend could have been filed by mail or electronically, if allowed.
  21. It doesn’t matter if the claims are yours or theirs. Closely study the language in the arbitration provision. What does it say about disputes and types of disputes. Does it say that a dispute about your account cannot be arbitrated? How did the CA ignore your request for validation? For instance, did you send a timely request within 30 days of receiving the 30 day notice? If so, did the CA continue collection efforts after receiving a timely request? How long ago did this occur? See if your courts have made rulings regarding assignees stepping into the shoes of the