Brotherskeeper

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Brotherskeeper last won the day on January 2

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  1. This 2018 white paper on SOL from the National Consumer Law Center has some excellent information: Shortening the Limitations Period on Credit Card Collection Lawsuits The standard rule is that a limitations period begins to run from the date of default. How this applies to a credit card transaction is not always clear. If the claim is based on an account stated, the limitations period should run from the last transaction listed on the account stated. See id. § 3.6.7.2. When the claim is based on a breach of contract, state law or the credit card agreement may have language related to when the card account is in default. If the card agreement states default is based on a failure to make a minimum payment, then the limitations period should run from that missed payment. Other card agreements provide that upon a missed payment, the card issuer may declare the balance immediately due and payable. Card issuers or debt buyers in that case may claim that the declaration that the balance is due immediately was not made until the collection lawsuit was initiated. Of course, this argument fails if the card issuer did in fact demand payment in full at an earlier date. Moreover, the Arizona Supreme Court, confronted with this language in a credit card agreement, has just ruled that the limitations period should run from the first missed payment. See Mertola, L.L.C. v. Santos, 2018 WL 3595915, at ¶ 18 (Ariz. July 27, 2018). The Arizona Supreme Court stated: Determining the Date of the Consumer’s First Missed Payment To determine the date the consumer first missed a payment, start with the collector’s own pleadings and any attached documents. Even if the collector is claiming a later date of default, its own pleadings, affidavits, and other documents may indicate an earlier date of default. Never underestimate the sloppiness of debt buyer documentation. The date on which a consumer stopped payments on a credit card account can also be inferred from the charge-off date, if the collector provides that date in any of its documents—something collectors do surprisingly often. The charge-off date, under federal standards, is 180 days after the account becomes delinquent. Thus, a reasonable assumption of a delinquency date is 180 days before the charge-off date. Another approach is to look at the consumer’s credit report to determine the last payment on the account reflected in the report. Do not confuse the charge-off date, which may be indicated there as well, with the date when the consumer stopped paying. Be alert to certain collectors seeking to “re-age” a debt by reporting an incorrect date of first delinquency, which is a potential violation of the FCRA (albeit without a federal private right of action unless first disputed with the credit reporting agency), as well as the Fair Debt Collection Practices Act. See generally NCLC’s Collection Actions § 3.6.7.3 on proving the date of default.
  2. Brotherskeeper

    1st letter from hunt and henriques...what do I do?

    @Tiredofharassment and @nobk4me This recent case has some very helpful info: Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958 [214 Cal.Rptr.3d 419].
  3. @MikeB35 Your agreement appears to be D821 / M-110497 from the database @bureabe linked to earlier. There are so many Platinum Visa cards with different APR rates and membership fees, but the arbitration sections look to be the same. D821 / M-110497 Platinum Visa® 17.90% Variable Monthly APR (WSJ Prime + 14.65%) $35, Annual Membership Fee $5.00 or 8% Cash Advance Fee (whichever is greater)
  4. I would check the arb clause in the contract you're planning to use. Does it require you to notify (now) the assignee of (instead of) Credit One Bank in writing? I would work on the answer, the affirmative defense, the affidavit and post the draft here first. If you have time to put together a solid MTC in time, then you can submit it at the same time. Didn't you say you have the same judge that ruled against you in a previous case?
  5. There are no stupid questions! In fact, that's an excellent question. IANAL. Failure to file an affidavit, or to file a valid affidavit, does not negate their allegations or doom the lawsuit. This statute eases the burden of proof on the plaintiff. Otherwise, plaintiff has to prove its case with more competent evidence. If you file a valid affidavit, and they haven't, you get the presumption of the denial and the burden shifts back to them to provide evidence to the contrary.
  6. Their lack of documents doesn't hurt you. BTW--an attorney's signature on the summons and complaint means that attorney vouches that the plaintiff's claims have enough merit to file suit. You need to get your game plan together, if you have't started. An answer to the complaint, including an agreement to arbitrate as an affirmative defense, with an affidavit is the best place to start. (IANAL) There is some debate about whether or not to send a brief letter to plaintiff via the attorney indicating that you are electing your right to demand plaintiff arbitrate its claims per the agreement's binding arbitration section. Then you can decide to submit a motion to compel arbitration--either with your answer or filed soon thereafter.
  7. I can't know. Are they just sloppy and failed to attach the affidavit? What they may have in the data file that was transmitted after the sale is anybody's guess. They may have some monthly statements. Since they are suing on an account stated, they don't need the contract; however, under Michigan statute MCL 600.2145, they should've submitted an affidavit. 600.2145 Open account or account stated; proof, counterclaim.
  8. I'm just trying to narrow the possible years an agreement could work for you. It appears the alleged account was opened in 2015 and defaulted upon in early 2016. IANAL. I'm not even certain they've filed enough to get a default judgment. I wonder if they submitted an affidavit after the fact and you haven't yet received it.
  9. (IANAL) IMO This is in your favor because they claim a) there was an agreement between you and ("OC" original creditor) Credit One Bank, b.) you were sent a copy of that agreement, c.) you defaulted on the account according to the terms of that agreement, and d.) they are now the assignee (step into the shoes) of Credit One Bank, with all of its rights and duties of that agreement sent to you. Oh, looky there, one of those agreement rights is arbitration; one of those duties is to arbitrate any dispute if a demand is made. When a Michigan JDB plaintiff does not have a copy handy of the actual OC cardmember agreement, they state that an agreement is in the defendant's possession; the reason is to get around the court rule requirement that a claim (or defense) based on a written instrument (a contract) must be attached to the complaint, or state that the opposing party already has it. RULE 2.113 FORM, CAPTIONING, SIGNING, AND VERIFYING OF DOCUMENTS (C) Exhibits; Written Instruments. (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is ... (b) in the possession of the adverse party and the pleading so states... (2) An exhibit attached or referred to under subrule (F)(1)(a) or (b) is a part of the pleading for all purposes. (D) Adoption by Reference. Statements in a pleading may be adopted by reference only in another part of the same pleading.
  10. What year do you think you may have defaulted? Did plaintiff attach anything at all to the complaint? A dated credit card statement showing the balance? Is this alleged debt on a "Credit One Bank Gas Rewards" card, or some other name brand?
  11. Actually, I just noticed this on bottom left of the first page of the Credit One Gas Rewards you posted: "© 2013 Credit One Bank, N.A. All rights reserved. Credit One®, Credit One Bank® and the Credit One Bank® logo are federally registered trademarks." When was this account opened? When was the first missed payment? How sloppy of them. Does the complaint state that upon information and belief defendant has a copy of the contract in his/her possession?
  12. What help do you need? You haven't posted the motion or given any details.
  13. @bureabe Are you being sued on an account stated cause of action, with an affidavit attached to the complaint? If so, you'll have to submit your own affidavit with your answer.
  14. If the agreement you posted is the correct one for your alleged account (Branded name, APR, fees, etc.) then it has a survivability clause. I don't believe credit card issuers provided 2015 agreements to the CFPB database. The arb section of the agreement works very well for you if you are in district court. "Severability, Survival: This arbitration provision shall survive: (i) termination or changes in the Agreement, the account and the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer or assignment of your account, or any amounts owed on your account, to any other person. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force."
  15. Read her second case--shorter thread. That one she didn't give in and pay a settlement; JDB dismissed rather than go to arb. Did you check to verify which court this is in? And the answer deadline, so you don't "think" you have 13 "or so" days?