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BV80

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Everything posted by BV80

  1. An open line of credit can be considered a revolving account just like a credit card. In regard to a different creditor, sometimes the issuer and the name of the credit card can be different. For instance, Citibank issues the Home Depot credit card. Who is named as the creditor in the complaint, and what company is shown on the statements? Have you checked with your court to see if a complaint was filed against you? If it was, the complaint is not fake. I believe Arkansas allows for an online records search.
  2. Business losses and legal expenses are tax deductible. That’s one reason JDBs don’t try any harder than they do. Occasionally, there will be an attorney trying to impress his boss or make a name for himself, but most JDB attorneys are lazy.
  3. The court didn’t mention when the SOL would begin otherwise. That’s why it’s best to contact a consumer attorney just to ask.
  4. The SOL in AZ for credit card debt is 6 years. The law was amended in 2011 to include credit card debt. Here is the relevant statute. § 12-548(A)(2) 12-548. Contract in writing for debt; six year limitation; choice of law A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following: 1. A contract in writing that is executed in this state. 2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a). B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies. If the credit card agreement contains an optional acceleration clause, the SOL begins on the first missed payment. Here is a ruling from the AZ Supeme Court. https://scholar.google.com/scholar_case?case=7675331254710062101&q=“12-548(A)”+AND+“mertola”&hl=en&as_sdt=4,3 However, to be sure, contact an AZ consumer attorney for confirmation.
  5. I doubt they were afraid of anything. If they really believed you had possible FDCPA violations to claim, they wouldn’t have dismissed with prejudice. The dismissal would have been without prejudice so that they would have a countersuit if you filed suit against them.
  6. If the agreement that was in effect when the account went into default has an arbitration provision, you can use arbitration within the limits of the provision. It doesn’t matter if there was a survivability clause in the original agreement as long as the agreement when the account went into default still has arbitration. The 3-1/2 year period has passed. While Capital One did not reinsert arbitration in its agreements, HSBC did. Capital One started issuing the Best Buy card around 2011, BUT it sold it to Citibank in 2013. Citibank agreements all have arbitration. Assuming that you used the account after 2013, then you agreed to Citibank’s terms which includes arbitration. The only problem would be if you were sued in small claims because Citibank excludes small claims court from arbitration https://www.citigroup.com/citi/news/2013/130218a.htm Why don’t you first find the agreement for year that the account went into default. You could try to locate a 2010 agreement, but depending on where you locate it, admissibility with the court could be a problem because you bear the burden of proving that any agreement you offer was actually created by the OC. You would have to prove HSBC actually created the agreement. An agreement located on the CFPB database presents no admissibility issues. Have you been sued? If so, who is the plaintiff and what evidence did it include?
  7. Could you give us more of an explanation? Agreements can be amended over the the years. Using a card means you agree to any amended agreement. That’s why the one that was in effect when the account went into default is needed.
  8. Why do you need 2010? The proper agreement would be the year for the one that was in effect when the account went into default.
  9. There’s no way of knowing if PRA will sue. Odds are that it will file a lawsuit, but we still can’t say for sure because we can’t see into the future. Arbitration works well most of the time in that it causes debt buyers to drop lawsuits. However, Portfolio did agree to arbitrate a claim at least once with a consumer on this site. I don’t know if that was just a fluke, or if it may be becoming common practice for that debt buyer. Settling before a possible lawsuit is, of course, the best way to avoid being sued. In my opinion, one’s decision is based upon his or her own personal issues. How much time do you have to research your state laws and court rulings? CA has some specific laws by which debt buyers must abide. Your state also has specific court rules that sometimes tend to derail debt buyer plaintiffs. From what I understand, most debt buyer lawsuits are filed in limited civil court. One of the rules in that court is CCP 98. Ask the “attorney-to-be” about CCP 98 and the CA Supreme Court ruling regarding that rule in Meza v. Portfolio Recovery Associates, LLC (2019). Does the attorney even know about that rule and court ruling? https://scholar.google.com/scholar_case?case=10912338867560789346&q=“procedure+98”&hl=en&as_sdt=4,5 It seems that the CCP 98 requirement that witnesses such as affiants (those who attest to facts in affidavits) be present at a location within 150-miles of the court to be available for personal service of a subpoena to appear in court causes problems for debt buyers and their employee witnesses. Do a search for CCP 98 on this site. The point is that you must be willing to put in the time and effort to launch a proper defense. If you just want the problem over and done with, the best way to accomplish that goal is to settle. How much PRA will settle for is also impossible to predict. 30% to 40% is probably a good guess.
  10. There’s no template. Study your rules on motion practice. I do know that you need to base your motion on the proper rule. In my state, it would be Rule 12(b). You’d also need support for your motion which would be evidence and case law (court precedent).
  11. The attorney validated before sending you the summons, so no violation there. Affidavits are usually notarized but can also be made under penalty of perjury. See what your state laws say about the issue. You could try countersuing for the 2nd CA issue, but it would take some research. You would need to study case law on agency relationship and vicarious liability. Also note that the most you could get for that violation is $1000. If you owed a low amount, $1000 might catch the eye of the plaintiff, but I’m not sure it will make a difference considering the balance owed.
  12. If the first CA did not contact you after receiving your DV, it did nothing wrong. CAs are allowed to cease collection efforts instead of validating. As @Clydesmompointed out, your DV and cease and desist did not transfer to the 2nd CA. The 2nd CA probably violated the FDCPA by not sending you a letter, but that’s a weak violation because it’s you said/they said. Also, since the Supreme Court ruling in Spokeo v. Robins, courts are becoming more strict on technical violations being actual injuries. As far as UHG is concerned, while the CAs are its agents, if it didn’t know about the cease and desist, it would a bona fide error defense. It cannot know that of which it has not been informed. When did you send a dispute/DV to the attorney? Did the attorney send you a dunning letter containing the 30-day notice and did you respond within 30 days demanding validation?
  13. Does the sentence include this? ”including our in- house attorneys’ costs, that we incur as a result of your default, as set forth in the Card Agreement”
  14. Yes, I would use that. Then you would wait to see if they respond to the MTD and what evidence they might include. Just because you request them doesn’t mean they are relevant. More than likely, you would need to file a Motion to Compel Discovery of those items. You would need to show why those items are relevant to your defense or the proof of their claims. Check your rules on compelling discovery.
  15. FL judgments are valid for 5 years and can be renewed for 5 more years. A lien on property is only valid for as long as the judgment is valid. https://dos.myflorida.com/sunbiz/forms/judgment-lien/ Judgment liens on personal property in Florida are filed with the Florida Department of State. Filing with the Department of State serves as public notice that the creditor (the person who won the judgment) has a monetary judgment placed against the debtor (the person who owes the money). Liens are valid for five years from the original filing date. Florida law allows judgment liens to be filed a second time to extend the lien’s validity five more years. (See s.55.201-55.209, F.S.)
  16. I don’t know about all states, but in some states, a debtor’s exam is done by an order of the court. Failure to appear is a violation of the order and can result in a bench warrant issued for the debtor’s arrest.
  17. The SOL is tolled (stops running) when a lawsuit is filed, so a continuance will have no effect on it. Study your court’s rules of civil procedure and evidence. Also, read your state’s court rulings on credit card debt and similar types of debt to determine what Midland must present to satisfy the court. In addition, check your state’s debt collection laws.
  18. I did read something that said judges could determine what is reasonable. Maybe they make a determination on a case by case basis.
  19. I found the statute about paying mediators a reasonable fee. Where in the statutes or rules is $1500 a specified fee? I couldn’t find it.
  20. The OP didn’t clarify if Citi continued to send statements after charge off. If they didn’t but added interest anyway, that is not the fault of the JDB. But the JDB still has to prove the amount demanded is valid. Also, if the agreement allows for interest to be added after charge off, the JDB can do it without sending periodic statements because TILA does not apply to JDBs. The OP either needs to try to arbitrate or engage in discovery to see what evidence the plaintiff has that supports its claim.
  21. Since you never sent Unifund a dispute, you don’t have a counterclaim. Are you being sued in TX Justice Court?
  22. Even when an account has been charged off, a creditor can add interest to the charge-off balance. Unifund was not required to validate the account unless you sent a validation request within receiving a collection letter containing the 30-day validation notice.
  23. I believe Barclays has an arbitration provision in the cardmember agreement. You need the agreement that was in effect the year the account went into default. You can find it in the archives on the CFPB credit card agreement database. https://www.consumerfinance.gov/credit-cards/agreements/ Read this thread on arbitration. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/
  24. If you request validation, keep it simple. Simply state that you dispute the account in question and demand validation. You could include the violation, but I don’t know if it would make a difference. It couldn’t hurt, but I just don’t know if it would help. You might want to start preparing for a possible lawsuit. Who is the original creditor?
  25. The most you can get for a violation of the FDCPA is $1000.00. That’s, more than likely, not going to deter Portfolio from pursuing a $16;000.00 debt.
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