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Brotherskeeper last won the day on June 6

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  1. @Jackie1989 When is this due? I'm not able to dive in to your case details today. (I am not a lawyer.) I would suggest you refute/rebut every material fact that presents a genuine issue in your response in opposition to their motion for summary judgment. If they've failed to meet their burden with competent evidence on any required element of their cause of action, point that out and where their evidence is missing.
  2. "The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay. If a statement is being used to prove something other than the truth of what the statement asserts, it is not hearsay and will not be prohibited by this rule. A quintessential example appears in the Malaysian case, Subramaniam v Public Prosecutor. The defendant-declarant testified that terrorists told him he would be killed if he refused to carry ammunition. On appeal, this statement was held not hearsay because it was being used to prove defendant's duress defense - that he reasonably believed he would be killed if he did not comply with the terrorists. The statement was not being used to show that the terrorists were in fact going to kill him if he did not comply (which would qualify as hearsay)." The debt buyer's affiant states in her affidavit that the account records transferred in the sale of accounts indicates a balance of $1253.27 due on the account of Jackie1989, versus Jackie1989 owes $1253.27. public record noun Legal Definition of public record : a record required by law to be made and kept: a : a record made by a public officer or a government agency in the course of the performance of a duty b : a record filed in a public office NOTE: Public records are subject to inspection, examination, and copying by any member of the public.
  3. @BitsyM Here is the relevant 15 USC 1692g text: § 809.  Validation of debts "(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (b) Disputed debts If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor." (IANAL) My suggestions are to include "Sent via USPS Certified Mail, Return Receipt Requested #______________" either under the RE: Bureaus Investment Group Portfolio NO 115 LLC Account#: 123465 or under your signature. If you've picked up an extra green card from the post office (good to have extras for just this reason) type in the CMRRR number or write the number in by hand. Make a copy for your records of the signed letter exactly as it appears when you sealed in the envelope. I think your letter is too wordy. "I received your letter on XXXX, XX, 2019. (Make certain this date is within 30 days of the date of this dispute letter.) I dispute the above referenced account and request verification per the FDCPA and MCL 339.918(2). All correspondence should be sent to the above address. (Not necessary unless they have the incorrect address for you.) Sincerely, BitsyM
  4. @MJGmuks I don't know if this applies to your court or not. 9. PROCEEDINGS STRICKEN/CANCELED
  5. @Jackie1989 Connecticut Code of Evidence Sec. 8-2 ARTICLE VIII—HEARSAY
  6. @BitsyM FYI
  7. It also helps refine our nascent skills to craft persuasive argument.
  8. If this JDB's collection agency complies with Michigan's debt verification requirements, perhaps BitsyM will receive copies of monthly account statements from the 2012-2014 period showing any charges or payments, before she has to make a decision on using arb. If they don't provide the number and amount of previously made payments in their verification response, she's at least racked up a Michigan violation. (IANAL)
  9. If you include the MCL 339.918(2) requirement, you may get a better idea of how much account info this JDB has. If they don't provide the above information, they haven't verified the debt under Michigan law. (IANAL)
  10. Okay, thank you. I stand corrected. I think I confused this with a card with the small claims exception to arb. Sorry. So, if BitsyM can't argue that the 2012 Capital One backed Neiman's agreement with the arb clause in it (as posted above) is the applicable agreement, then arb is off of the table?
  11. Good. You have no recollection of receiving any changes to the contract that would preclude arbitration. If you don't mind my asking, what state were you living in when the Neiman's account was opened? Where were you living when the last payment was made? Looking to see if another state's statute of limitations might have expired before Michigan became your legal domicile.
  12. @BitsyM Here are some interesting snippets from the agreement you posted. Do you recall getting any advance notice for a change of terms in the Neiman's account agreement? "CHANGE OF TERMS We may change this Agreement as allowed by applicable law. This may include changing, adding, or removing terms. We may do this in response to the legal, business, competitive environment or other reasons not listed here. We may increase the Interest rate on existing balances in limited circumstances. Changes to some terms may require at least 45 days advance notice, and we will tell you in the notice if you have the right to reject a change. We cannot change certain terms during the first year of your Account." [snip] "APPLICABLE LAWS This Agreement is governed by the Commonwealth of Virginia law and federal law. We make our credit decisions and extend credit to you under this Agreement from the Commonwealth of Virginia. This Agreement is: • entered into in the Commonwealth of Virginia; and • maintained in the Commonwealth of Virginia. This is true whether or not you use your card in the Commonwealth of Virginia." If the arbitrator uses Virginia law § 8.01-246. Personal actions based on contracts. "2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not; [snip] 4. In actions upon any unwritten contract, express or implied, within three years." "Claims Unless you have exercised your right to opt out of this arbitration provision, as set forth in the paragraph below captioned “Opt Out of Arbitration,” this arbitration provision shall apply to any Claim (defined below) by or against us, or you or any other Covered Person (defined below). You agree any claim, dispute, or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether preexisting, present or future), including initial claims, counterclaims, cross-claims and third party claims, arising from or relating to (a) this Agreement, the application, your Account, any debt cancellation or debt suspension product, any fraud prevention, identity protection or other account enhancement products, any transaction or activity involving any payment or failure to make payment on your Account, or any solicitation, advertisement, promotion, or oral or written statements related to this Agreement or your Account or any of the foregoing, or (b) the relationships which result from this Agreement and your relationship with any Covered Person in connection with the matters set forth in subsection (a) of this paragraph (any of the foregoing a “Claim”), shall be resolved, upon the election of you, us, or any other Covered Person described below, by binding arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator (the “Administrator”) selected at the time the Claim is filed or received by a party to the Claim. However, “Claim” does not include any dispute or controversy about the validity, enforceability, coverage or scope of this arbitration provision or any part thereof (including, without limitation, the paragraph below captioned “Parties to Arbitration and Class Action Waiver” and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide." @fisthardcheese @Harry Seaward If the OP were to assert in a MTC that the posted 2012 Neiman's agreement, as a whole (with the arb clause), was the valid contract while the account was still in good standing, and the JDB argued that the 2012 contract as a whole was not the valid or enforceable one, could this be argued as a dispute for the arbitrator to decide?
  13. @BitsyM One down, and more to go! I believe sending a written notice of dispute within 30 days of receipt to the collection agency is smart because it preserves your rights. As a Michigan resident, you're entitled by law (MCL 339.918(2)) to receive the number and amount of previous payments made as a part of the verification response. I don't believe that it's necessary to include any language about arbitration "election" in the notice to the collection agency. @fisthardcheese has recommended filing an arb demand pre-emptively if a JDB is poised to file a lawsuit on a credit card with an arb provision***with a small claims court exception. Read his pinned thread on arbitration. 339.918 Communication with consumer; notice; effect of disputing validity of debt; verification of debt; failure to dispute validity of debt. (2) If the consumer notifies the collection agency in writing, within 30 days after receiving the written notice, that the debt, or any portion of the debt, is disputed, collection of the debt or any disputed portion of the debt shall cease until the collection agency obtains verification of the debt and a copy of the verification or judgment is mailed to the consumer by the collection agency. Verification of the debt or any disputed portion of the debt shall include the number and amount of previously made payments and the name and address of the orginal creditor, if different from the current creditor, or a copy of the judgment against the debtor.
  14. For a $2500-plus change debt, a defendant who appeared poised to win a MTC, and arb fees, it wasn't worth it. Still, I'd have expected them to offer a dismissal without prejudice to a pro se. They probably respected you enough to think a dismissal without prejudice would be rejected by you, and they'd have to argue at the hearing.
  15. Fantastic news on not tossing your cookies and getting the dismissal with prejudice!!!