Brotherskeeper

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Everything posted by Brotherskeeper

  1. @Impress The governing law of the contract is a separate issue from where a lawsuit may be filed against a defendant. If you live in Texas, the proper venue (if there is no binding arbitration clause or it doesn't apply here) is the Texas court in the county and precinct where the defendant resides. This will be spelled out in your rules of civil procedure or whatever they're called in Texas. Unless Virginia is your legal domicile, and you plan on returning to Virginia during this trial, you will have your case heard in Texas.
  2. @BackFromTheDebt There's no way to put a price on your contributions to the sense of a caring community this forum is to panicked newbies needing some support and finding it here. You also will never know how many anonymous people read and benefit from what you contribute. Thank you for paying it forward!
  3. If you haven't done so recently, I'd reread your entire thread. Your understanding has grown by leaps and bounds. You will understand so much more now than you did when you first read these posts. We'll all be rooting for you. A very well-prepared pro se defendant will raise the bar (no pun intended) for Plaintiff's attorney. You have the contract's explicit terms, contract law, the Federal Arbitration Act and the US Supreme Court on your side. They're asking the judge to rewrite the WebBank agreement. They want to retain their contractual rights via assignment to sue you and be released
  4. @BV80 You may remember we helped a young woman, Luvmybabas, in Virginia last year with her Midland suit. It was in an area outside of Norfolk. Her MTC was denied. One of the attorneys from the Midland Richmond office falsely told the judge the Comenity Bank agreement did not contain an arb provision. Luv was flustered, not a native English speaker, and couldn't get the judge to even read her copy of the cc agreement. Attorney claimed that was something off the internet and not the correct one. She tried to file an interlocutory appeal but the court clerk said she couldn't. The clerk consulted
  5. @shadow99 I know this seems daunting, but this argument isn't that complicated. The terms of your WebBank agreement as written are what the judge will presumably enforce. A judge can't rewrite a (legal and lawful--not against public policy) contract that is clear in its terms. Those terms were bargained-for by WebBank and accepted by you. The binding arbitration section had an opt-out provision for you, which you did not exercise. Because the agreement clearly states that the FAA governs the arbitration section, your judge must use the Federal standard in the Act to determine whether or not yo
  6. @shadow99 The Supreme Court in Concepcion makes clear that the terms of private arbitration agreements are enforceable as written. WebBank, as the drafter in your case and a very sophisticated one at that, was free to include threshold limitations on the right to elect arbitration for a dispute of a certain sum. They did not do so. They stipulate that the current JAMS or AAA rules at time of filing are to govern. Certainly WebBank was fully aware of those rules, the fee structure, etc. before including this clause in the binding arbitration section. As @BV80 pointed out, Velocity as an alleged
  7. "...States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal "footing," directly contrary to the Act's
  8. @shadow99 Personally, I wouldn't "trust" the judge you happen to draw next to know the law, especially when the laws in this case may involve Utah law and the FAA. Being prepared for any argument Plaintiff's "attorney du jour" may raise is always a good idea. The worst that can happen (other than your motion being denied) is that you have over-prepared and never have to use any of it. If I was preparing for this next appearance, I'd go through each paragraph of Plaintiff's Response and Opposition to the MTC and prepare to refute or rebut each point. If arbitration is elected and used as
  9. @shadow99 Is this the correct arb provision language from your other thread's MTC with attached agreement as Exhibit A? "3. The parties are bound by the Borrower Promissory Note. The Arbitration Agreement (Section 18) states among other things: (a.) Any Claim shall be resolved, upon the election of either you or me, by binding arbitration administered by the American Arbitration Association or JAMS (b) You and I agree that, by entering into this note, the parties are each waiving the right to a trial. (c) Claim means any claim, controversy or dispute of any kind or nature
  10. ^^This is what I was getting at. What does your arb provision say about the kinds of disputes that arb covers. You and the plaintiff may have different account disputes that are covered by the agreement's arb section. This part of the arb provision defines the "scope" of what disputes can be heard in arb. Your judge, according to Virginia Code and the FAA, will decide 1.) if there is a valid arb agreement (he already has) and, 2.) whether the disputes are covered or excluded by the agreement's arb provision. You need to have the VA code, the FAA provision and the agreement's arb provision to
  11. @shadow69 Have you posted the arbitration clause of your agreement in another thread? https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf INTERSECTION OF THE FAA AND VIRGINIA LAW Although the FAA preempts state law to the extent that state law contradicts federal law, Virginia state courts apply state contract law to determine whether the parties have entered into an arbitration agreement (see Amchem Prods., 563 S.E.2d at 743 (in determining whether a contractual dispute is arbitrable, court applies Virginia subst
  12. @SoStressed...so, maybe NOT SoStressed? Congratulations on your hard work producing this outcome. Thank you for letting us know that the advice and California documents you found on older threads here still have value for current cases. Well done!
  13. @StartingOver123 https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR CR 5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS (2) Service by Mail. (A) How made. If service is made by mail, the papers shall be deposited in the post office addressed to the person on whom they are being served, with the postage prepaid. The service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be de
  14. @BackFromTheDebt is correct that anything you attach to your motion and submit to the court must also be timely sent to the opposing side. In fact, many courts require you to also submit a "proof of service" or "certificate of service" attesting that you did so, when you sent it and by what manner it was sent. Please check your court rules of civil procedure and your local court or judge's rules to make certain you are following them. As a pro se, you are expected to know them.
  15. @Katgotsteve Very good advice: read and re-read all your documents. As you do your research and gain knowledge, you see them in a different light. The attorney and his firm did not read their own documents. Perhaps he thought his sloppiness wouldn't matter. Perhaps it usually doesn't matter for him or other judges he draws. He underestimated you. Your judge was not persuaded by his last minute efforts. Your judge did find your arguments persuasive. Well done and congratulations! And thank you very much for posting your experience and advice here.
  16. @StartingOver123 Here is a legal white paper on arb in your state that may be helpful: "A Practice Note explaining how to request judicial assistance in Washington state court to compel or stay arbitration. This Note describes the issues counsel should consider before seeking judicial assistance, and explains the steps counsel must take to obtain a court order compelling or staying arbitration in Washington state court." Compelling and Staying Arbitration in Washington
  17. According to Ohio's own @nobk4me debt buyers are not allowed to file in small claims court. @Cyndi M. do you have a copy of the Sears Citi Mastercard cardholder agreement? Did Stenger include a copy with the complaint?
  18. You mean that Midland's attorney(s) filed Respondent's Answer to your AAA claim demand? Did Midland file a counterclaim for the debt amount? I'm not clear whether or not you had a court order granted to compel Midland to arbitrate. If yes, did you include a copy of the court order to compel Midland when you filed your claim demand in AAA? In the past, AAA refused to handle claims with Midland without the court order. Midland failed to follow AAA's rules. @fisthardcheese may know if this is still the case. If AAA declines to arbitrate this, AAA will send a letter to both partie
  19. Was your wallet stolen in or prior to 2015? Is it possible someone you know/knew may have had access to your ID? Did you get a copy of the driver's license they claim to have a copy of that "you" presented when the purchase was made in 2015? If not, can they provide the license number for you to verify? Do you know how the payments on these accounts were made? Can you demonstrate that you make payments on your legitmate accounts in a different manner/method or from a different bank? Did you contact your attorney general's office to find out if they have anything else for iden
  20. @BitsyM Here is some info you may find useful. Although you won't have a jury trial, understanding what a jury must find in order to find for you helps you to craft your facts and proof. Stockmeyer, Norman Otto, General Principles of Contract Damages (2002). MICHIGAN LAW OF DAMAGES AND OTHER REMEDIES, Barbara A. Patek, Patrick McLain, Mark Granzotto, and Norman Otto Stockmeyer, eds., ICLE, 2002, Available at SSRN: https://ssrn.com/abstract=1733163 Chapter 13: General Principles of Contract Damages [1] 2. Pleadings and Proofs §13.14 Although mitigation is not among
  21. @Mhopeful Here is a link to the National Association of Consumer Advocates (NACA) members who are licensed to practice in Ohio. https://www.consumeradvocates.org/find-an-attorney?field_areas_of_practice_list_value=Debt+Collection&field_practice_states_value=OH
  22. You didn't answer this very important question from @LaneBlane Before you can study arbitration, you must first determine what type of arbitration forum rules (consumer or business) you would be subject to. The cost to you is very different and is vital to your strategy going forward.
  23. @Infinity Angel Did you call this attorney's office to inform him/her that you do not know this defendant, never employed her or paid her any sum; the named LLC has been inactive during all times relevant to this matter; you have no documents in response to this subpoena's attached schedule in the above-referenced civil matter involving this defendant?