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Everything posted by lheart

  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.
  15. 3. What is the source of your agreement? I honestly do not exactly recall. It is a pdf in my computer files. I think I may have actually gotten it off of the CIC forum. This is the only thing you need to clear up before the hearing. You will need to know the source of the contract you used and why you believe it is a true copy of the contract the applies to your account. This will need to be consistent with the affidavit you have already submitted. My personal opinion only follows: I would not bring the multiple copies to the hearing. If the plaintiff wants to question the validity of the contract, let them bring one and authenticate it. If you bring multiple agreements, they will turn this into your picking from a pile of agreements and submitting one to the court that you like best. This could backfire. Even if you present them, the attorney is in no position to authenticate any of them. He is not a qualified witness. They sued you on breach of contract and did not present the contract that you breached. I would argue if this is not the correct contract and they do not present and authenticate one, that the case should be dismissed for lack of standing to sue on breach of a nonexistent contract. You lose that position by giving them what they are not presenting themselves.
  16. @CCRP626 It was cited because there is very little case law for the current situation where the plaintiff is claiming that the contract presented is not applicable to the case. The OP has authenticated the contract by testimony (affidavit). While it is not signed, by the Rules of Evidence it is now evidence of the contract before the court. The only way the plaintiff can contest the validity of the contract at this point is to purjure the testimony of the OP. They will need to present a witness that can authenticate an agreement that contradicts the OP's authenticated document that has more weight than his/her affidavit. My point is there is no Hearsay argument to be made because it is direct testimony introducing evidence. @debtzapper I did not make it personal. I presented why this is not a Hearsay issue. BV80 ignored the issues raised in my post and went right back to the Hearsay issue. I do not know BV80 and have no reason to make this personal. If he/she were to provide case law or rules that establish why this is Hearsay, I would admit that I was wrong publicly. I always do. I am only attempting to narrow the issue for the OP and present established contract law and rules of evidence as to why Hearsay is a non-issue and if presented can be easily defeated. @ALL I have nothing to sale, or nothing to gain by posting, spending time and proving any help I can. My only motivation is to provide the help that I received when I was in the same situation. That is why I posted the series of questions to the OP. In my case, once JAMS accepted the claim, the OC I was going up against tried to claim that Arbitration was removed from the contract in 2010, so therefore I did not have the option to arbitrate the claim. Well their lawyer filed a 2006 agreement in the local court when they filed the lawsuit. So I argued that if they presented an agreement to the court that was not the correct agreement, then I would file an FDCPA claim against the lawyers and a state consumers claim against them for unfair business practices. The point is, they play these games all the time hoping that we as ProSe's will be distracted by their tactics and not stick to the basic principals of contract law and rules of evidence. So the more time we spend in court fighting for something that is already a given, the more likely we are to slip up and loose. And the court will not always inform us or protect us from such mistakes. So if the OP says he/she is no longer interested in my perspective, I will remain silent on this issue, and no longer post on this thread.
  17. @BV80 Sorry, the Exemption was a typo. The discussion is futile because you lack the understanding of the difference between direct testimony and hearsay. A direct party to a contract can introduce it into the record as evidence and the foundation is established. It is not hearsay, no exception is needed. Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F. 3d 527 - Court of Appeals, 5th Circuit 1994 See line 540 I can provide more case law to support this, but this is basic contract law. (also see the reference from my previous post) Let me elaborate and see if I can break this down for the benefit of everyone reading this: We will use the Federal Rules of Evidence as a basis since most states mirror them. http://federalevidence.com/downloads/rules.of.evidence.pdf Article IX covers Authentication and Identification. Rule 901 covers Authenticating or Identifying Evidence. When you have the Testimony of a Witness with Knowledge, the evidence is authenticated and the foundation is laid. If you do not have a Witness with Knowledge, then you move into Article VIII - Hearsay. Now you need to authenticate evidence without a Witness with Knowledge, or Hearsay. As mentioned there are Exclusion from Hearsay defined in Article VIII. This is what is commonly known as the Business Records Exclusion from Hearsay. It is called that because it is a protection for businesses to authenticate records. ( B ) Is why it would not apply to the consumer. Those definitions do not apply to non business, organization, occupation or callings. And if they did, then the individual would have to substantiate their practice of maintaining records, how they are filed, stored and retrieved. But since they are a party to the contract and a direct witness to it, there is no Hearsay. Go back to article VIII. It defines Hearsay: By affidavit, the OP has testified so the first leg of the Hearsay definition fails. The definition has an "and" so both 1 and 2 need to be present for the Hearsay definition. Since 1 fails, 2 need not be examined. Let's talk about the contract. The contract fails the Hearsay test also. It is evidence. When a party to the contract authenticates it by 901( b ) it then fails 801(c ). This is not true for a business, unless you bring in a witness from the business that was party to the signing of a contract, then there is no need for a 803(6) exception because you have a 901( B ) witness. Which is why I said, for the OP this is not a Hearsay issue. Even the opposition listed never mentioned Hearsay. This is because they are grasping at straws hoping to intimidate the OP to admit the debt and the amount during what should be a MTC hearing. As long as the OP objects to issues of Discovery and sticks to the issue of a binging arbitration agreement, he/she should be fine. If they plaintiff talks of Hearsay, then the OP can object on the basis it is direct testimony from a witness with knowledge that fails the first hearsay test.
  18. @BV80 While it is off topic, I think the discussion is good for the board. That being said, I still disagree with you. You are basing your position by attempting to reverse the roles of consumer and collector (JDB or OC). The reason the business has to use the "Business Record Exemption" to hearsay, is that a lot of times the person who entered the contract on behave of the business may not be available to testify for the business. So they only need to show it was maintained as part of the normal business. A consumer does not have the burden of Business Record Exemption. They are offering first hand testimony, "I entered this contract with ABC corp." It is direct testimony from a witness to the act, so there is no hearsay involved. It is direct testimony introducing evidence. No hearsay is evolved. @prove-it +1 Arbitration is about increasing the cost of litigation to pursue the consumer. Nothing more and noting less. The idea is not to actually have an arbitration hearing. If it gets that far, you will likely lose the case. If you have a bad case in court, you have a bad case in arbitration. If you have a good case in court and good defense evidence, STAY IN COURT. The court has constraints on procedures and evidence that is predictable and can be appealed. Arbitration is a lot looser with rules and the arbitrator has a lot of latitude. Once the MTC is granted and before the arbitration fees are paid is the sweet spot of arbitration and the time to negotiate your best resolution.
  19. Let's see if we can narrow the issues down. Answering the following may help: 1. What is the suit based on? Account Stated or Breach of Contract? 2. Did they include a copy of the agreement with the filing? 3. What is the source of your agreement? 4. Is there a date on the agreement? If so, does it correspond with the last agreement that was in place while the account was active? 5. Who is the OC for the account?
  20. @BV80 What you are missing in your analysis. When we use this against JDB, we are saying that they need to produce someone that has direct knowledge of the agreement or account; i.e. a qualified witness. Since the OP is a direct party to the contract, his/her testimony via affidavit is as a qualified witness. They are the very person that agreed to enter into the contract, so the affidavit is sufficient to lay the foundation. Just as if the JDB got a records keeper from the OC that would lay the foundation. Best evidence then kicks in because this may not be the original contract that was mailed to the OP. But if it was pulled from http://www.consumerfinance.gov/credit-cards/agreements/then the OP can by affidavit attest to the true copy nature of the evidence presented. This is a lot easier for the consumer than the JDB to lay foundation to authenticate, and once that is done, the JBD has to produce controverting evidence that it is not the agreement, and at that point they have the burden of laying foundation with a qualified witness, or the alternative is to perjure the testimony of the OP. Sounds like they have chosen the later.
  21. I have received a 1099 for the case that I was involved in. It was for the amount they paid me in settlement. I received a 1099C in another case where they walked away, but I was insolvent on paper that year for the IRS, so it had zero effect.
  22. Contracts offered by affidavit are not hearsay. http://www.law.harvard.edu/publications/evidenceiii/professorspages/tmch5a.htm Scroll down to Problem - Contractual Terms and Hearsay It is an issue of Best Evidence. http://lawprofessors.typepad.com/evidenceprof/2013/04/when-i-am-teaching-the-rule-against-hearsay-to-students-one-of-the-things-that-i-always-tell-them-is-that-the-rule-is-inappl.html Once the OP attested to the validity of the contract, it is up to the plaintiff to provide better evidence that it is not the contract. It is not a hearsay issue. The OP is a party to the contract so it is direct evidence of the agreement, not hearsay. Evidence is required to controvert evidence, not just creating speculation.
  23. If I offer a document to the court as evidence with an affidavit, it is now evidence not hearsay. If the opposition wants to question my affidavit then they are saying I have perjured myself by testimony. It is no longer a hearsay issue. Again, they are perverting the process. If they want to question proposed evidence or know the OPs position in the suit, that is what discovery is for. Since this is now evidense before the court for a motion, the need to present admissible evidense to counter the OP. If they cross examine during the hearing, the OP just restates what is in the affidavit. If they ask questions beyond the scope of the affidavit or motion, object as discovery is ongoing and an arbitration ruling is pending. It is an intimidation tactic.
  24. That is why an affidavit is so strong. Where did you get the contract from? What contract did they say you breached to sue you on? If they are suing on account stated, what was the agreement of the underlying account? It is a red herring. But since they have beat you to the punch, it is now on you present the source. If it is online then use the affidavit with "it is the defendant's belief that these represent the terms that govern the account." Then put the burden on the plaintiff to refute your evidence by qualified witness. Definitely respond and state that if they would like for you to testify, then they need to schedule a deposition and not burden the court with such a basic discovery issue.
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