MisterLoon

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MisterLoon last won the day on October 12 2017

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  1. I probably should have posted this earlier but I'd forgotten about it: Anyone dealing with Midland needs to download the consent decree they signed with the CFPB and also with some states AG's. Some people have been having success getting Midland tossed because their cases have been found in violation of the consent decree.
  2. Feel free to PM me. I'll be happy to help if I can. (Pretty much everybody on this board would say the exact same thing in my experience.)
  3. I would seriously consider arb. At the very least, you should get a copy of the agreement and post what it says so that we have some reasonable basis to consider pros and cons. This may sound like a dumb thing to say given the nature of this board, but Midland is my favorite JDB. They tend to be a tough fight, but fair and practical. I'm not familiar with the law firm they're using, but another guy on this board two or three years back took them to arb and they dropped it. Something to consider. I get seriously discouraged providing my experiences--there are things I simply can't say or do for people because I'm not a lawyer and I don't practice law for anyone except myself. My last case was very stressful for me--I spent the whole time in over my head, so to speak, and I spent day and night trying to keep up and cover my butt. And I never say I won because I didn't. They quit and that's the truth. By the time we were done with the multiple MSJ and MTD attempts, it was obvious that there was not only going to be a trial but it was going to be messy. If it had gone to trial, I honestly have to admit I'd have probably lost. That said, I don't see that you have anything to work with but standing. Standing works but it's not like you can just go say, "Hey, they don't have standing" and expect the judge to nod and agree with you. Essentially, here's how my experience went: I answered, they moved for MSJ. Immediately, I moved to strike any evidence they tried to introduce. (Again, I had an experienced attorney guide me on this.) At the same time, I attacked their standing. They tried to introduce (as they did in all my cases) an affidavit and eventually a spreadsheet/bill of sale/forward flow--whatever you want to call it. This is where the motion to strike had to be combined with precedents because, properly argued by the precedents, WA law requires the assignment to be in writing. If it's not in writing, they have to bring in an authorized from the bank to testify in trial. The bill of sale is not an assignment in writing. My concern is that it's a doable but not easy process and, in effect, mimics the arb strategy in driving up costs BUT--and this is the big difference--they can plow ahead if they choose and stick the costs in the judgment if you lose. Consumer arb precludes that as I understand it. I notice in the complaint that they refer to an "agreement" but not a written agreement. They're intentionally trying to avoid the written agreement and I don't know why--it has no effect on SOL so I suspect they're trying to avoid the arb provision. That's another reason to consider it. Go to Google scholar, click WA courts, and read cases: Search under Discover, Citibank, MRC receivables, Sunde, Zion, Ray, Bridges, the case posted above--you should pick up pretty quickly exactly what they need to provide and by implication how to counter it. BTW, the lawyers are no doubt trying to figure out what you're up to. Most people don't answer, easy default. A few people answer, usually in a poor or irrelevant manner ie. "Lost my job", but you've done something unpredictable and unusual. Now they're a little off-balance and truly have no idea what you're up to (although I should warn that "they" monitor this board). I'll try to keep monitoring the board for awhile and post if I can think of anything else. Good luck.
  4. I suspect the OP has already answered based on the dates of the posts. We may have revived an old thread. I wasn't familiar with the Unifund v. Elyse case, but there really isn't anything new there--it's the same stuff applied to a specific situation. There are a couple of interesting things to note though. First, this wasn't a pro se effort--they had a lot of legal help, at least on appeal. Second, the appellate court neatly sidestepped any questions regarding Unifund introducing evidence. Third--and this barely scratches the surface--don't assume SOL is 6 years. In this case, if the defendant had played their hand correctly, they probably could have gotten it tossed right out of the gate as past the SOL--if argued correctly. Fourth, if there was any case that cried out for a properly constructed and argued lack of standing defense, this was it. The most valuable learning experience I had was to go over cases at the court house, both my county and other counties, and find what worked. Then study the precedential cases in the appellate system. It was always eye-opening how many cases that were answered/contested still lost because people would argue the wrong things while they didn't see--and therefore didn't argue--substantive defenses and defects that would probably get the case dismissed. The court generally will only rule based on what's argued. The court's reasoning in this Unifund v. Elyse was consistent with Washington precedents.
  5. Yes, any objection based on the validity of the assignment does the trick. As I previously posted, I always just answered with (1) Plaintiff is not the real party in interest and (2) failure to state a claim for which relief can be granted. (Others have done it differently but as long as the court understands you're objecting to the validity of the assignment (ie. their standing before the court.) The difference is this: With the assumption, the JDB can just say: "We bought the debt." Without the assumption, at the very least the JDB will have to get the original creditor to say: "We sold the debt to the JDB." In the immediate post-financial crisis world, this tended to work well for a lot of people because debts were sold multiple times and the chain was hard to put back together, and a lot of original creditors were washing their hands of the debts when they sold them--they simply wanted nothing to do with it once they sold, so JDB's couldn't get the banks to support their claims. Since that time, the OCC has put new restrictions on national banks so that debts can only be sold once and the banks are required to provide the support to collect the claims. In view of those changes, JDB's are having more success collecting and the challenge to standing can just come back to haunt you because if you lose, those costs are tacked onto the judgment and you get to pay them. That's not to say it might not work, but the odds are longer and you have to balance those odds against running up a few hundred in additional costs on a judgment. And there are other problems--for instance, I hired a skilled trial lawyer to write the Motions to Strike because I simply couldn't master the evidentiary rules fast enough to do it myself. (As an aside to WA residents--you can hire a lawyer for limited help without retaining them for full representation. For me, it was money well spent and I think it amused the lawyer. You may even be able to find some pro bono help.) The point is: Even if you challenge their standing, you still have to knock out any evidence they try to introduce. The end result you're looking for is to leave them with no standing, no evidence, and no way to introduce either. (That's also why OC's are such a bear to try and beat--they have standing and little or no problem introducing evidence.) As time has gone on, more people are showing up here in circumstances that are going to be tough to overcome. Sometimes they could be overcome by a skilled lawyer, or maybe even by someone with more experience, but it is really, really difficult to learn enough quickly enough to overcome a properly documented lawsuit. If I were sued now as opposed to a few years back--and depending on the circumstances--I would probably go a different route. For instance, I never cared for the "take 'em to arb" strategy but I would have to say that in the present day environment, it looks more attractive than the alternatives. Also, I think it could be refined to Washington law. For example, if I were sued today and couldn't make the situation any worse, I might--just thinking out loud and I'm not a lawyer--I might just answer with a copy of the agreement and a motion to dismiss for lack of subject matter jurisdiction under court rule (whatever--don't know the number off the top of my head.). Maybe have a motion to compel arb as back up, but swing for the fences. Who knows? I do know that some of the stuff that worked well in the past ain't working so hot now.
  6. Gather round, it's story time. Many years ago, I had the fascinating misfortune of getting to know a con man. I was working in a legit phone center, and he had just gotten out of prison and started working there, too. But, he informed me, he would only be there until the print shop finished his order so he could get some money to start another illegal phone operation. This guy was handsome, a sharp dresser, great personality--and a total psychopath. The scam was this: He had cards, receipts, etc. printed up with ABC Collections or some such. Then he would go door-to-door in poorer neighborhoods, knock doors, and say "I'm here for ABC Collections." And most people would say something like, "Are you here about the credit card, or cable, or phone?" Whatever they replied, he'd engage them and then offer them a great deal. He'd take whatever they had to "settle" the account. He'd wipe them out and leave them with a worthless receipt with an illegible signature for a nonexistent company. When someone you don't know calls you, you don't know who you're speaking with or what's truly going on. Unfortunately, with the Equifax hack, there is a lot of mischief people can get into based on the information taken. Clever people will find ways to manipulate that into scams. Some people like to manipulate TCPA claims, but my advice is always the same: Don't talk to people you don't know on the phone. Don't even answer; that's why God invented voicemail. If it's legit, they can and will send it in writing. As a matter of personal policy, I don't engage anyone on the phone if they've initiated the call. At the very least, I find out who they claim to be and say I'll call them back. I look up the number; I never redial. There are so many scammers out there you literally can't be too careful. And, frankly, whoever this was did what they do best: Got in your head. Your imagination starts running wild--what did I forget to pay? They'll take me to court and all this bad stuff will happen. . . In reality, absolutely nothings happened except you talked to some idiots on the phone. My advice: Don't talk to idiots--it's a voluntary act. There's nothing you really need to do now. You don't need to look up anything, you don't even need to worry about it. If you really do get sued, find an NACA attorney for a consult right away. You shouldn't have any problem getting help if you get sued for something you already. Seriously, be in charge of your phone. (PS. My kids think I'm rude because I'm so quick to slam a door or hang up a phone, but in order for a scam to work, the scammer has to first engage you. I simply don't engage.)
  7. There's a lot of lessons buried in this thread, but let's see if I have this figured out roughly correctly: You disputed an account on your credit report, promptly got sued by an original creditor for something that is apparently within SOL, admitted to an account with the OC in your answer and counterclaimed under a completely inapplicable Act, and now are looking for a way to "win". Did I get that about right? Let's start here: trying to do a credit report clean up with defaulted debt within the statute of limitations. Such an attempt frequently suggests to a creditor that someone's thinking about buying a house, they must have a down payment saved up, and now would be a perfect time to file that lawsuit. Now, as I understand it, charges should be disputed under the Fair Credit Billing Act. This dispute: Did you make your dispute at the time of the billing for the charges and document your steps to resolve the issue? Or was this just something you whipped up in the hope of cleaning up your credit report? If you have a documented dispute, that can stop a motion for summary judgment in it's tracks. If you "disputed" under the FDCPA in an attempt to clean up your credit, well, that's probably not going to work out so well. I've sat at the courthouse and watched defendant after defendant go "Well, your Honor, I lost my job. . ." Now the judge may be hardcore anti-pro se, pro debt collector, or totally pro-consumer, outrageously sympathetic and secretly cheering the pro se on. It doesn't make one bit of difference because "I lost my job" is not a legal defense and the result is going the same way under either type of judge. What Credit Karma and/or your credit report says doesn't matter one iota. It's irrelevant, without foundation, hearsay--in the case of Credit Karma, it's hearsay about hearsay. Even if you have a completely sympathetic judge, it's an argument that's going absolutely no where. You have to focus exclusively on the evidence CO presents--and, unlike a JDB with standing issues--their evidence is probably going to stick unless you have a legitimate legal strategy to counter. Arbitration strategy could possibly work, certainly SOL if that's legitimate, arguing under Virginia law is possible (I've done it in my state, but I had to follow court rules regarding apprising the court of intent to use laws of a different jurisdiction) (you'll have to figure out NV law or use it in arb), certainly if it's identity theft and you're willing to swear under penalty of perjury to same (and if it isn't, I wouldn't perjure myself--going to jail over a credit card debt is just dumb), these might work. But the bottom line is probably this: I don't see anything legitimate or promising to work with here. Cap 1 was always one of the better record keepers among the major creditors before the crisis, and they're probably even better now. The aggressively pursue in the courts, they usually have the evidence they need, and don't miss very often. Good luck.
  8. I must say I concur with Goody_Ouchless. Things have changed a lot as the mess from the financial crisis worked through the system. For example, debts were sold multiple times without supporting documentation, and certain OC's and debt buyers came up with--shall we say--creative ways to deal with those problems. And the courts were overwhelmed. Now, after the OCC stepped in, national banking associations are only allowed to sell receivables for which they have documentation, and only to buyers that agree to abide by OCC guidelines for handling purchased debt. Among those guidelines is this: No further sale--collect it, keep it, or return it, but it can't be passed around forever. Agreements were rewritten to reflect new and emerging realities. For example, some agreements were rewritten to eliminate the use of "borrowing statutes", fresh restrictions on arb, etc. The courts have provided precedential rulings (at least in my state) that make it clear what's going to be required to get a judgment. Add all the factors together and if somebody shows up on the board for help with a recently defaulted credit card, the most realistic response is: "Do you want fries and a coke with your judgment?"
  9. I'm not an attorney. I don't want to be an attorney. I don't do legal advice. BUT I can share my experience. I had several court cases--every one of them took 3+ years. It really isn't hard to slow things down if you're just playing for time. In my experience (WA Superior Court), the court doesn't set a timeline--it simply responds to the parties. Typically, my cases went something like this: I'd be served and put in a notice of appearance. Eventually the plaintiff would move for default judgment. I'd answer which would squash the default. They'd come back with an MSJ. I'd motion to strike the evidence and motion in opposition to MSJ. They'd cancel the motion hearing. (BTW, I regret I didn't catch on sooner--I should have filed a motion to dismiss at the same time.) Anyway, the motion to opposition would give them a roadmap of defects to try to correct, so they'd try to fix them and come back with a second MSJ. Rinse and repeat. Eventually, some one blinks or you're moved to trial after an unsuccessful MSJ or Motion to Dismiss. I never did discovery with a JDB because I truly didn't care what they had: I always played it as standing and keeping out any evidence they try to introduce. One case was an OC. That was a lot stickier and scarred me for life which is why I never wanted to talk about it. They had everything, including the resources to really come after me. One of the reasons I tend to be somewhat cryptic is that it's disconcerting to write a Motion to Strike when all your board posts are printed out and introduced as evidence. But--let's say you have BIG Bank, NA suing you. All of the sudden all these documents for BIG Bank Servicing, LLC show up. "Oh, that's just who does the servicing, Your Honor." Most people are rolled there. I'm more Motion to Strike, needs foundation, and I'll need a continuance to conduct discovery on the relationship between BIG Bank, NA and BIG Bank Servicing, LLC, Your Honor. Turns out there are curious similarities between banks and servicers, kind of like banks and JDBs. Now, you can really PO a judge with this kind of stuff, but if you've got your legal ducks in a row, so to speak, AND you can figure out how to work within the court system, do your legal research, and make your case, you can at least put up a decent battle--even if you lose. For the curious: We did a walkaway, dismissal with prejudice, each side bearing their own costs. I don't think of it as a win at all. It was idiotic to get into a multi year battle over that amount (5K or so) and it would have been way more cost effective to just settle up front. The rabbit hole just kept getting deeper and deeper, and by the time it was ready to go to trial, there were so many looming questions I dredged up to fight the MSJs it looked like it would be a long and expensive trial. They offered to let it go and I took them up on it. The point to this long and rambling reply: Had I chosen arbitration, it probably would not have taken anywhere close to as long as the court process--and remember, this never actually got to trial. It took over 3 years to get to the point of scheduling a trial. You never know how long stuff will take, but I do know that an unopposed default judgment goes quicker than a good fight.
  10. I'm in Washington. All my experience was in Superior court. Let's talk about the Notice of Appearance for a minute. When you "appear", no action can be taken by the court without you being notified. Once notified, you can figure out how to respond. The first time I was sued--this is seven years ago now--I just put in my Notice of Appearance. Several months later, I was notified they moved for a default judgment--that's when I finally answered, effectively killing the motion for default judgment. (They, of course, just file a motion for summary judgment--and the fight was on.) In retrospect, I should probably have moved for dismissal right away because they didn't have the documentation and may not have been able to get it on time. At that time, everything was a mess and the court was overwhelmed. Times are different now--the banks and the players like Midland were put under a lot of scrutiny. Now they're just flat better prepared than in the past. Also, precedential cases have ironed out a lot of the confusion surrounding how to prosecute and defend. The older information on this board may have been great then, and will get you a judgment in no time now. shellieh98 is right. You'll need to review the WA arb act, I think it's RCW 7.04 or something like that. You don't want court arb, you want private contractual arb. Make sure you read and understand exactly what the terms and conditions contain--as I understand the strategy, it's about driving costs that they have to bear--but that depends on what the t&cs. One of the things that I've thought about is this: Washington has an Unfair Business Practices Act that is broad. Several violations of the WA Debt Collection Practices Act are considered de facto violations. If I had ever wanted to go arb, I thought it would be possible to hit back hard on any opposition to arb from them as a violation of the Unfair Business Practices Act. That would open a world of possibilities--and maybe wallets. That's also why I suggested to another poster last night--that had already notified that they wanted arb--that they check with an attorney. They may already have a case. My fundamental problem (among more than one) with arb is this: If you go that route, you, in my opinion, give them standing. Some on this board have disagreed with my interpretation. I've also seen cases where it went to arb, then back to court where the costs were imposed on the defendant that pushed for arb. T&Cs are everything. Good luck.
  11. Are you dealing with an Original Creditor or a junk debt buyer? Suttell is acting as their attorney. You need to go to washingtonlawhelp dot org and read how to answer a debt lawsuit. But, if I were you, I would not answer yet. You've got a very interesting situation, and I'll bet dollars to donuts that Suttell wasn't informed about the previous arb election. I would go to National Association of Consumer Attorneys and call or email a few of the NACA lawyers and concisely explain your situation to see if you could get representation on a contingency basis. Even if you don't have a federal case, you may have a state law case to be made. There's a lawyer in Spokane area you may want to check out, but I can't think of his name off the top of my head. (Don't worry if you're in a different area of the state--it's all done by phone, email, fax and mail anyway.) I'd get on it while I have time. Don't get discouraged if you get some rejection--most consumer lawyers have way more potential clients than they could possibly handle. Systematically check them all--and don't forget to tell your injury attorney and ask if they might refer you to someone. I'd also do as much reading as I could to get ready to go it alone if I had to. Good luck.
  12. For the basics on answering, go to Washington law help (dot) org and read the how to answer a debt lawsuit topic. I have been on this board for long time--much more infrequently since I went SOL and closed out my lawsuits. I know people come here for hope, or advice, or whatever, but I have to be blunt: If you don't answer, they'll get a default judgment. But if you do answer, what is your plan? Are you hoping they'll go away? They probably won't. Are you going to be able to learn enough, fast enough to be able to self-lawyer? What, if any, defenses do you have? Midland knows how this done. They know exactly what they need to get a motion for summary judgment and there's about a 99% chance they'll win if you can't mount some viable defense or strategy to win. What difference does it make if you're hit with a default judgment next week or an MSJ in a month or two (and you'll be hit with those extra costs, to boot)? My basic defense was always standing. But, under WA law, they have a presumption of validity on the assignment and it's not easy to overcome that. It takes some honest-to-god lawyering, and you have to know court rules and how to keep evidence out (and these are complicated motions to write). Realistically, it's a very, very tough assignment for pro se if Midland (or anyone) pursues you with basic evidence in hand. Based on the information you provided, you may want to look at the arbitration strategy. I personally don't like it much and I've seen it backfire on people, but it's also worked well for some people. I can't really provide any advice as I always preferred to stay in court. Make sure you get your Notice of Appearance in on time. Good luck.
  13. No, I did not make copies of anything because I chose not to pursue that route. There were a surprising number of cases given the relatively small size of the county and the impression I'd always gotten from the board that JDB's never go to arb. Admittedly, I don't remember seeing many cases involving small amounts--5k was pretty much the low end. As I recall, the court would generally just confirm the arbitration and add attorney costs while the matter of the cost of arbitration was part of the agreement, but there were cases where quite a bit of discretion was exercised and apparently built into the arb act here. And it's hard to say if any of the cases I reviewed would have stood up in appeal. Most cases simply aren't appealed. At the end of the day, all I could do was research as best I could and make the best informed decision for myself that I could, bearing in mind the agreements I would have to deal with, how costs might be assigned, how local judges have a history of viewing things, and so forth. For me, all things considered, I didn't want arb. But my cases were all much larger than this case, I had assets waiting to be grabbed , and I was pretty sure that I wasn't going to easily deter anyone because of the cost of arb. My intent isn't to necessarily dissuade anyone, but one needs to be aware of what they may be getting into. Any strategy based on running costs can come back to bite you here in Washington. Basically, I see everyone saying: Elect arb--they won't pursue it 'cause it costs too much. But you should be aware that they may pursue it and those costs boomerang back on you. And for whatever reason, sometimes people draw the Ziggy straw like that guy in Florida that got into it with Cap 1 over a $600 claim and ended up getting stuck with $102K in Cap1 legal costs.
  14. General reply--all points granted. I don't like the arb strategy in Washington state. Unlike some states where going to arb can get you a dismissal of the court action, here the court action remains open and the court has discretion, pursuant to the arb act, to modify, assign costs, and so on. And yes, much of the time, electing arb will somehow or another make it go away--but not always. And when a case goes bad. . . Just want to make sure the OP knows that there are risks involved. Ittledo, the one thing I know nothing about is how to settle. I fought everything. But--one thing to bear in mind is this: Washington is a pocket docket state. That means the court action is usually initiated by service. Does the summons have a case number? Did you check the docket to see if the case has been filed yet? Usually--and bear in mind I haven't been following this closely for the last two-three years--a JDB will forward a bunch of cases to an attorney and they'll serve 'em. Then they wait to see who pays up and only file (and pay the filing fee) for the ones they haven't heard from or the ones that answered. In practical terms, that means that the ones that pay or work out a settlement never have a court case and judgment that shows up on the public record--and therefore it doesn't show up on a credit report either. If they file (whether you answer or not), they frequently insist on a stipulated judgment to settle, and that does show up eventually on your credit report. So when you're settling, you'll have to decide how much all that is worth to you and plan your settlement strategy accordingly.
  15. Let me go into Arb in Washington a bit, and why I don't like it as a strategy although I have to admit some people that have come through this board have had success with it. The first problem I have with it is philosophical--how can I invoke an agreement I don't acknowledge having made in the first place? You can't invoke an agreement without also acknowledging you've entered into that agreement. Starting behind the eight ball. But, that aside, the entire strategy basically hinges on running costs and assuming that it won't be cost effective for the JDB or OC to pursue it. Admittedly, that sometimes works, but I've spent hours studying cases at the court house. Let me explain how it can go really, really bad in a hurry using this $1300 case as an example. Motion court to compel arb. Court compels arb. Now Midland has a problem. It's expensive to arbitrate, but they're under court order. For whatever reason, they don't pull or settle at this point--they go ahead with the arb. If you read and study how RCW 7.04 (I think it's 7.04) WA arb is written and applied, the court case isn't dismissed--the arb goes forward and the results are brought back to the court to be certified, modified, amended, etc. So, your $1300 case goes to arb, Midland spends $6000 on arb, you lose, it goes back to court and Midland petitions for certification of $1300, and asks for costs of $6000 and attorney fees of $2400, and suddenly you're staring at a judgment of around $10K with statutory interest at 12%. If you go to the courthouse and study cases, this happens more than you'd realize--probably because none of the people come to the board to explain how they screwed up so badly. There is simply no panacea--either court or arb can go okay or very, very badly. Based on what I've seen, I've never been the huge fan of arb that some people are.