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Everything posted by Brotherskeeper

  1. @LaneBlane 2020 Minnesota Statutes 541.31 CONFLICT OF LAWS; LIMITATION PERIODS. §Subdivision 1. General. (a) Except as provided by subdivision 2 and section 541.33, if a claim is substantively based: (1) upon the law of one other state, the limitation period of that state applies; or (2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state applies. (b) The limitation period of this state applies to all other claims. Subd. 2. Action arising out of state; resident plaintiff. If a cause of action arises outside of this state and the action is barred under the applicable statute of limitations of the place where it arose, the action may be maintained in this state if the plaintiff is a resident of this state who has owned the cause of action since it accrued and the cause of action is not barred under the applicable statute of limitations of this state. History: 2004 c 211 s 2 541.32 RULES APPLICABLE TO COMPUTATION OF LIMITATION PERIOD. If the statute of limitations of another state applies to the assertion of a claim in this state, the other state's relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply. History: 2004 c 211 s 3 541.33 UNFAIRNESS. If the court determines that the limitation period of another state applicable under sections 541.31 and 541.32 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this state applies. History: 2004 c 211 s 4
  2. @Phillipemoren @BV80 @WhoCares1000 Rule 67 -- Dismissal of Civil Actions 67.01. Dismissal Without Prejudice and With Prejudice A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party. 67.02. Voluntary Dismissal - Effect of (a) Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime: (1) Prior to the swearing of the jury panel for the voir dire examination, or (2) In cases tried without a jury, prior to the introduction of evidence at the trial. A party who once so dismisses a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only: (1) Upon filing a stipulation to that effect signed by the opposing party, or (2) On order of the court made on motion in which the ground for dismissal shall be set forth. (b) Except as provided in Rule 67.02(a), an action shall not be dismissed at the plaintiff's instance except upon order of the court upon such terms and conditions as the court deems proper. (c) A voluntary dismissal under Rule 67.02(a) shall be without prejudice unless otherwise specfied by the plaintiff. Any other voluntary dismissal shall be without prejudice unless otherwise specified by the court or the parties to the dismissal. (d) If a plaintiff who has once dismissed a civil action in any court commences a civil action based upon or including the same claim against the same defendant, the court may make an order for the payment of any unpaid costs of the civil action previously dismissed. In addition, if the plaintiff dismissed the previous civil action without prejudice within ten days of the date set for trial, the court may make an order for the payment of witness and other expenses, not including attorney fees, incurred by any other party that are caused to be incurred for the second trial because of the dismissal without prejudice of the previous civil action. The court may stay the proceedings in the civil action until the plaintiff has complied with any such order. (June 27, 2006, eff. Jan. 1, 2007.)
  3. I seriously wish Michigan would increase this dollar amount. 445.257 Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs. Sec. 7. (1) A person who suffers injury, loss, or damage, or from whom money was collected by the use of a method, act, or practice in violation of this act may bring an action for damages or other equitable relief. (2) In an action brought pursuant to subsection (1), if the court finds for the petitioner, recovery shall be in the amount of actual damages or $50.00, whichever is greater. If the court finds that the method, act, or practice was a wilful violation, the court may assess a civil fine of not less than 3 times the actual damages, or $150.00, whichever is greater, and shall award reasonable attorney's fees and court costs incurred in connection with the action.
  4. (e) "Creditor" or "principal" means a person that offers or extends credit creating a debt or a person to which a debt is owed or due or asserted to be owed or due. Creditor or principal does not include a person that receives an assignment or transfer or a debt solely for the purpose of facilitating collection of the debt for the assignor or transferor. In those instances, the assignor or transferor of the debt shall continue to be considered the creditor or the principal for purposes of this act. (f) "Person" means an individual, sole proprietorship, partnership, association, corporation, limited liability company, or other legal entity. (g) "Regulated person" means a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency including any of the following: (i) A regular employee who collects accounts for 1 employer if the collection efforts are carried on in the name of the employer. (ii) A state or federally chartered bank that collects its own claim. (iii) A trust company that collects its own claim. (iv) A state or federally chartered savings and loan association that collects its own claim. (v) A state or federally chartered credit union that collects its own claim. (vi) A licensee under the regulatory loan act, 1939 PA 21, MCL 493.1 to 493.24. (vii) A business that is licensed by this state under a regulatory act that regulates collection activity. (viii) An abstract company that is engaged in an escrow business. (ix) A licensed real estate broker or salesperson if the claim the broker or salesperson is collecting is related to or in connection with the broker's or salesperson's real estate business. (x) A public officer or a person that is acting under a court order. (xi) An attorney who is handling a claim or collection on behalf of a client and in the attorney's own name. This is how "communicate" is defined in the Definitions section: (c) "Communicate" means to convey information regarding a debt directly or indirectly to a person through any medium.
  5. @Mumof1 @BV80 REGULATION OF COLLECTION PRACTICES (EXCERPT) Act 70 of 1981 445.252 Prohibited acts. (g) Communicating with a debtor without accurately disclosing the caller's identity or cause expenses to the debtor for a long distance telephone call, telegram, or other charge. (n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary. The People of the State of Michigan enact: Document Type Description Section 445.251 Section Definitions. Section 445.252 Section Prohibited acts. Section 445.253 Section Cease and desist order; hearing; failure to comply with order; action in circuit court; fine. Section 445.254 Section Action to restrain act or practice; injunction and other equitable orders or judgments. Section 445.255 Section Assurance of discontinuance; contents; filing; record; opening closed matter for further proceedings. Section 445.256 Section Wilful violation of act or engaging in recurring course of wilful conduct in violation of act; penalties. Section 445.257 Section Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs. Section 445.258 Section Communications with person other than debtor for purpose of acquiring location information; required statements.
  6. I agree 110% with this sage advice--some of the best ever given on this forum. Many of us here are living proof of it's truth. Thank you @BackFromTheDebt!
  7. @Mumof1 Is this account a charge card or a credit card account? Were you required to pay the entire balance off each month?
  8. Right. I'm not clear what claims @tinyturtle filed against Barclay's in AAA. I'm confused as to what agreement Barclay's breached here. Many months ago, OP posted a clause from the card agreement and stated: "Under their terms they have a right to deny my dispute: "If you are dissatisfied with the goods or services that you have purchased with your credit card, and you have tried in good faith to correct the problem with the merchant, you may have the right not to pay the remaining amount due on the purchase. "
  9. If I'm not mistaken, you are well into your AAA arbitration process. Did the parties and the arbitrator agree that Delaware law only applies? Did you file a formal brief with your claims, as was discussed with @fisthardcheese many months ago? Would you still need to amend your initial AAA claim to include these CA state law violations?
  10. This debt is still with the original creditor and has not been sold to a debt buyer, correct? Were you contacted by a collection agency for this debt? What exactly did you write in your "DV" letters? Did you send any of these letters by USPS certified mail? Did you ever get a written reply to a "DV" letter?
  11. No, it is not allowed on your credit report forever. A creditor reporting to the credit reporting agencies has approximately 7.5 years to report accurate information about a debt. If the creditor has gotten a court judgment against you regarding this debt, this is a different kind of reporting. Just because you fail to pay a legitimately owed debt within 6 years in Michigan, it doesn't mean that the debt goes away. It just means that the creditor would not be able to sue you to collect on the debt and win if you assert the lapsed SOL as a defense against the suit. Because suing on a time-barred debt may be a violation of the Fair Debt Collection Practices Act (FDCPA), creditors need to be very careful that they don't run afoul of this law. The creditor can continue to ask you to repay this debt as long as the creditor follows all of the various laws to do so. You have the right to tell the creditor to stop contacting you under the FDCPA. Here's some information: https://www.consumerfinance.gov/ask-cfpb/how-can-i-stop-debt-collectors-from-contacting-me-en-1405/ I know this is complicated. It's possible to "revive" the SOL by taking action to acknowledge the debt or make a promise to repay the debt, but this promise has to be in a writing signed by you under Michgian law. Merely asking for debt validation of the debt should not revive the SOL. MCL 600.5866 Revival of barred claim; written acknowledgment of obligor. Sec. 5866. Express or implied contracts which have been barred by the running of the period of limitation shall be revived by the acknowledgment or promise of the party to be charged. But no acknowledgment or promise shall be recognized as effective to bar the running of the period of limitations or revive the claim unless the acknowledgment is made by or the promise is contained in some writing signed by the party to be charged by the action.
  12. @Mumof1 You can order free copies of your credit reports (Equifax, Experian and TransUnion) once per year. This US government video explains how: https://www.ftc.gov/faq/consumer-protection/get-my-free-credit-report If a debt is past the statute of limitations for filing suit to collect on it, it doesn't mean the debt goes away. It just means that IF you were sued, you would use the fact that the Michigan 6-year statute of limitations period had passed as what is called an Affirmative Defense to have the lawsuit dismissed.
  13. "Them" refers to the judge? Why wouldn't the judge have the authority to compel arb if the Synchrony arb clause explicitly states s/he is to decide the enforceablitiy of the arbitration agreement? Can you please explain this a bit more? We have had CIC members tell us that some judges, when ruling on a motion to compel, will not compel the JDB plaintiff to arbitration if there's been no refusal or opposition by the plaintiff to arbitrate. Some judges will grant a portion of the motion to continue/stay the case for X number of days so that the defendant can file the arbitration demand in either JAMS or AAA, then report back to the court. In that particular situation, there is no court order to compel that can be submitted along with the arbitration demand claim to the arb forum. Does your Synchrony agreement have these 3 sections? "3. Examples of claims subject to arbitration are disputes about an account transaction, fees, charges or interest, the events leading up to the Agreement (such as any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), an application for or denial of credit, any product or service provided by us or third parties in connection with the Agreement, credit reporting, benefit programs related to your account including any reward program, the collection of amounts due by our assignees, service providers, or agents and the manner of collection. 4. However, we will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered. 5. Only a court will decide disputes about the validity, enforceability, coverage or scope of this Arbitration section or any part thereof. However, any dispute that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator to decide."
  14. What, if anything, did Midland's attorney say during this proceeding?
  15. To be clear: you have not filed with the court a written motion to compel arbitration and stay the case. Was this a discussion with the judge during a court proceeding? Did the judge review the Synchrony agreement's arbitration clause from the bench? Where did a copy of the Synchrony agreement come from?
  16. @FrankinVA Terrific news that they won't arbitrate with you! (Fingers crossed it isn't because they mistakenly thought you had attorney representation. ) I doubt they want to go to arb with you as pro se due to the cost to them. Keep us posted.
  17. @nobk4me Thanks for this new info! Too bad that the new law on the borrowing statute doesn't include breach of contract. It would be great for Ohio defendants in JDB credit card cases to be able to use Delaware and Virginia shorter SOLs. "Changes to Ohio’s “Borrowing Statute The Ohio Borrowing Statute (ORC 2305.03) applies to claims arising from another state where the other state’s statute of limitations has already expired. In that event, Ohio courts will “borrow” the other state’s limitations period to bar the action to prevent forum shopping. SB 13 would narrow the applicability of this statute from all civil actions to only tort actions. A “tort action” is defined by the code as an action seeking damages for injury, death or loss to person or property other than an action for damages for a breach of contract. In addition, two more sections would be added for parties seeking post-default and post charge-off interest in consumer transactions. These additions would reduce claims brought in the state attempting to use a neighboring state’s interest rate if that state’s statute of limitations has run. Importantly, the changes to the borrowing statute would take retroactive effect as of April 7, 2005, the date of passing of the Tort Reform Act."
  18. @Gerardo Did you read Fisthardcheese's pinned thread on arbitration? If not, where did you get the information required to draft your motion to compel arbitration? Did you submit a copy of the agreement/contract that contains the arbitration clause with your motion? Where did you obtain the copy?
  19. @Mistymouse4590 It would be best for you to start your own thread and include your specific information, redacted for privacy. This is the best way for other members to offer any help they can. Does your court have a website with court approved fill-in forms? Have you looked for a legal resource link for pro se defendants that explains how you prepare and file an answer? Do you know the deadline for filing your answer? @Goody_Ouchless are you able to offer any suggestions for Arizona pro se help?
  20. At least they didn't get their fees awarded back. That is one small consolation for the OP. Perhaps it will give them less enthusiasm to go into arb. We'll have to see.
  21. I just heard from another poster, Percyb, who just completed arb in JAMS against PRA. PRA was given the charge-off debt balance amount as an award. They asked for their fees, too, but the arbitrator didn't award them. PRA spent a lot of money.
  22. You really need to read up on your rules of civil procedure for your court. In my state, the court requires that a copy of a motion and all papers attached filed with the court has to be sent to the opposing party. In fact, you have to include a sworn certificate of service that states when and how you sent the copy to the other side's attorney. No it was not. I obtained it from another member on here posts and it is an agreement from 2018 the last year i used the CC. @texasrocker may know if you should also submit an affidavit that attests that the attached copy of the Best Buy agreement is the applicable agreement for the subject account. I really have no way of knowing whether or not PRA in your particular case would go into arb or not. We don't know if this is a new PRA policy or just in certain cases.
  23. (I am not an attorney.) If the Best Buy agreement you've linked to is the correct agreement that applies to the account that is the subject of this lawsuit, then yes, it appears to have a valid arbitration clause. Please take the time to carefully read the entire arbitration section of this agreement--as the very first sentence in "all caps" instructs you to do, on starting on page 11. Are you referring to this "Exhibit A" from Fisthardcheese's sample motion from his pinned arb thread? " 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached)." Did you send this letter to the plaintiff? If not, you would not have it to include as your Exhibit A. (You would have specified AAA as the arb forum, not JAMS, as the agreement dictates.) On page 12 of the arb clause "How arbitration works," it states, "Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgment entered." and " To choose arbitration, a party may file a motion to compel arbitration in a pending matter..." The agreement you posted does not appear to require you to send a letter, although you could have. In Fisthardcheese's sample MTC template (to be modified to your specific facts and state laws) he quotes from a sample agreement's arb clause. You would replace what is quoted here with the exact language used in the Best Buy agreement. Yours may or may not be in all caps. "4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION. (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY. (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT (d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US. (e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT." Please read the Best Buy agreement's section "Paying for arbitration fees" found on page 13. If your AAA arb demand claim is unrelated to debt collection, then PRA will pay your AAA fee; otherwise, arb fees are allocated according to the AAA consumer rules. How/where did you obtain the copy of the Best Buy agreement? Was it provided by PRA? Please be aware that recently a few of our forum members have been surprised to learn that PRA will in fact agree to go all the way in arbitration. The large costs compared to the debt amount have not been a deterrent. We now have a case where even arb-adverse Midland has agreed to arb. Do you have any plausible FDCPA or Texas consumer law violations here? If yes, this may put you in a better position to negotiate a settlement.
  24. @CountryGuy The National Association of Consumer Advocates (NACA) is a "nonprofit association of more than 1,500 attorneys and consumer advocates committed to representing consumers’ interests." Here are lists of NACA member attorneys licensed in MS who specialize in debt collection and credit reporting. Many/most consumer attorneys will give an initial consultation at no charge. For debt collection in Mississippi: https://www.consumeradvocates.org/find-an-attorney?field_areas_of_practice_list_value=Debt+Collection&field_practice_states_value=MS For credit reporting in Mississippi: https://www.consumeradvocates.org/find-an-attorney?field_areas_of_practice_list_value=Credit+Reporting&field_practice_states_value=MS
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