lheart

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lheart last won the day on June 21 2015

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About lheart

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  1. This is the power of arbitration and good negotiation. When faced with the actual cost of a contested arbitration, even in AAA, the cost/benefit analysis gets so skewed that even a debt over $10K looks better to their bottom line to pay you to just go away. That is why you must fight an insist they both they and the forum follow all of the consumer protocols. Good job amyw. It also doesn't hurt that in Ohio, they cannot ask for ANY attorneys fees. They are likely offering, "Go, away and don't make us arbitrate!" money. Accept the 1099 for the money they pay you. No way around that. If you are insolvent for 2016 based on the IRS 982 form. If so, you will owe no taxes on the forgiven debt. Don't tell the other side though, use it as a negotiation pawn. "If I have to accept a 1099 for forgiven debt, Ill need a little more settlement cash to offset it" https://www.irs.gov/uac/Form-982,-Reduction-of-Tax-Attributes-Due-to-Discharge-of-Indebtedness-(and-Section-1082-Basis-Adjustment)
  2. Thanks for the updated JAMS link. A quick look and sort shows that NO consumer paid either JAMS fees or attorney's fees for credit card cases even when the case went to hearing and award. (There were a couple of automobile claims where the consumer got stuck with attorney's fees.) There is a lot of good info there if you take the time to parse it.
  3. Notice they are asking for attorney fees for responding to "your friends" motion to dismiss. If the judge finds the motion frivolous, you may have just increased "your friends" judgement. There is a reason the court does not allow non lawyers to prepare filings for others. I would file a simple denial with arbitration as an affirmative defense, and get this out of court. For a $1k claim, the attorneys fees could be half of that for that MTD.
  4. Do not get too concerned or tripped up on the Nature of Claim. Arbitration is not as stringent as court. The previous suggestion was fine. The confusion comes from the fact, the plaintiff in the case SHOULD be the one to initiate the arbitration. When dealing with reluctant collectors it is recommended that the consumer initiate even without counterclaims. So the effect is you feel as though you are filing a claim against yourself. This is still fine because the Demand for Arbitration, does not bind or restrict you to any particular cause, claim or defense. It is simply a way to make sure the local court does not attempt the regain jurisdiction by waiver or that the collector does not choose another forum that you don't prefer, like AAA over JAMS. My first arbitration filing Nature of Claim was: Dispute over Debt Case filed in XXXXX County Court Case # #######. I and the OC were able to reach an amiable agreement before they ever paid any fees.
  5. Those of us who are honest will admit that we all started with silly questions and not enough time to have them answered before we needed to do something. I went to my court to pull previous cases to see how other people answered credit card lawsuits. These were still hard copy records. The clerk told me if I was not an attorney, I was not allowed to see them. I told her they are public record and I had every right to them and insisted that she get her supervisor. She came back upset and wanted to know why I needed so many files, but she did pull them. Clerks are like every other profession, some do it to the best of their ability and learn everything they can, and others just show up for a paycheck. But by law they are not allowed to offer legal advise, including what you can or should file.
  6. File the claim with JAMS. The nature of the dispute as stated by firsthardcheese can be: "Consumer Credit Dispute". Do not send in the initial payment. I think Discover has a provision that if you ask, they will consider paying. They likely will not, but give them a chance to consider and that will buy you time. Clerks are not legally trained. They only know what they see each day. Most attorneys would not file the way you did, so they do not know that it is ok. You have to insist that they do what you ask.
  7. Search the board for generic answers for lawsuits. Include the affirmative defense of: Arbitration - there is an binding arbitration agreement to covers this claim. You can then proceed to file a Demand with JAMS, which will include instructions to send a copy to the plaintiff. The address for the copy to the plaintiff will be listed in the Arbitration Agreement. Also send a copy to the attorney representing them in court. The FAA is the governing law you want to use, not GA. GA is non-binding for consumer debt of less than $25,000 according to the link from debtzapper. Once you receive the CMRRR "green card", (this is changing, there may not be a green card), file the MTC with the court.
  8. Late to the party. File the demand with JAMS. The OC's have started filing with AAA if the consumer compels arbitration, but has not initiated it yet. Include that in your Motion to Compel letting Discover and the court know that JAMS is the venue of choice.
  9. You will be admitting having a contract with CIT, you are not admitting the debt. You are also not admitting you owe the plaintiff since you never had a relationship with them, and they have not proved standing. But since they are alleging standing, you are enforcing a portion of the agreement. Court of Law not Court of Logic. Do not file a motion to stay discovery. There is no need to. Just respond with the blanket objection based on pending arbitration. There is already a motion to stay before the court and a hearing scheduled, filing another one will not accomplish anything. If your agreement was posted on one of these websites, you will likely be asked about it. I have been part of a larger Federal lawsuit that my business was involved in. The amount of information I was requested to provide during a deposition was staggering. I wanted to object to a lot of it, but my attorney told me they would likely get it by subpoena if I did not provide it, including account information and passwords. If you use the agreement from a website, you may open the door for them to discover information concerning the site used and how you access it. All that privacy talk goes out the window when you are in a court of law that is attempting to resolve a conflict if the information in related to a defense. While a lot of information they find may not be admissible in the actual case, it may be discoverable because it may lead to admissible evidence. It would be better if you can find the same contract from a different source and reference that during the hearing. As far as appearing telephonically, that gives you an advantage. The judge can see you and your reactions, the tele-lawyer cannot. They will have NO ability to introduce any additional documents at the hearing since they are not there. And if you orally motion for dismissal because of failure to state a claim, they will be at an even greater disadvantage. They will not be able to read the judge and his/her reaction to them. They usually come of as ruder also because the nature of speaker phone means the end up interrupting at times. Lastly the case means so little to them that they will not even bother showing up, so they likely will not fight this very long.
  10. Object to all of them on the basis the arbitration forum will decide the scope of discovery. This is sent back to the plaintiff, not the court. Do not send any discovery of your own. You may waive arbitration.
  11. The follow up will be: If you do not recognize the account or the creditor, how can you attest that this is an accurate copy of the agreement? The challenge ProSe's face is it is a "Court of Law" not a "Court of Common Sense" of a "Court of Logic." For the agreement to be binding there needs to be an offer and acceptance. If you are saying you do not recognize the account, then you are saying there was no acceptance on your part. Which is fine if you want to argue Lack of Standing. At the hearing they will ask you where you downloaded the copy from and you need to be prepared to answer. If it is from this or another site where we discuss debt collections, be prepared for them to want your username to see what you have posted and responded to. It is the way the game is played. Depending on the wording of your affidavit, you may already be boxed in. But that is OK. If they are successful at striking the agreement you presented to the court, I would be ready to orally motion the court to dismiss the case for failure to state a claim since there is no valid contract before the court that was breached. Depending on your states laws, you may have waived that option for dismissal and you may have to do a MSJ. The MSJ would be the same basis. Since there is no contract, there is no breach. If the attorney for the plaintiff attempts to introduce a contract at the hearing that is different from your, I would object for lack of foundation. The same argument they are using against you, throw it back at them. In order for them to introduce the agreement, they will need a custodian of records to lay the foundation and overcome the Business Record Hearsay Exception. If this is a JDB you can still object if it is one of their employees, because they were not maintained by the current company, but by the OC. It may seem complicated, but it is simple. If your contract stands FAA trumps and private arbitration is the only route. If your contract is struck, push for dismissal for failure to state a claim. If they successfully introduce one, it will likely have arbitration, and back to option one.
  12. Why is everyone taking this so personal? I questioned your grasp of hearsay in the context of laying foundation of a valid contract. Why is that a personal attack? I explained why I thought you were wrong with Federal rules and case law cites. Your response was to repeat what you said before. I chose to end the discord because I could not persuade you and I thought it was becoming a distraction. All I care about is that the OP has the best position to defeat this non-sense. Based on his questions he/he does not have the legal depth or experience that you and I have. I thought it was a distraction to send him/her off chasing after a hearsay rule that does not apply to a consumer. If you do not believe me, please consult a bar attorney to explain it. That being said, This is not personal. You have been around long enough that I am sure that you have helped countless people that are grateful for your knowledge and insight. I tend to stick to the Arbitration threads because that is what I know and am good at. I would love to make amends by buying you a beer or a meal if you don't drink. PM me and I will be glad to PayPal funds to cover my offer. It is 100% legit and is not because anyone has made me or is threatening to ban me. To everyone else reading this thread: I apologize for the distraction.
  13. Is your lawsuit based on the purchase of a Dell computer? The case you listed will be helpful. And since it is a court record, it is self-authenticating. But I would still focus on how you will answer questions about your submitted agreement. Where did you get it? Why do you believe it is the agreement that covers the issue of the current lawsuit? While them using a similar agreement in another lawsuit is supporting evidence, they are going to attack your foundation of the current agreement before this court.
  14. @bassplayr Private contractual arbitration is expensive for them. That is why they are fighting this. If the MTC arbitration is granted, it will cost them in the neighborhood of $2,500 - $5,000 to proceed to arbitration depending on the forum. The forum rules state that the consumers only cost is $250 or less. Reading the other threads on the current state of consumer arbitration with JAMS and AAA will explain this more than I can in this thread. But I agree and like your focus on the basics of what the plaintiff is arguing. They are saying there is currently no valid contract before the court. If that is the case, then their claim of Breach of Contract is defective in the filing.