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Everything posted by usagi555

  1. usagi555


    I did do a google search, and got conflicting information. If you don't like it, you don't have to read it.
  2. usagi555


    I'm 100% debt free. These calls are most likely skip tracing. If I do record the next call, it will be NSFW x 9001 though.
  3. usagi555


    I'm a DIY kind of guy, and I don't view this as serious, so it's not worth the effort to sue for me. Besides, I was told that the filing fees for Federal went up to $500. I got sued by Citi a few years ago, kicked their asses in court, netted a dismissal with prejudice, then got sent back to collections. This is nothing, and I'll be happy with being abusive on the phone. Which collection agency it is, or if it is in house is what I don't know and was hoping somebody had some info.
  4. usagi555


    Does anybody know anything about a presumed collection agency that shows up on the caller ID, sometimes under the name /conn's/ and other times under conn's? I've been getting a call from them about every other day, and I haven't been answering. Finally, today, somebody else picked up the phone, and said that the woman on the other end was rude and asking for somebody who doesn't live here. I sniffed around, based on the numbers that had been calling, and a few people were saying that this particular group is somehow related to Allied Interstate, and the call smacked of skip tracing. Part of why I think this is a debt collector is the rudeness, followed up by admonishing the use of the word "damned" with the woman who had called saying "you don't need to use that tone with me," i.e. somebody trying to assert authority. I'm not too worried about it, as I'm pretty sure that I'm WebRecon, and they're asking for somebody that I don't even know. If they call back, I'll pick up this time, and if you're lucky, I'll remember to record it, and I do plan on being abusive.
  5. Yup, my neighbor's elm decided to drop its seeds right when the wind was blowing towards the garden, and it's a big elm, with lots and lots of seeds. Elms are not a tree, they're a friggin' weed! I've pulled at least 1,000 of them up within the past 5 or so days. On the brighter side, it looks like my chile transplants are finally starting to take root. The corn and beans are coming up like crazy. There are 3 varieties of corn thus far: Painted Mountain (flour,) Navajo Blue Corn (flour) and Country Gentleman (sweet). I also have three kinds of beans, pinto, anasazi and tepary, all of which are or once were staples of my geographic region. The garlic is over a foot tall, lettuce, chard, carrots, beets and onions are coming up. I killed 2 of my 5 tomato plants because I had to leave on a moment's notice right when I put them into the ground and tried to rely on a soaker hose to get water to them. One did great (the soaker stayed right where I wanted it for that one,) and I managed to nurse the two remaining ones back to health. I'll be planting plenty of squash and some NM mellons here within the week. I'll basically be succession planting a wide variety of things after that probably until July. But then again, it's a 2500 ft^2 garden with 1500 ft^2 of beds to plant in, and a growing season that typically goes on into October. And I already have the lumber should I decide to build a decent sized greenhouse. Within the next week or two, I'll have about 2 cubic yards of finished compost and I'll start on another 2. Maybe 4. I have access to unlimited horse manure, but hot composting prior to use is a good idea as horse manure tends to contain plenty of seeds. I know this from personal experience.
  6. I have more than just an alleged contract being dissolved to throw at them. I'm speculating that the bank does not want this case to be public, because should I be successful, it will open them up to consumer lawsuits for every single CC suit that they file against consumers. And I have a case where I can get a lot more than strict liability damages. I have 2 torts that the judge let stand in what was a rather scathing (at them, not me) opinion. I've gone beyond consumer protection law on this. (P.S. The arbitration clause they are using has no survivability clause in it.)
  7. Well, seeing that, assuming that everything you've put in that motion is correct or at least arguably so, I would worry a lot less about it. You might not win on the motion, but I don't see that as being frivolous or being submitted in bad faith.
  8. Here is a thread for people to post about whether or not their states toll the statute of limitations during pending actions in courts. I'm in New Mexico and have never had to deal with such a question, but did just stumble across this: http://scholar.google.com/scholar_case?case=1671844755915110813&q=res+judicata+merits+voluntary+dismissal+with+prejudice&hl=en&as_sdt=4,32 In deciding this case, we must necessarily decide whether the statute of limitations is tolled by a suit which is dismissed without prejudice, or whether we treat a dismissal without prejudice as actually leaving the situation as though suit had never been brought and the statute of limitations never tolled. . . . After a consideration of the purpose and policies underlying Rule 41, we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed 1245*1245 without prejudice because of a failure to prosecute, the interruption is considered as never having occurred. . . . As the court stated in Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191 (8th Cir.1976), we hold that a dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending. A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. Rule 41(e) specifically addresses this concern. Holding that a Rule 41( dismissal without prejudice tolls the statute for the time the case was pending could conceivably extend the time for bringing suit indefinitely; the plaintiff could continuously refile but never act to bring the case to its conclusion. Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action. A plaintiff who files near the end of the limitations period benefits from being able to prosecute his claim after the period has expired, but if he fails to take advantage of that opportunity, and suffers dismissal for failure to prosecute, there is no reason to let him have an extended period in which to sue. And this: http://scholar.google.com/scholar_case?case=14964010928788191273&q=res+judicata+merits+voluntary+dismissal+with+prejudice&hl=en&as_sdt=4,32 In making this argument, Plaintiff relies on King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982). Our Supreme Court in King held that when a case is dismissed without prejudice, it "operates to leave the parties as if no action had been brought at all." Id. at 181, 646 P.2d at 1245. Thus, "[f]ollowing such [a] dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending." Id. If the statute of limitations runs before the complaint is re-filed, the case must be dismissed as being outside the statute of limitations. We do not believe that King is applicable here. As we pointed out in the second calendar notice, the rules of civil procedure regarding involuntary dismissals have been substantially changed since the decision in King. Prior to the change, if a case was dismissed for lack of prosecution, a new complaint was required to be filed to place the matter back on the court's docket. See Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 109 N.M. 492, 787 P.2d 411 (1990). The new rules, however, allow for the reinstatement of a case that has been dismissed without prejudice for lack of prosecution upon a showing of good cause. NMRA 1-041(E)(2). Thus, a new complaint need not be filed in order to proceed. A party need only move for reinstatement of the case and show good cause for the lack of action in the case. Vigil v. Thriftway Mktg. Corp., 117 N.M. 176, 179-80, 870 P.2d 138, 141-42 (Ct.App.1994). To "reinstate a case" means that the case is simply reactivated at the same point in the proceedings where it was dismissed. See Black's Law Dictionary 1287 (6th ed. 1990). Because a new complaint is not filed and the case is simply reactivated, there is no problem with the running of the statute of limitations. Cf. Baca v. Atchison, Topeka & Santa Fe Ry. Corp., 121 N.M. 734, 735, 918 P.2d 13, 14 (Ct.App.), cert. quashed, 121 N.M. 783, 918 P.2d 369 (1996). Conclusion: If a case is dismissed without prejudice, it appears that the SOL is tolled in the case where that very same case is reinstated, but it is not tolled if a new case is filed. At least that's how I read it. So, if you're in NM, and you don't get served, the courts here will clear the dockets and start dismissing cases due to a lack of prosecution. Collection attorneys will sometimes try to get the case reinstated by showing "good cause," so if they filed close to the SOL here in NM, you may be SOL on your SOL defense. On the other hand, if they are forced to file a new case, They'll be SOL should you bring up an SOL defense. Important Edit! I haven't yet tracked down the case, but I saw something that stated that King v Lujan only applies to dismissals that are due to a lack of prosecution, so if you are in NM, and the plaintiff dismisses against you, LOOK INTO THIS before you use SOL as a defense if they refile!
  9. The attorney could be bluffing. Or not. Nobody here can say without knowing the procedural history of the case. If you're just trying to strike right off of the start, your motion will fail. I don't see the courts imposing sanctions, but it very well could. Now then, if you've hammered the affidavit with discovery, you may have something.
  10. 1) From what you described, it sounds as though ARS is not a JDB, but I'm not aware of how they operate, so take that as you will. 2) Citibank sued me, but don't worry. You're thinking about this stuff now. I was totally unprepared when they sued me, and I won. And things are going to get much more difficult over the next few months for Citi when it sues people.
  11. And that's basically my story - that any alleged agreement between us evaporated the moment they dismissed with prejudice. The agreement is flat out not enforceable and does not apply to me, and if they don't believe me, I'll sign a waiver agreeing not to use SOL as an affirmative defense and only use Res Judicata whilest they sue me again in state court.
  12. No, but they dismissed, then they tried to continue the love affair with me when they sent me back to a brand spankin' new collection agency. I managed to talk the CA into never contacting me again on the phone. No C&Ds, no validations, just plain bullying the debt collectors in such a way that they were actually scared of me. I'm debt free and would not ever do business with any such entity after seeing how they treat people.
  13. It bars the US District Courts from directly reviewing state court decisions. I've already argued against, and won, when they tried to claim that my claims were compulsory counter-claims, i.e. they wanted to make it about the validity of the underlying alleged debt from the previous case and, well, technically, and legally, they're wrong about that. In my state, you don't get to dismiss your case with prejudice unless you ask the opposing party if the motion is opposed first, so in that sense, it was mutual, but because my RCP mandate it. Going back to the compulsory counter-claims issue, this doctrine will not hold for them. I just got caught a bit off guard by the whole arbitration thing. However, I think you're right about the idea that under normal circumstances, they would be allowed to compel arbitration. This isn't under normal circumstances though. I may lose, but I don't do frivolous. I'm dealing with a debt collection law firm and the bank that hired them.
  14. LOLOL, I'm sorry for laughing, but one of the defendants is using rooker-feldman as an affirmative defense. The irony of that working would be delicious! (But I don't think it would work.)
  15. I don't know yet. I have a copy of the motion as we have to ask if it is being opposed before filing it, and that's how they asked was by sending me a copy asking if I opposed it. The motion and brief reference a card holder agreement from 2003. I should get it tomorrow or the next day. Given the date, it might be NAF. But don't worry, should I lose, I'm going to make sure (if applicable) that my preference is JAMS looong before any judge makes any ruling.
  16. (Yes BV80, we're in federal.) Nope. No discovery. When strictly ignoring what happened previously, I do not think that they have advanced far enough to have waived arbitration. I haven't been through the case law included in the brief yet, but they included quite a bit from my circuit stating as much, at least from what I've seen thus far. Now then, not ignoring what happened previously, I think that they waived the right to arbitration when they dismissed the case against me with prejudice. When they did that, the alleged contract became unenforceable. Sort of a Res Judicata for arbitration clauses. At least, that's my thought. I also have some evidence, which they have not yet seen, that I am going to use to cast doubts on their claims that the agreement that they're supplying applies to me. It's going to cast doubt on their entire host of record keeping practises, in fact.
  17. They sued me, dismissed with prejudice, sent me back to collections, so I sued them and the law firm that sued me, they removed to federal, filed a MTD, I won, and now they're invoking the arbitration clause. The motion has not yet been filed, but I just stated that I will oppose it, so that should hit the court on Monday. They're invoking the FAA and bringing plenty of case law to back it up. I'll be providing positive evidence that they cannot prove that the cardholder agreement applies to me and be arguing that their previous dismissal with prejudice is more than enough to infer that any contract between the bank and I is null and void and they waived their right to compel arbitration. (And yes, it is a CC)
  18. This is quite the reversal. I sued the bank, the the bank has already filed another motion with the court, I won that motion, and now they pulled the arbitration card on me. I'm pretty sure I can beat this for several other reasons, but I want to have all bases covered. First they agreed to have it removed to federal, then they already forced me to respond to a different motion with a lengthy response and got smacked down pretty hard, so they've already litigated the case.
  19. She has two witnesses. While I didn't watch her open the envelope, my dad did. She then immediately called me and started asking me what the hell they were doing. She has kept better records on this than most people. The dispute is over the top rude and already sent CMRRR.
  20. It gets even better. She never received a billing statement for the Jan billing cycle. Until day before yesterday. They sent it 3 months late, or the mail lost it. Chase owes her money.
  21. They're claiming that the charge was in Jan, though it did not show up on the previous statements that arrived post Jan. The dispute is going to be just about as rude and nasty as I can make it without dropping a lot of F-Bombs. I'll even be telling them that they need to compensate her for the cost of sending it CMRRR just to be an a$$ about it. It won't happen, but I enjoy being an a$$ to any megabank anytime I have an opportunity to do so.
  22. Mom would suck in court pro se. But seriously, with the late fees and usurious interest charged (27%), that $36 would be a whole lot in a year if this is not stomped on immediatly.
  23. It's hasn't even gotten started yet. The AG here will go after dirty financial practices. He's the one who initiated the requirement that CAs collecting past SOL debts must make it clear to alleged debtors, or else. I can also name the two consumer law firms are in town. Treinen Law and Feferman & Warren. Either one is good to have on your side. My entire clan will be experts in taking on collection agencies if things keep up the way they are. Don't mess with the clan.
  24. I have no good advice for you Seadragon, at least regarding how to handle the finances and business end of this stuff. I did not know your mother, so I cannot mourn her, but you can. Keep your family close. If an opportunity for a joke that will make your family laugh, take it. Remember your mother fondly, even with the faults that every single one of us humans has. You'll cry, you'll feel like you have a hole in the middle of your body knowing that you'll never see her again, but, if there is a happy memory of her that you will make you and your family laugh, bring it up. Enjoy her memory as much as you can, for as long as you can. Death is not nice, but you are among the living.
  25. The charge is for $36 and the charge is listed as a payment to the CA. The account balance was $0 last month, on a closed account. Now, there's a $36 charge to a CA on there. It's really f'ed up. That's why I'm recommending that she go to the AG's office and file criminal charges. She hates the banks about half as much as I do, which means that she'd like to see them annihilated with CEOs put in jail. And yes, big banks are big trouble. And that's being more than generous to them. Calling them "trouble" is being about as nice to them as giving a kidney to a stranger would be.
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