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Everything posted by Credator

  1. ** Update to Howell ** IT IS ORDERED dismissing this case without prejudice for lack of prosecution. Party Name Relationship Sex Attorney Midland Funding L L C Plaintiff Patricio Esquivel Lisa Howell Defendant Female Pro Per Filing Date Description Docket Date Filing Party 1/9/2015 042 - ME: Case Dismissed - Full 1/9/2015 http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/
  2. @nobk4me I like the 4 digit check (not including the decimal point ) that I cashed by using arbitration as leverage. As I believe I have previously made clear, arbitration can be a good tool, in the right circumstances. No evidence exists that my realistic view of arbitration based on actual experiences and significant review of the case law surrounding arbitration somehow supports the contention that I "don't like arb". As a tool used by a competent and knowledgeable party and in the right circumstance it can be "likable". Finding a case cite other than the NAF one might be helpful, if such exists. As I stated "I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA" Some times the missing data speaks clearly and loudly. The questions is whether we choose to ignore it or try to understand whether it is telling us something significant that we can use to our benefit or to stay out of trouble. I have posted plenty of facts and data that people are free to rebut with their own cites from the law or arbitration procedures. It may assist others, with an interest in arbitration, if one can rebut the arbitration rules and other items I have cited rather than to make unsupported claims that I somehow "don't like arb." To me, contractual arbitration is merely another tool on my belt. To some it appear to be the grail. I just don't get that magical quality in my experiences and cannot put my finger on any hard data that would confirm such a reliance is warranted in a collection dispute that goes to a final hearing and award. I believe it ill advised to go into arbitration based on the allegation that I "don't like it" or someone else does "like it". I would want to do the heavy lifting and actually figure out what works best for my specific situation. I don't purport to know the answer for anyone but myself and am distrustful of anyone suggesting they know the answer on whether or not I should use consumer arbitration in a collection dispute. Best of success to the OP.
  3. From my posting I welcome rebuttal based on facts or experience. Unfortunately, our experiences are typically going to be very limited. Even if we had 9 trips to arbitration it "feels" like that the landscape has changed a lot in 5 years so the older experiences may not be as useful in predicting the current state of consumer collection dispute arbitration. I am not tasked with defending or crushing the viability of consumer contractual arbitration. I do not have a dog in the fight. It may be the right tool for the right circumstances. When someone suggests the arbitration tool can do a certain thing because a handful of people in other jurisdictions prevailed that way I would be very cautious in relying on that as my winning ace card. Still, I would hold out my verdict until I had read and understood the applicable agreement, all the applicable arbitration rules, the FAA, my state's arbitration statutes, the controlling case law in my state regarding contractual arbitration and arbitration awards (confirm, vacate, and remand), forum discussions applicable to the appropriate use of contractual arbitration. AFAIK no one has produced any statistics or evidence that indicates that the highest and best use of consumer arbitration is something other than to cause the party that is pursuing or threatening to pursue an alleged debt through a lawsuit to drop the pursuit. The resulting favorable settlement or abandonment appears to be due to the expense and risks involved in contractual arbitration. If I was unaware that there is nothing to prevent hearsay from being weighed by the arbitrator, I would not be satisfied that my knowledge was sufficient to make a proper decision on whether or not arbitration is the best approach for my particular situation. I would want to do a lot more study on the tool of arbitration. Arbitration is merely a tool, just like negotiation and litigation. I have used all three tools is moving a dispute forward. Mostly I use a combination of 1 or 2 tools. Availability and the extend of discovery allowed in arbitration is another area of knowledge I would want to have for my applicable forum before proceeding in arbitration. I find arbitration to be just as involved and difficult as litigation but with much less control and predictability. I find successful negotiation the opposite of trivial. Some seem to be searching for a shortcut. I know of know shortcuts in a collection dispute and would want to avoid the snake oil salesman purporting to have found that shortcut. In my experience the most predictable route to prevail in a collection defense, other that writing a check and making it go away, is doing the hard work to litigate in an appealable forum while making a proper appeal record. Along the way I am constantly looking for any leverage I can use. When opposing perceives that I have sufficient leverage they *may* come to the table with an acceptable or negotiable settlement offer or they could tie up the court for 2 years until they lose. But, some might say, I don't want to work that hard for only $1,000. If similarly situated, I would consider paying what the opposing party demands, assuming that attempts to negotiate a reduction, based on leverage were to fail. It is not rocket science. But from my experience it is intelligent hard work to prevail. Oh, and if consumer arbitration appears to be a farce it would likely be due to attempting to use the tool improperly. I would not expect a hammer to cut a 2x4 very efficiently. I would think that a consumer that wishes to take a collection dispute to a final hearing and arbitration award would very likely be using the tool of arbitration improperly. Opinions may vary.
  4. Thanks for the feedback. I'll try to work on that. Perhaps my post at #14 is more readable. Best of luck.
  5. The arbitrator has broad latitude to do as they please in "interpreting" the law. They have broad latitude in "interpreting" the contract. I have no reason to believe that latitude would routinely favor an alleged debtor in arbitration. Of course if I found myself in arbitration I would argue my understanding of the applicable law, contract interpretation, applicable SOL, etc. very vigorously. I don't believe that the plaintiff is fighting having an arbitrator enforce their self-drafted agreement over the law. The determination of the arbitrator on choice of law is not guaranteed. It could go either way IMHO. They wrote the contract and likely don't find its terms too onerous. I believe it is more likely the costs. They typically wanted the substantial benefits of class action waiver provided in a contract of adhesion that contained arbitration and class waiver but when an individual is threatening to avail themselves of that arbitration clause they conveniently argue that they should not have to comply with their arbitration clause and attendant costs. They are trying to have their cake and eat it too. Now, those JDBs never drafted those arbitration clauses and would probably prefer a familiar low cost lawsuit to collect from the recalcitrant alleged debtors. The court records show a lot of reversals of court's erroneous decisions. The most likely place to reverse an erroneous ruling by an arbitrator on an award is likely to be in the very court that the alleged debtor was presumably trying to avoid. Judicial review of arbitration awards is usually extremely limited from what I read. The rules of evidence are not required to be used by the arbitrator. I am not comfortable with that and much prefer court if there is to be an actual fight until a final adjudication. Before participating in arbitration it would probably be a good idea to be thoroughly familiar with the applicable rules. I have not seen anything in the rules for JAMS or AAA that would permit me to keep hearsay evidence from being presented to, reviewed by, and factored into the arbitrator's decision on an award in a collection dispute. Perhaps someone can point that rule out and post a link to it on the forum. http://www.jamsadr.com/rules-streamlined-arbitration/ Rule 17. The Arbitration Hearing (d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. http://www.jamsadr.com/rules-comprehensive-arbitration/ Rule 22. The Arbitration Hearing (d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130 R-34. Evidence ... Conformity to legal rules of evidence shall not be necessary. Arbitration does not rely on precedent or stare decisis. Every case is a brand new case in front of an arbitrator. Sometimes the arbitration agreement itself even addresses the issue: http://www.syncano.com/terms/ 9.3.5 AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF. I read that to mean: 1. if the exact same dispute occurs; 2.) between the same parties; and 3.) I had prevailed with a favorable arbitration award & confirmed judgment in the first dispute I would not have any expectation that I would automatically prevail in dispute #2 and I cannot use the previous arbitrators award or the court's confirming judgment to assist in proving my case.
  6. My #16 post presented numbers and facts about MI courts that will appear to remain unchallenged. They appear to be reliable facts to me but others are free to take issue and introduce their contradictory facts. I did take 43 word out of my 542 word post to simply state what should be fairly obvious to anyone that happened to be famiiar with both AZ and MI courts. "The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier." I fail to see any significant controversy in such a simple and high level jurisdictional comparison unless one is somehow sensitive enough to actually be offended at even a tangential jurisdictional scope comparison of the purported rule-adhering MI courts to those scummy rule-violating AZ courts. It is doubtful anyone could read into my mere two sentences that AZ law and rules are the same as MI. I suppose anything is possible even if not plausible. Before I would be comfortable suggesting that the MI District Court is where "the Judge will adhere to all the rules" I would want to review the record of the District Court judges on appeal. The MI Circuit Court that reviews the MI District Court judges decisions for errors made over 3500 reversed and remanded errors. Whether this number is excessive or fairly good compared to other jurisdictions does not matter IMHO. What matters is if I am one of the 3500+ that appealed or one or the unknown litigants that never appealed and my trial judge made a reversible error. Perhaps MI is really different from other states and the lower court judges routinely outshine their appellate judges in making less reversible errors in their decisions based on their better adherence to the rules. I am a bit skeptical and will await supporting facts should they exist. Since I will routinely make a proper trial court record for appeal, I suppose I don't need to concern myself with whether a judge adheres to the rules (like MI District Court is purported to) or does not adhere to the rules/ law (like I have experienced in AZ). I just document it for the next judge to reverse. Others are free to rely on a unsupported claim, "that in District Court and the Judge will adhere to all the rules". The numbers show that It does not work that way in the MI Circuit Court that does the appellate review for the MI District Court.
  7. @Clydesmom http://www.jameseduc...ions-checklist/ 9. Counsel is testifying. “OBJECTION: Your Honor, counsel is trying to testify himself, instead of having the witness do it.” DISCUSSION: The objection that “Counsel is testifying” is heard so often, that we include it in this list of “the basic two dozen.” However, the objection usually could just as well be phrased as “leading” or “argumentative” or “assumes facts not in evidence.” The objection is to parts of the question which contain facts or opinions not in evidence. The MI District Court has limited jurisdiction compared to the Circuit Court in MI. The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier. An appeal of a reversible error made by a MI District Court judge would be made to the MI Circuit Court. I may be wrong, but I doubt the decisions of the MI Circuit Court have any significance as precedent setting or citable law. The need for appellate review would diminish in MI (and elsewhere) *if* we could rely on the "Judge will adhere to all the rules". In google's scholar there are currently 3,510 hits in MI for the phrase "reverse and remand". These cases are likely being remanded back to the Circuit Court and not the District Court. If the circuit court judge's cannot adhere to all the rules and have to often be reversed on appellate review, I am not sure how one could make the assumption that judges in the district court beneath them are somehow better qualified to adhere to the rules. This trial judge did not seem to adhere to the "rule" requiring a jury trial: Benjamin v. SAVIN LAKE SERVICE, INC., No. 304246 (Mich. Ct. App. June 12, 2012). We find that the trial court erred in concluding that Benjamin was not entitled to a jury trial for his wrongful termination claim. Applying the rule above, Benjamin had a right to a jury trial on his wrongful termination claim,[7] which he appropriately invoked by filing a timely demand. ... Reversed and remanded for proceedings consistent with this opinion. -- Whether or not I have representation, when it has my name on the caption, I assume it is my case to win or lose. I will not rely on the judge to do his/her job properly for my ability to "win". It is a risk in litigation that I refuse to take and it is why I believe that if I don't plan to appeal I plan to lose. I suppose others are free to choose to rely on their judge "adhering to all the rules". When opposing counsel does testify (they cannot help themselves), I would immediately object on and for the record if the judge doesn't shut them down mid-sentence. It is not a trivial job that the OP has engineered for themselves IMHO. If an issue matters to me, I would always give it my best. If the opposing party fails to be granted their MSD and a proper trial brief is timely filed it *may* cause the opposing party to become interested in settling FAIK.
  8. I have not seen much of an indication of "pro-creditor" rules of evidence in "many states". I would be interested in the specifics for MI of the "pro-creditor" rules of evidence. Regardless, it is critical to be an expert on one's rules of evidence and even more important to know how the law interprets them. It is critical to know ones civil rules of procedure very well. It is critical to comply with deadlines and force one's opponent to comply with their deadlines. I would want to make sure there is a proper record of the MSD hearing and the trial to permit a successful appeal to reverse any errors or abuse of discretion made by the judge that resulted in an adverse to me decision. A plaintiff bringing a cause of action must be properly challenged on and for the record if they fail to prove up by admissible evidence any of the required elements of their cause of action. MI breach of contract required elements: The elements of a breach of contract action are (1) the existence of a contract between the parties, (2) the terms of the contract require performance of a certain action by the defendant, (3) the defendant breached its obligation to perform, and (4) the plaintiff incurred damages as a result of the breach. Synthes Spine Co, LP v Calvert, 270 F Supp 2d 939, 942 (ED Mich, 2003). The essential elements required in MI to prove up a contract by admissible evidence: The essential elements of a valid contract are: (1) parties competent to contract; (2) a proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Hess v. Cannon Township, 265 Mich.App. 582, 592, 696 N.W.2d 742 (Mich.App.2005). If I show on and for the trial court record that a plaintiff that brings a cause of action for a breach of contract fails to provide admissible evidence for even one of the 9 elements required for BoC & contract, the plaintiff should fail in their cause of action. Either at the trial level or upon my timely and proper appeal. Not a CC agreement but this shows some of the case law in MI relative to signatures: Ehresman v. Bultynck & Co, 511 N.W.2d 724, 203 Mich. App. 350 (Ct. App. 1994).Furthermore, we approve of the following principles set forth in 17 CJS, Contracts, § 62, pp 731-733: ignature is not always essential to the binding force of an agreement, and whether a writing constitutes a binding contract even though it is not signed or whether the signing of the instrument is a condition precedent to its becoming a binding contract usually depends on the intentions of the parties. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways.... In the absence of a statute or arbitrary rule to the contrary, an agreement need not be signed, provided it is accepted and acted on, or is delivered and acted on. Plaintiff does not deny that he accepted the delivery of the agreements and operated under their terms by, for example, enjoying a leased automobile, an American Express credit card, reimbursement for expenses, and payment of compensation. ... Affirmed. --- The "Plaintiff does not deny..." and similar comments by the courts, in their decisions. light the path and shows the outcome *may* have been different if the party alleged or affirmed differently than the record shows. IMHO An unpublished MI case with a different outcome: AUBURN FINANCIAL CENTER v. Adams, No. 285002 (Mich. Ct. App. June 2, 2009). Based on the present record, we conclude that there was insufficient evidence of mutual assent to bind plaintiffs to the arbitration provision of the proposed operating agreement. ... We reverse the trial court's grant of summary disposition for defendant and remand for further proceedings. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs. Another unpublished decision providing good insight as to how the courts are likely to interpret things: In response to Citibank's motion, Muldrow argued that Citibank's documents were unsigned and unsupported and, therefore, could not be used to support its motion. She also argued that the affidavit was invalid, that Citibank lacked standing to sue because it was not registered to do business in Michigan, had unclean hands, and violated federal law in seeking to collect the debt. ... Further, the records plainly established that Muldrow applied for a credit card, which application was approved, transferred a substantial balance to the account, made numerous purchases on the account, made some payments, and ultimately breached the agreement by failing to make the required payments. This evidence was minimally sufficient to establish a meeting of the minds as to the material terms of a lending agreement, Muldrow's breach of that agreement, and the amount of Citibank's damages. See Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742 (2005) (noting the elements to form a contract); Stoken v JET Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988) (stating that, in order to prove breach of contract, the plaintiff must prove the existence of a contract, a breach of the contract, and damages). Because Citibank properly supported its motion for summary disposition, Muldrow had to respond by presenting evidence that established a question of fact on at least one element of Citibank's claim, which she did not do. Barnard Mfg, 285 Mich App at 374. Therefore, the trial court properly granted Citibank's motion. ... There were no errors warranting relief. Affirmed. -- I view my task, in defending a collection lawsuit, as to object to any evidence that is hearsay or inadmissible with a focus of showing they failed to prove by admissible evidence on or more of the essential elements to their cause of action. I assist the trial judge in ruling in favor of the law and rules (cited in my trial record) that supports my arguments and defeats my opposition's arguments. Having made my proper record I appeal if the judge errors and rules against me. My priority at this point would likely be defeating the MSD and making a proper trial court record so that, if the court should rule against me, I can show that the court has erred on the laws and the admissible evidence. Meanwhile I would want to be preparing for trial. Getting a continuance on the trial date and propounding discovery on opposing, if permitted by the rules, would be something I would be interested in researching. Timely filing any required trial brief documents would be high on my todo list. Having never been sued by a JDB it appears that the defense often pursued against JDBs is the issue of standing. The thread in #10 is likely a good resource and I would speculate it probably touches on the issue of standing. Objection (some insights here: http://www.jameseducationcenter.com/articles/essential-objections-checklist/ ), followed by the reason I am objecting would probably be frequently voiced by me at an MSD/MSJ hearing that is being preserved by a court reporter, audio recording, or whatever is proper in my jurisdiction. If I have no money for a court reporter and there is no recording made by the court I would probably request the court allow me to record it myself and offer to provide opposing a copy of the recording. The worst they can say is no. I would not expect to be sworn in or have to affirm anything and would refuse to be the plaintiff's witness at a motion hearing. I would expect opposing counsel to testify and I would object to it. In federal 28 U.S. Code § 1746 and AZ Rule 80(i). Unsworn declarations under penalty of perjury declarations appear to fill the shoes of a sworn affidavit. I have yet to see a CC related collection use a declaration in AZ. I do not know if declarations are permitted in lieu of affidavits in MI. I did not see MI on this list: http://apps.americanbar.org/dch/thedl.cfm?filename=/IC756000/newsletterpubs/UnswornDecs.DOC . In CA the court rules appear to prohibit the use of an out of state declaration. I have used an out of state declaration in a CA Superior Court on a minor issue and the court did not reject such usage. If MI courts accept declarations by witnesses I would want to make sure that any declarations that opposing has filed with the court were in compliance with the requirements for a declaration in MI. Collection litigation, it is so easy I don't know why everyone doesn't want to do it.
  9. I have not experienced anything "great" about private contractual arbitration. The application of case law or contract terms in arbitration being more predictable, reliable, and reversible in arbitration than in court is also outside of my experience.. There are multiple AZ Court of Appeal reversals on CC summary judgments granted to OCs in the last year or two. See #22. I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA. Perhaps those grants of vacatur of an arbitration award just never get appealed from the trial court in AZ. IDK Here is one I found that is a confirmation for a NAF award:FIA CARD SERVICES, NA v. Levy, 200 P.3d 1020, 219 Ariz. 523 (Ct. App. 2008). Perhaps there are some vacated arbitration awards for CC collection disputes to be found in NJ. This may be a start on that search: http://scholar.google.com/scholar?q=%22arbitration+award%22+vacate+%22credit+card%22&btnG=&hl=en&as_sdt=4%2C31
  10. The court would be the one imposing the sanctions. I usually have my hands full without pursuing sanctions for the lying and other bad behavior by DC attorneys. Having not filed similar, I believe the process usually involves something like a motion for an order to show cause why sanctions should not be brought. The opposing party gets a chance to explain their behavior, likely remedy the issue, and possibly avoid sanctions. Anyone that has pursued and received sanctions against an opposing party could probably better explain the procedure. At least in their jurisdiction. If appropriate I would probably make sure I clearly and politely documented on and for the record their failures. If not easily done in the record I may choose to send them a courtesy letter via CMRRR asking that they be sure to serve copies of all future filings as required by AZ civil rules of procedure xxxx© and xxxx(a) and noting the specific filing(s) they failed to send. If they insist on bad behavior I would then consider the hassle of properly attempting to pursue sanctions. Enjoyed reading dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish: http://practiceoflawblog.com/dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish/
  11. I would check the terms of my Verizon agreement. It may allow for arbitration or small claims. This one appears to permit AAA, BBB arbitration or small claims: http://www.verizon.com/ResidentialHelp/Generic/General/General+Topics/General+Questions/130383.htm?CMP=DMC-CVZ_ZZ_ZZ_Z_ZZ_N_X327 and includes a 30 day notice of dispute process: http://www.verizon.com/NROneRetail/NR/rdonlyres/90441AD2-595E-41E8-938E-BBBA785A19C7/0/VZ_Notice_of_Dispute_062512.pdf Taking an action such as noticing Verizon of arbitration, should it be available in the applicable agreement, *may* light a fire under them to resolve this small dispute quicker IDK. I would not take the filing of an AAA arbitration or court claim lightly. BBB seems to be much less formal and may be a viable option if available. It is possible that a AAA arbitration filing with its higher costs may be the most concern to Verizon and may get them to resolution quicker. Another option might be to consult with an competent consumer attorney that may be able to get a quick resolution.
  12. A consumer winning a favorable arbitration award on a debt collection defense is highly unlikely. Arbitration is mainly a *potentially* cost prohibitive tool to cause the collector to abandon or favorably settle. I am not sure why there would be a "push on most credit sites is to MTC A with issues like this". If I recall correctly the OP's alleged debt is around 10k. Not what most would call a small alleged debt (small debts in high cost arb forums can create significant leverage for the alleged debtor in a collection dispute). JAMS arbitration consumer statistics: JAMS Disclosures for Consumer Arbitrations shows that the four AMEX arbitration cases that went to final hearing and award were all listed as NONCONSUMER under the Prevailing Party heading. The JAMS data shows: The consumer with the attorney representation lost an award for $23786.74 The consumer without attorney representation lost an award for $26933.36 The other two list award as NA The majority (23 out of 39) listed settlement as the Disposition Type. If filing in JAMS with AMEX, from a quick review of the statistics, I would probably be looking for an opportunity to settle whenever the terms offered were acceptable to me for resolving the dispute. The data does not show whether the settlements occur early in the process, at the final hearing or at any time in the process. Perhaps some would say I have a bias against arbitration ( I do not believe that is the case since I have received a check from a CA based on arbitration provided leverage). I think I have a realistic view of contractual binding arbitration's potential benefits in consumer cases and it's limitations. I also have collection defense "wins" in litigation and am much more confident that I can prevail in litigation Still, from my experience: In Arbitration No One Can Hear You Scream TM
  13. In a non-judicial foreclosure state, I have a note for my home loan with one spouse's signature on it and two spouses on the security/deed of trust. This occurred because it was what I wanted, I asked for it, and if the loan was denied I would have rented, paid cash, or financed outside of traditional banking. One-signature-notes may be much more likely to occur in states that bar deficiency when a home that was repossessed under foreclosure has a shortfall to pay off the loan due to more loan than value. It has happened in the past does it today? IDK Does it happen in deficiency states? IDK If I was the mortgagee I would likely want two signatures on the note if in a deficiency state. I find I rarely get what I don't ask for.
  14. As I understand the statistics they publish it doesn't appear to me that AAA "doesn't do consumer credit anymore". From AAA arbitration consumer statistics: Provider Organization Report I found the following for 2013-2014Q1. The majority appear to be debt related with a few employment disputes in the mix. 57 AMEX 11 Capital One Bank 121 Citibank, N.A. 86 Discover Bank 4 Midland Funding, LLC Of the 81 total AAA consumer claims filed in Q1 of 2014... 2 Citibank, N.A. 2 Discover Bank 2 Capital One Bank (USA), N.A. 6 AMEX Even if, as appears to be the case, the AAA is handling debt disputes (perhaps only ones filed by consumers IDK) the applicable contract arbitration terms will guide as to whether the consumer can compel arbitration from a small claim venue. If available, AAA may still be desirable even if JAM$ is preferable. As for the SOL it appears to be 10 years: http://research.lawyers.com/rhode-island/rhode-island-statutes-of-limitations.html http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html Looks like it has been 10 years for some time: http://www.vedderprice.com/files/Publication/e1ad17ad-3cc7-4c51-9d94-09145f4da91f/Presentation/PublicationAttachment/d6b692fb-94a0-47b4-979f-c7b3f0a2c950/c20de91d-c385-42d3-9865-7453c10832b6_document.pdf
  15. If arbitration is determined to be the best route to resolution, Linda7 discusses the Chase 2004 and 2005 agreements in this thread: http://www.creditinfocenter.com/community/topic/311471-chase-bankone-cardholder-agreement-2005/#entry1140250 I founds 5 entries for Midland in the AAA statistics Provider Organization Report. The resolution of the 5 arbitration cases with Midland as I read it: 3 settled, 1 withdrawn, and 1 awarded $15k to the non-consumer. AAA Rules/Procedures are here: https://www.adr.org/aaa/faces/rules JAMS Rules/Procedures are here: http://www.jamsadr.com/rules-clauses Of course there are no guarantees in litigation or arbitration and past results do not necessarily predict future results. EDIT: Of course the applicability of any enforceable binding arbitration is going to be found in the specific details of the applicable arbitration clause.
  16. Not scary to me if brought in AZ superior court. I find small claims court a bit unnerving. I would much rather appear before an AZ court 3 levels above small claims. The AZ CoA knows the law, makes the law, and follows the law. Assuming that the rules of evidence apply in RI small claims and assuming I don't have to pay to be able to read them: http://legalsolutions.thomsonreuters.com/law-products/Court-Rules/Rhode-Island-Rules-of-Court---State-and-Federal-2014-ed-Vols-I--II-Rhode-Island-Court-Rules/p/100259800 (perhaps I can review them at my local courthouse or nearby law library) I would want to read them and try to have a good understanding of them. The rules of evidence, when enforced by the trial court, is how collection defendant's often prevail AFAIK. As I read it, the uploaded affidavit is a conclusory statement that fails to reference any evidence and presumably none was attached to the affidavit or certified, if required by RI rules of evidence. I don't see where the affidavit brings in any admissible evidence to prove up the plaintiff's claim (s). As I read it and would not survive with me as defendant in AZ. I don't know what the courts have ruled in RI but below are some of their thoughts. The RI Supreme Court doesn't appear to accept conclusory affidavits from a defendant:--The defendant, Cory Johnson, appeals from the Superior Court's entry of summary judgment in favor of the plaintiff, American Express Bank, FSB (American Express), for $928,028.64, plus interest and costs....Mr. Johnson submits that the instant case mirrors Visconti because he stated in his affidavit that he had disputed numerous charges that never had been resolved. We disagree. Unlike the affidavit that the defendant submitted in Visconti the affidavit submitted by Mr. Johnson in the instant case consists of a mere conclusory statement that he had disputed numerous unspecified charges. He did not specify which charges he had challenged, nor did he come forward with evidence of the amount he alleged to be in dispute. We believe this case to be more analogous to the facts underlying our opinion in Egan's Laundry & Cleaners, Inc. v. Community Hotel Corporation of Newport, R.I., 110 R.I. 719, 297 A.2d 348 (1972) (Egan's Laundry). In Egan's Laundry, the plaintiff filed a complaint to collect on a book account for laundry services rendered to the defendant. Id. at 720, 297 A.2d at 349. The defendant filed a reply that generally denied owing the amount stated in the plaintiffs book account. Id. at 720-21, 297 A.2d at 350. This Court stated that there exists "an affirmative duty on the adverse party to set forth facts showing that there is a genuine issue of fact that will be resolved at trial. Such party must act diligently and in good faith to rebut the evidence presented in support of the motion, and he may not save his evidence until the day of trial." Id. at 723, 297 A.2d at 351 (citing Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488, 261 A.2d 19, 21 (1970))....Here, the defendant's affidavit fails to specify the charges he is challenging, the reasons he is challenging them, and the amounts he is disputing. An unsupported statement that the defendant has disputed some of the charges is insufficient to defeat the plaintiffs motion for summary judgment. As we said in Egan's Laundry, 110 R.I. at 723, 297 A.2d at 351, "the bald assertion that [factual issues] do exist is insufficient to place the [defendant] beyond the reach of summary judgment." AMERICAN EXP. BANK, FSB v. Johnson, 945 A.2d 297 (R.I. 2008). -- I am not sure that a RI court would find a conclusory affidavit acceptable to prove up the elements of the plaintiff's claims, but I a quick search did not find anything specific to RI plaintiff's conclusory affidavits. If staying in small claims court, I would want to find and read the RI rules of evidence and attempt to use them in small claims. I would want to plan on an appeal and make the best record by objection and a proper record of the hearing.http://www.courts.ri.gov/Courts/districtcourt/Pages/Small%20Claims%20Court.aspx#Small Claims (Coming Soon) Gee, your Mr./Mrs. Judge can I wait until the site is actually up to defend my case?! I would want to determine the specific cause of action being brought and identify the required elements that must be proved by admissible evidence. The required elements for a breach of contract claims in RI are cited here: A breach of contract claim requires a plaintiff to show: (1) the existence of a valid contract; (2) a breach of that contract; and (3) resulting damage to the plaintiff. See, e.g., Ramada Worldwide, Inc. v. Kim, No. 09 Civ. 4534 (WHW), 2010 WL 2879611, at *3 (D.N.J. July 15, 2010) (citing AT & T Credit Corp. v. Zurich Data Corp., 37 F. Supp. 2d 367, 370 (D.N.J. 1999)); Gorman v. St. Raphael Academy, 853 A.2d 28, 33 (R.I. 2004) An element of breach of contract is the contract. It also has elements that (in a court of law requiring the rules of evidence be followed) must in turn be supported by entry of admissible evidence.The essential elements of a contract are "competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation." Rhode Island Five v. Medical Assocs. of Bristol Cnty., Inc., 668 A.2d 1250, 1253 (R.I. 1996) (internal citation omitted); See also Lamoureux v. Burrillville Racing a$$'n, 91 R.I. 94, 98, 161 A.2d 213, 215 (1960)). I view my primary tasks in defending a collection suit as keeping out and objecting to any evidence that opposing tries to enter as admissible and making a proper record for an appeal court to reverse any errors or abuse of discretion by the trial judge.http://research.lawyers.com/rhode-island/ri-after-small-claims-court.html Appeal the Judgment The plaintiff gives up the right to appeal by using small claims court. There is a waiver of the right to appeal on the small claims form that is signed by the plaintiff or the plaintiff's attorney. A plaintiff can appeal only an adverse decision on a counterclaim. If the defendant loses the case, the defendant may appeal to the superior court for a new trial. However, the defendant can't appeal an adverse decision on a counterclaim. The appeal must be filed in writing with the small claims clerk within two days, not including weekends and legal holidays. Detailed instructions for filing a small claims appeal are available from the clerk of small claims court. If I lacked an FDCPA or similar state (when applicable) statutory violation counterclaim, since I am not impressed with small claims court's reliable application of the law and the rules of evidence, I would probably want to compel arbitration on such a relatively small alleged debt. JAMS is expensive and preferable to the consumer as it encourages the adversary to abandon pursuit due to cost and risks exceeding their perceived benefit. A "win" in contractual arbitration is usually based on the plaintiff abandoning the legal pursuit of the alleged debt or creating enough leverage based on risks and costs to opposing that a favorable settlement to the consumer is worked out. If it goes all the way to a final hearing and award *I* would expect to lose. Arbitration is a bit of a gamble and seems to work best when the alleged debt is small, owned by a JDB that paid 5% off the face amount, the CC agreement has favorable terms such as JAMS is available, each side pays their own attorney fees win or lose, and the alleged debtor has exempt income and assets. Favorable terms and situations for the consumer drive up the cost and risk for the collector and *may* cause them to abandon the case. Often there are survivability terms in the CC agreement's arbitration terms that I would argue allow the use of an older agreement rather than the latest. Chase removed contractual arbitration form their CC agreements in February of 2010. In the latest JAMS statistics I had downloaded in March, 2014 "Midland" appears 17 times and none of the arbitration cases went all the way to an award. Settlement and abandoned split the results with the leftover case being consolidated with another case. If similarly situated those results would make JAMS attractive for me to consider pursuing. JAMS arbitration consumer statistics: JAMS Disclosures for Consumer ArbitrationsAAA arbitration consumer statistics: Provider Organization Report I don't find enforcing and/or pursuing contractual arbitration terms to be a trivial task. Whether or not to arbitrate is not likely an easy decision unless the situation is lined up as highly favorable or disfavorable to the consumer. It is especially not an easy decision when a court deadline quickly approaches.
  17. It seems typical for the motion to confirm an award to be filed after the 90 day deadline for a motion to vacate the award has passed. Some statistics on vacating arbitration awards: http://meetings.abanet.org/webupload/commupload/DR011000/relatedresources/DRMag-VacaturArticle.pdf Looks like about 1 in 5 are vacated. Best grounds appear to be an arbitrator exceeding their authority.
  18. That is also my impression from my limited experience with such. Having previously read section 5150 of the California Welfare and Institutions Code and its "extended stay" relatives, but not knowing anything about Mississippi laws, I would guess my main leverage is likely to be any hospital/providers billing overcharges or errors. The same disputable issues I would probably find on a "normal" medical bill. Billing-wise I would want to make sure they followed the MH statutes and/or laws to the letter. I would consider this the low hanging fruit to be exploited. When/if a collector starts violating state and/or federal statutes that provided for a private right of action or some other collection related cause of action I would consider that to be some more low-hanging fruit to exploit in my continual pursuit of leverage to help me "win". In collection disputes I am always looking for the leverage necessary for a "win" (we each define our own "win" IMHO). Others appear to be looking for some magic shortcut or an "easy button". Still others seem to be wanting to pursue a scorched earth fight. I find it helps to start with the end in mind. I'd want to ask myself what am trying to accomplish. Perhaps my priority is a clean credit report, making favorable consumer collection case law, not having to pay the disputed debt, and/or something else. After I nail down my priorities I can do the research necessary to put together a realistic plan of action.
  19. Despite being allowed I would not think it wise to use verbatim templates for DV letters for the same reason it is not a good idea to use verbatim templates for pleadings or motion practice filings. A DV letter is a communication IMO. I would ask myself what am I trying to communicate before drafting one. All my DV letters have been focused and unique (after the first one anyway). I don't restrict myself to what the fed/state statutes or law require for a collector's response to a DV letter. If I want to know why they are not licensed, as required by my state, I'll ask the collector. There are differing views of what constitutes a "good" DV letter that can be found by searching the forum. Consensus seem to be, that when sending a timely DV letter, long and rambling is not such a good idea and sending via USPS CMRRR is a good idea.
  20. Sure, OP = Original Poster and FAIK = For All I Know. A couple I also use are AFAIK = As Far As I Know and IDK = I Don't Know. Some acronyms specific to the forum subject matter can be found here: http://www.creditinfocenter.com/community/topic/247970-commonly-used-abbreviations/
  21. 1.) I have had an OC violate a plain and simple agreement to their benefit. I would not trust a JDB to honor any agreement. I don't know of a situation where I would agree to a payment schedule with a JDB like PRA or their peers. A lump sum settlement with one may be necessary but I would get that in writing and proceed with caution. Collectability on one account would seem likely to cause the JDB to believe they should be able to collect on the others. Perhaps by merely threatening a lawsuit. 2.) Nope. In my experience, if they are going to sue, they are going to sue. That is what DC attorneys do for a living. 3.) A DC attorney likely doesn't believe that a debtor would file BK and therefore they are not likely to be too concerned. If my BK attorney called to work out a settlement lump sum payoff that *might* get their attention. 4.) As for the impact on my situation regarding the timing of a BK and a court issuing an adverse judgment, I would want to ask that question of a couple of competent and well respected BK attorneys. If I was seriously considering BK, while wolves were knocking at the door, there is no reason that I can think of to wait on consulting with at least of couple of good ones to get all my questions answered. If BK was the correct choice for me then I probably don't need to spend a lot of time learning about how to deal with debt collection and the industry's associated minions. If BK was not my correct choice it is best to get that off the table quickly and not have it cloud my judgment while learning about and pursuing an alternative path. I assume a DC attorney, that makes their living suing on alleged debts, knows the statute of limitations on a given spreadsheet entry with my name on it. I would be surprised if ignoring a DC attorney lets me slide through and run the SOL. In other news, I enjoyed reading this case: Warren v. Sessoms & Rogers, PA, 676 F.3d 365 (4th Cir. 2012). seems like Warren put together a nice FDCPA complaint in the 4th Circuit: For the foregoing reasons, we hold that the defendants' offer of judgment did not moot the case and that the district court erred in concluding that Warren's amended complaint failed to allege violations of 15 U.S.C. §§ 1692c(a)(2) and 1692e(11). Thus, we reverse the judgment of the district court and remand for further proceedings.[5] REVERSED AND REMANDED. Perhaps this is not typical of Sessoms work. I did not find much online about them being sued by consumers.
  22. While they may not be provided for they do happen: http://scholar.google.com/scholar?q=sur-reply&btnG=&hl=en&as_sdt=4%2C3 None of the cases on scholar were citable case law. I would probably ask leave of the court if I wanted to file a sur-reply and explain my good reason for wanting to file such in my motion for leave. If considering a sur-reply I would probably want to review the appellate decisions to see how the court typically (if the few decisions I found can provide some guidance) treats a sur-reply.
  23. "You ... are responsible for payment of the treatment you received. Period." Probably, but to be confident that was indeed the case I would want to consult with a competent attorney that had subject matter expertise before I determined how my state's law applied to my specific facts and circumstances. Lots of moving parts here IMHO. Perhaps the hospital/provider stepped outside the requirements of the law and either intentionally or unintentionally over-billed IDK. There are plenty of exemptions to the Patient Protection and Affordable Care Act regarding medical insurance "being required by law" : https://www.healthcare.gov/exemptions/ Without inquiring into the OP's ethnic, religious, financial, and residency information I am not sure that it can easily be determined that the OP does not qualify for an exemption. Even if no exemption is applicable, the alternative provided by the PPACA, as I understand it, is to pay a financial penalty/tax/fine/$$$ in lieu of purchasing medical insurance. "Never" seems a pretty strong word and I am not confident it applies to the OP as far as their ability to prevail in their dispute. If similarly situated, a very skilled attorney reviewing all the pertinent facts seems like a very good idea IMHO.
  24. The method of sending (while not inconsequential) is less important than the purpose of the communication IMHO. A DV letter is a communication.
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