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Found 766 results

  1. I need some help with this, I received a civil citation from Midland Funding on January 17,2018, I filed an Answer stating I did not have any knowledge of the information in the citation, on the 31st. One issue is it is in the wrong Precinct. it has a statement on the debt owed, an Affidavit from Mary Pikkaraine relating to business records and 4 statements. What do I do next...file to have it moved to the right Precinct or an Amended Answer asking for Original Contract? Also Synchrony Bank has an Arbitration Clause do request that? 1. Who is the named plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Scott & Associates, PC-Carrollton, Texas 3. How much are you being sued for? < $2608.59 4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank 5. How do you know you are being sued? (You were served, right?) I was served at my home. 6. How were you served? (Mail, In person, Notice on door) In person, at my home. 7. Was the service legal as required by your state? Process Service Requirements by State - Summons Complaint Based on what I read there, yes. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I am not sure if I received anything from them, but I have not personally spoke to anyone. 9. What state and county do you live in? Texas, Jefferson 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Statement in paperwork 6/2015 also states charge off 12/15 11. What is the SOL on the debt? 4 yrs Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). suit served, filed answer, will have to call court 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Had 14 days, filed generic answer charges are debt collection Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. - Original Petition - Affidavit of a "Legal Specialist" - 4 Account Statements
  2. Hi Everyone, I have what I hope is a simple question. I have used this forum in the past and have been able to get cases dropped using the recommendations of other users on this site. Well, my wife had a case filed against her by Midland, and we have submitted our answer and a Motion to Compel Arbitration. All seems wonderful, Right? Wrong. We are dealing with a court clerk that is a complete and total P.I.T.A. (Pain In The A..). First she "lost" our answer and it wasn't found until I complained directly to the JP. And now that we have filed a Motion to Compel Arbitration she is stating the we need an Order to file the Motion. I know this can't be right or am I completely lost. How can you have an Order to file a Motion to Compel? This makes no sense. The court clerk emailed me the following on Friday. Your Wife just came in and filed a motion to compel arbitration. First there is not an order attached to this motion and second she did not sign the certificate of the motion. I understand that if my wife didn't sign the motion that it cannot be accepted, but what does the clerk mean by "there is not an order attached to this motion"? Any information on this would be helpful. Thanks
  3. I've been reading through everything in this forum to help me prepare to defend a lawsuit brought on to me by Greene & Cooper (representing Midland Funding). The OC is Comenity Bank, and they sold it to Midland. The debt is $1600. I got served at the end of September, answered the suit denying all allegations, and was prepared to MTC arbitration in court. Well, on my court date, there was a local counsel representing Midland and when we went to mediate I gave her my MTC arbitration, and she was completely confused. She looked at my document for 30 seconds, then looked at the credit card agreement for another minute. She told me to hold on, called someone and spoke to them for 20 minutes out in the hall, then came back and said that they were going to oppose the arbitration. So we go before the judge (this is in Forsyth County, GA). I say that I would like to settle my dispute via arbitration, and here is my MTC, attached with the credit card agreement giving me the right to pursue this option. Then the judge asks the plaintiff, and she says that they oppose the arbitration because Greene & Cooper have no contractual obligations to me, and that if I wanted to arbitrate, that I'd have to take it up with the client - Midland Funding, who she also says has no agreement with me to arbitrate. Well the judge listened to her, then took my MTC and agreement and read it over. He said that I was allowed to pursue arbitration if that was my wish, and that I had that right, but then goes on to say how expensive it's going to be and if I really wanted to do this. Directing it at me. I told him about the clause that said the bank would be responsible for the fees associated with it, and he stops and asks again if I wanted to pursue it because I was the one that brought the MTC. I said yes. Then he said my MTC to compel arbitration was granted. The rep for Greene & Cooper didn't say anything. She just sat there, and said I would have to take it up with Midland and that they were just the attorneys representing them. The judge then says that I have to orally report the status of the arbitration scheduling to the court within 30 days. If I or the other party do not do this, then a status hearing will be scheduled. I'm getting worried because I don't know what to do next. The judge said it was my responsibility to find an arbitrator and schedule the process for it. That's not really what I wanted to happen. I was hoping that Greene & Cooper would file a motion to dismiss after realizing I wanted to arbitrate. HELP! Am I going to be responsible for arbitration fees? Do I need to schedule it? Do I need to send a copy of my MTC to Greene & Cooper or Midland? The rep there didn't take anything, and just left after the judge gave her a copy of the order. I'm so confused. Is there anyone that can help me to figure out what to do in this situation? I feel like the judge was annoyed that I presented an MTC arbitration, and was trying to make me think that I would have to do all the legwork and pay all the fees.
  4. This will be a series of posts regarding general information about the strategy and steps in arbitration. Please read all the way through as tidbits have been added from time to time. A MTC arbitration is listed in post #8. If you need one requiring a brief in support, you can find that in post #165. A sample of a formal complaint is now listed in post #36 & #37. Sample violations are listed in post #38. Settlement negotiations are discussed in post #76. A Motion to Clarify is listed in post #274. This might be helpful to file back with your court (and ask for a hearing on your motion) if Citibank sneaks into AAA after a consumer has already filed in JAMS. Sample letters to send to the creditor and their attorney "after" your MTC arbitration is granted are listed in posts #298 and #299. This allows the creditor an opportunity to "get out" of going into arbitration while the consumer gets what they want. Both parties are pleased with a mutual walk away. The creditor saves money by not going into arbitration and paying the high fees, while the consumer gets the court case dismissed with prejudice, no selling of the debt, deletion of the negative tradelines and no 1099. Election letters, judge's order, affidavit, etc., are discussed in various posts. Please read through the whole thread to glean any information that might be applicable to your situation. Capital One has been using the argument against consumers that they took out arbitration in 2010 and even though your agreement from when you opened the account has a survivability clause, they say that due to their amending the agreement in 2010 - that arbitration is no longer an option. See post #272 for a sample of a MTR (motion to reconsider) that can be filed if the judge rules against the consumer. Or you can use the arguments in the MTR to orally argue the points if you have a hearing scheduled and Capital One brings up the Ross v BOA case. *NOTE - the case cites are for Michigan. You could use your own state's case cites and then use the rest of the MTR to support your argument. In talking about election and initiation, please realize this is two separate things. Election is when you notify the creditor and their attorney (if it has gotten that far) that you elect arbitration. Initiation is filling out the forms to begin the proceedings of arbitration. If you are dealing with Citibank, you have to elect and initiate with JAMS on the same day to keep them from getting into AAA. If you want to use arbitration, elect "early"! In some courts you waive your right to arbitrate if you participate in discovery or file other motions with the court. They take that as continued litigation. In Florida, you would want to send a letter electing arbitration to the attorney and creditor and then file a MTC arbitration with the court. Don't file an answer first or you waive your right to arbitrate. In some other states, you can file your answer along with your MTC arbitration and use as your first affirmative defense that you have elected arbitration which takes away both parties right to litigate. If you want arbitration, check your own state's rules to make sure you file correctly and don't waive your right to arbitrate. If your agreement has arbitration, you can use this as a strategy to get the creditor out of court or keep them from ever getting into court. And why would you want to do that? Because in court, it doesn't cost the creditor much to pursue the collection of the debt. However, if you get into arbitration, it will cost the creditor a "lot" to pursue the same debt. Often times this will get them to walk away or at least give you great negotiating power to get a great settlement. Here's a thread which gives more information in regard to that - http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html'>http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html Another good reason that one might consider using arbitration is due to the SOL of the debt. In most courts (not all) you can't successfully use the argument of the contract's language of another state's shorter SOL. However, there are a very few exceptions - with Florida quickly being one of them that comes to mind. In Florida you can stay in court and use another state's SOL. Read up on the Pincus case for more information. Also, be sure and check to see if your state views credit card debt procedural or substantive or if your state might have a borrowing statute. However, for the majority of states, you're generally stuck with your own state's SOL even though the agreement may specifically say that it is governed by the laws of the state of Delaware or Virginia - they will still use your own state's "longer" SOL. Georgia is one of these states that comes to mind. But, in arbitration your state's rules should be thrown out the window and the arbitrator will ask what state's laws you want to use, so you at least have the option of declaring that you are abiding by the contract's language and you both agreed to the contract which says that Delaware or Virginia will govern the contract. (If one of those is in your agreement). So, then if you wanted to use the shorter SOL, then you would have a reason to ask for a dismissal if the debt is beyond the SOL according to the laws of Delaware or Virginia. Again this will depend on your agreement's language, so read them thoroughly. First, I would like to say to "read" your agreements! There is a wealth of information there and depending on who you might be up against, the agreements and/or even the years of the same creditor's agreements can be different. Always look for one that is more to your liking and use it as the governing agreement. If you attach an affidavit, that makes it a fact before the court. To defeat this, the creditor would have to provide authentic evidence or a witness from the OC with personal knowledge - anything else would be hearsay. So, in other words once you file your affidavit, you've just twined another obstacle in the creditor's path. Think of the year the account was opened and what year the account defaulted, then look for any and all agreements that fell within that time period and find the one that best suits your needs. In particular, look for one that has JAMS as that is the best for choosing against a creditor as it costs the creditor a "lot" to pursue the collection of a debt when the consumer has elected JAMS. Also, be on the lookout for a survivability clause in the agreement you want to use. Often the creditor will try to say that the agreement you chose is outdated and say that it has been amended to a newer agreement that is better for them - the newer agreement could have even gotten rid of JAMS. But, if you have an agreement that fell within the time period of when the account was opened and the default and it has the survivability clause, then you direct that to everyone's attention - even including that part in your MTC arbitration. The survivability clause should say something along the lines that it will survive "any" changes in the agreement, etc. *Also, please note, this thread contains my views and opinions only and is not "set in stone". **Also please note this is a work in progress and I will be stopping from time to time and then coming back to pick up from where I left off. My hope is to try and get all the information together in this one thread.
  5. MY ANSWERS TO THE STANDARD QUESTIONS: 1. Who is the named plaintiff in the suit? PRA 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) listed for Norfolk, VA 3. How much are you being sued for? $1000.00+ 4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank/Amazon (I have copy of agreement with JAMS clause) 5. How do you know you are being sued? (You were served, right?) Court verified 6. How were you served? (Mail, In person, Notice on door) Notice on door on August 21st | Mail rec'd August 22nd. 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? No 9. What state and county do you live in? Indiana 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2.2015 11. What is the SOL on the debt? 6 yrs 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Court website has status as SERVED AUGUST 21st. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? (listed below) I have 20 calendar days to respond. Which means Sunday, September 10th is my 20th day. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Included in the summons packet are the following documents: PAGE #1 Summons - Must answer the complaint in writing to be filed with the court within 20 days from date you received summons. PAGE #2 Affidavit of Debt - Unpaid balance $1000+ on account ending in XXXX. This account was opened 2011. Last payment received 2015. Type of acct: Credit card (Synchrony Bank/Amazon) Plaintiff is not seeking attorney fees PAGE #3 Complaint: Account of NAME, account number ending in XXXX is in default Original creditor is Synchrony Bank Obligation is past due. Amount owed $1000.00+ Plaintiff demands judgement against defendant for the sum plus court costs. PAGE #4 Bill of Sale: September 2016 - There is no identifying info at all on this document. Document indicates forward flow covenants and conditions in purchase agreement - no purchase agreement included. PAGE #5 Summary of Account Activity from Amazon. PAGE #6 & #7 Appearance by Attorney in Civil Case PAGE #8 Certificate of Service
  6. I'm being sued by Calvary SPV in Indiana. I received the summons today on my door and have 20 days to respond. The complaint states that the plaintiff owns an account due by me and the assignee was synchrony bank and the amount is 4000.00.They have attached only 1 exhibit which is an affidavit of debt signed by a designated agent of Calvary SPV stating they are familiar with the record keeping practices ofthe plaintiff, that Calvary is not the original owner of the debt. It states the amount owed as of a certain date with the last 4 numbers of an account number. It states the date the alleged account was opened and the date the last payment was supposedly received on 10/9/16. The affidavit is not notarized and there is nothing else attached to the summons. Can someone please help me? Should there be other information attached? How should I answer and what affirmative defense could I use? I've been reading about arbitration and the synchrony agreements have arbitration clauses. I've been looking but I can only find a synchrony retail agreement on the consumer protection bureau site for 6/17. How can I find an agreement from before payments stopped on the account? Can I request arbitration in my answer?
  7. A Civil Complaint was filed against me by an attorney representing a JDB. They amount the claim I owe is between $6,000-7,000. Because I was up against a deadline, and didn't want to risk a default judgment, I had an attorney prepare an answer for me. It's someone I know, so I felt comfortable going to him. BIG MISTAKE! He talked me out of including the contract's arbitration clause as an affirmative defense because he said I could be held responsible for paying the plaintiff's attorney's fees and arbitration costs if I lose. From what I understand, a consumer is only responsible for paying a $250 fee. The Plaintiff sent over the first set of interrogatories, request for production of documents, and admissions. This is when I told myself I have to take advantage of that arbitration clause. My attorney has since withdrawn himself from the case. I was advised in another forum on this site that I need to file a Motion to Compel Arbitration. I'll post the document I've prepared so far in a separate post. My contract reads, " Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal (including claims transferred by the small claims tribunal to another court) shall be resolved by binding arbitration. " Here's the complete arbitration section: Except as otherwise stated below, any Claim (as defined below) will be resolved by binding arbitration pursuant to (a) this Arbitration Provision and (b) the code of procedure of the national arbitration organization to which the Claim is referred (as in effect when the Claim is filed). Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. Streamlined arbitration procedures will be used if available. If a selection by us of one of these organizations is unacceptable to you, you have the right, within 30 days after you receive notice of our election, to select the other organization listed to serve as arbitration administrator. For purposes of this Arbitration Provision, “Claim” means any claim, dispute or controversy (whether in contract, tort, or otherwise) past, present or future, (collectively, "Claims") as further described below. (If for any reason a selected organization cannot, will not or ceases to serve as an arbitration administrator, you or we may substitute another arbitrator or arbitration organization that uses a similar code of procedure and is mutually acceptable to both parties, in accordance with Section 5 of the Federal Arbitration Act. If both parties cannot agree on an arbitration organization, then either party may ask a court of competent jurisdiction to appoint a qualified arbitration organization.) An arbitration proceeding can decide only your or our Claims. You cannot join other parties (or consolidate Claims). Neither you nor we will be permitted to arbitrate claims on a class-wide (that is, on other than an individual) basis. Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal (including claims transferred by the small claims tribunal to another court) shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration. SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS. IN ARBITRATION, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (THAT IS, THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT YOU OR WE COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN YOUR OWN OR OUR OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Except as set forth below, the arbitrator’s decision will be final and binding. Only a court may decide the validity of items (iii) and (iv) above. If a court holds that items (iii) or (iv) are limited, invalid or unenforceable, then this entire Arbitration Provision will be null and void. You or we can appeal any such holding. If a court holds that any other part(s) of this Arbitration Provision (other than items (iii) and (iv)) are invalid, then the remaining parts of this Arbitration Provision will remain in force. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation and enforceability of this Arbitration Provision. The decision of an arbitrator is as enforceable as any court order and may be subject to very limited review by a court. An arbitrator may decide any Claim upon the submission of documents alone. A party may request a telephonic hearing if permitted by applicable rules. The exchange of non-privileged information relevant to any Claim, between the parties, is permitted and encouraged. Either party may submit relevant information, documents or exhibits to the arbitrator for consideration in deciding any Claim. Right to Opt-Out of Arbitration. You may opt-out of this Arbitration Provision. If you do so, neither you nor we will have the right to engage in arbitration. Opting out of this Arbitration Provision will have no effect on any of the other provisions in this Agreement. To opt out of this Arbitration Provision, we must receive your written notice of opt-out, within 60 calendar days after we approve your Loan, at Account Services Dispute Resolution, P.O. Box 77081, Atlanta, GA 30357; ATTN: Arbitration. In your letter, you must give us the following information: Name, Address and Loan number. The right to opt-out granted here applies solely to this Arbitration Provision and this Agreement, and not to any other provision of this Agreement or to any other Loan or other agreement with us. In the event of a dispute over whether you have provided a timely opt-out notice, you must provide proof of delivery. Broad Meaning of "Claims." The term "Claims" in this Arbitration Provision is to be given the broadest possible meaning and includes (by way of example and without limitation) Claims arising from or relating to (i) this Agreement, (ii) any transactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement, (iv) collection of your obligations arising from this Agreement, (v) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between us pursuant to this Agreement, including any Claims regarding information obtained by us from, or reported by us to, credit reporting agencies or others, (vi) Claims between you and us or our parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between us pursuant to this Agreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or this Agreement including but not limited to whether a given claim or dispute is subject to arbitration. Arbitration Procedure and Costs. For a copy of relevant codes of procedure, to file a Claim or for other information about JAMS and AAA, write them, visit their web site or call them at: (i) for JAMS, 1920 Main Street, Suite 300, Irvine, CA 92614, info@jamsadr.com, http://www.jamsadr.com, or 1-800-352-5267; or (ii) for AAA, 1633 Broadway, 10th Floor, New York, NY 10019, websitemail@adr.org, http://www.adr.org, or 1-800-778-7879. If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including reasonable attorneys’ fees, incurred by the party compelling arbitration. Any physical arbitration hearing will be held in the federal judicial district selected by Merchant. No matter which party initiates the arbitration, we will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses. Unless prohibited by law, the arbitrator may, applying applicable law, award fees, costs and reasonable attorneys’ fees and expenses to the party who substantially prevails in the arbitration. The allocation of fees and costs relating to an appeal in arbitration will be handled in the same manner. For an explanation and schedule of the fees that may apply to an arbitration proceeding, please contact the organizations at the addresses above. The appropriate fee schedule in effect from time to time is hereby incorporated by reference into this Arbitration Provision. The cost of arbitration may be higher or lower than the cost of bringing a Claim in court, depending upon the nature of the Claim and how the arbitration proceeds. Having more than one Claim and holding a physical arbitration hearing can increase the cost of arbitration. Governing Law for Arbitration. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator. The panel will reconsider de novo (that is, without deference to the ruling of the original arbitration) any aspect of the initial award requested by the appealing party. Continued Effect of Arbitration Provision. This Arbitration Provision will continue to govern any Claims that may arise without regard to any termination or cancellation of this Agreement. If any portion of this Arbitration Provision (other than the provisions prohibiting class-wide arbitration, joinder or consolidation) is deemed invalid or unenforceable under the FAA, it will not invalidate the remaining portions of this Arbitration Provision. If a conflict or inconsistency arises between the code of procedures of the selected arbitration administrator and this Arbitration Provision, this Arbitration Provision will control. I need some guidance though the process of filing a MTC Arbitration, appearing in court on the motion, and (hopefully) initiating arbitration through JAMS. Thank you in advance for your help and advise.
  8. Hi all- I got served today. I had been on this site before and followed Linda7 advice- sent a letter: "I dispute this alleged account. As per the FDCPA, I have the right to request proper validation of the alleged debt. I elect private contractual arbitration via JAMS to resolve any disputes between us. All phone calls are inconvenient, so all communications need to be by mail." I did get a letter from their fraud department a bout a month later asking why I disputed. I didn't respond to that.I also got a package with some statements , cancelled checks stuff liek that, which I just set aside for later. I've been pretty out of it from an injury and trying to deal with recovery and the legal proceedings of that as well. Today I was served at my home- it was a legal serving. I'm in Washington State. They claim I owe over 16k. (I dont think its that much) Firm is Sutter, White Hammer I Checked and they do not have a "collection agency " license which I think WA state requires (my eyes are bleeding from all the reading but I read if a law firm practices majority of collecting debt for their clients then they are considered a "collection agency" and require special licensure- which Sutter, Hammer and White don't seem to have under WA business lic search. I don't know if that's my loophole? I wanted to go for arbitration just to buy time, but am afraid that will end up costing me a bunch more for the fees. I was injured and lost my ability to earn virtually overnight. Its been 2 years. I paid my debts for one year then I just havent been able to keep it going for the last one. I had surgery a few weeks ago and all the sob story later- I believed I just need to buy time and maybe pay them off with the settlement from my lawsuit (injury) But that is taking longer than I thought. All the advice i get is to hire an attorney- If I could afford an attorney, ID just pay the debt. I have no money at this time to negotiate with. Id file Bankruptcy but I cant because of the lawsuit. Any advice.. Everyone seems so knowledgeable. I love the way you guys help. I hope one of you will see this and help me. I want to respond to the summons it says to do so in writing within 20 days. I thought I would say I had requested arbitration... and was waiting for a response to that. ? Can anyone offer any guidance what do I do next?
  9. Hello. I had a loan with Springleaf. I became seriously ill and lost my job. I had to move in with my adult daughter. Springleaf charged off the debt, but jdb Cach, LLC picked it up and have filed suit. My question is this: My contract with Springleaf had an arbitration clause in it. Does that clause apply to Cach, LLC too? I have filed an Answer and received an order to produce and interrogatories. I'm trying to proceed cautiously. By the way, before Springleaf charged the debt off, they asked why I missed two payments. I told them the situation and they said not to worry, they were going to charge it off and not collect. Probably doesn't make a difference because I cannot prove they made that statement.
  10. In a separate thread, facts came up that a certain internet bank is governed by an arbitration clause in the contract. If they file in court vs. JAMS or AAA is it : 1. an improper forum for any controversy ? 2. can it be quashed with a demurrer or a motion to quash? 3. can it be struck with a Motion to Strike? or 4. Completing the steps already used for forcing arbitration? I am thinking if we can kick them out of court once then the judge has to see that every case is flawed
  11. Okay! I apologize if this is a repeat. Really trying to get all my ducks in a row before I head to the courthouse tomorrow. I was served a complaint by Cavalry on Monday. I have 15 days to respond. I wish to proceed with private contractual arbitration. I am going to file my answer tomorrow. Do I NEED to file a MTC arbitration now? Or can I state my affirmative defense in my answer and wait for the plaintiff to take the next step? I am electing arbitration via JAMS as per my CC agreement. Help! The steps are so confusing.
  12. Hi. Please be gentle. I have been reading quite a few posts and now think I know enough information to be a little bit dangerous... My wife was served a summons almost 30 days ago. I am about to file the official responses with the superior court system, but I just read about arbitration and JAMS. The original creditor was Citibank. The amount my wife is being sued for is $8,235.57. I don't want to make any mistakes when doing this, so I am asking for any and all assistance here. Her official responses are a denial of all allegations (attorney friend via the phone--she has no real experience with collection company law, but she knew enough to assist with the answers and suggest I find an attorney out here). I have been reading about JAMS and arbitration, but I can't really figure out what exactly I need to do. My wife's account Q/A is below: 1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Quall Cardot, LLP, in Fresno, CA3. How much are you being sued for? $8,235.574. Who is the original creditor? (if not the Plaintiff) Citibank5. How do you know you are being sued? (You were served, right?) I was served, and the summons was also mailed.6. How were you served? (Mail, In person, Notice on door) In person and via the mail7. Was the service legal as required by your state? As far as I can tell, yes.Process Service Requirements by State - Summons Complaint8. What was your correspondence (if any) with the people suing you before you think you were being sued? They called and left a message on her cellphone (paraphrased) ".....if you can arrange a time for us to serve you, we won't have to go to your place of employment and tell your boss about it...."9. What state and county do you live in? Orange County, CA10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 09/10/201311. What is the SOL on the debt? 4 years12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served--not in default yet. I need to file the response today to stay within the 30 day time period.13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Have not done so yet.15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days There are 24 allegations--I can list them but it will take a quite a bit of time and space. She is being sued in her Maiden Name, not that it changes anything. I was able to attach a redacted copy of the official summons.16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 2 exhibits--one is the credit card statement showing the last payment and balance, and the 2nd is a receipt showing that they purchased a bulk of debt from Citibank--nothing specifically listing my wife's account. Lyn Summons, redacted.pdf
  13. I was served a summons by Cavalry this morning. They bought my debt from Synchrony Bank. I have read all day long trying to educate myself on how to proceed. The debt is $5700 and the credit card agreement has an arbitration clause with JAMS. How do I proceed? Do I file a MTC before I file my answer to the complaint? I am in Louisiana & through all of my googling cannot find the proper order for this. Any help is much appreciated! Also, I know y'all can't predict the future, but seeing as this debt is with a JDB and not an OC and is below 10k, is the MTC arbitration a good choice?
  14. Hey guys, I'm clueless about the JRCP as they pertain Midland Funding LLC's pending case against me here in Maricopa County, AZ. Specifically, I'm hesitant to attempt to file an amended Answer and move to Compel Arbitration at this point because as I understand a MTC Arbitration requires me admitting to being a party to the original Credit One Bank cardholder agreement they show being established under my name back in 2015. It's been just more than 40 days now since I filed my Answer in which I denied knowing anything about the account and earlier this week the Judge dismissed my Counterclaim (Plaintiff's counsel likened my affirmative defenses to throwing spaghetti at a wall and seeing what might stick in their Response and Motion), so what is the likelihood that a MTC Arbitration would even help me? Also, if arbitration is granted and Midland follows and prevails can I still file Chapter 7 in the future to have any award discharged? I broke out in shingles stressing over all this and I'm only in my thirties! I wish Midland would leave me alone because I have no nonexempt assets or wages for them to collect making this whole process is a complete waste of resources. 1. Who is the named plaintiff in the suit? MIDLAND FUNDING LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Gurstel Law Firm P.C. (formerly known as Gurstel Chargo P.A.) 3. How much are you being sued for? <$850.00 4. Who is the original creditor? (if not the Plaintiff) Credit One Bank *account opened in 2015 5. How do you know you are being sued? (You were served, right?) served 6. How were you served? (Mail, In person, Notice on door) in person 7. Was the service legal as required by your state? I was properly served 8. What was your correspondence (if any) with the people suing you before you think you were being sued? No contact, never heard of them until served 9. What state and county do you live in? AZ - Maricopa 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never paid, but the account is over 2 years old based on dates listed in the Complaint 11. What is the SOL on the debt? 6 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Current case status listed online is Adjudicated. Pretrial scheduled to take place in about 30 days 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. MIDLAND lists charges as follows: Count 1 Breach of Contract and Count 2 Account Stated Did you receive an interrogatory (questionnaire) regarding the lawsuit? No interrogatory. Already filed an Answer denying everything except my name, address, proper venue, court jurisdiction over the matter as the amount is less than $10k, and prevailing party should be awarded all costs. I filed a Counterclaim at the same time I filed my Answer. Counterclaims were affirmative defenses of Laches, Lack of Standing, Statute of Frauds, Unjust Enrichment, Failure to provide copies of contract/statement(s)/etc., and of course that I reserve the right to amend my answers, defenses, and claims at a later date. All of this before I came across your helpful website.... 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. There was no evidence attached to the Summons and Complaint. No evidence has been provided to me and the attorney has filed Motions to substitute counsel, appear telephonically, and to dismiss my counterclaims. I haven't completed the Disclosure form that the court sent me in the mail but it will be due soon.
  15. So I have a small claims suit against me in a few months with a JDB. Citibank is the OC and the debt is within SOL. The JDB is Calvary and I'm unsure if their validation letter is legitimate. Second, I'm unsure if arbitration is allowed in small claims for the user agreement. I only have mobile and it will not let me attach the user agreement. Any help is appreciated. I'd like to settle the debt favorably with what I have available which is about 60% of the total cost alleged. IS arbitration recommended or should I attempt negotiating with JDB?
  16. In MN. Received pocket summons (no court file yet) from debt collector law firm representing 1st creditor. I understand I have to respond to summons to avoid default judgment. I would like to push this to arbitration with JAMS since it was part of the original contract that either party could request. I am hoping debtor fee for arbitration will make them rethink settling or dropping it. Or if neither, level the playing field a bit since I can't afford to hire an attorney. I am a cosigner on account. We are both listed on the pocket summons. Can we respond with one set of answers with both our names on it? Do I include in my answers that I am invoking my right to choose arbitration? If yes, where/how do I do this in the response? Do I need to actually initiate arbitration (ie contact JAMS and initiate) before sending in answer? Do I need to send letter to debt collection attys and creditor re exercising right to use JAMS for ADR before I send in answers, or can I do it at same time (ie attys for creditors would receive both ADR and answers at once)? This is involving a subprime car loan. I surrendered the car because it never worked right and supposed "warranty/service agreement" they charged me for never fixed the problem (inconsistent starting). I was never informed of time/place of sale of car. Nor was I informed of sale price of car and given an accounting of my "balance owing" - even after several requests to car dealer, creditor, and creditor's attys. My understanding is that this is required and could be cause for dismissal of suit. Do they have to give proof of sale price of car (w VIN on it so I know it refers to the car in question)? Can I argue these failures as an affirmative defense in my answers or do I just say I don't know actual account balance so I cannot admit owing anything? I don't know how aggressive to be with this in answers or how to say it. Thanks in advance for any advice!
  17. Unfortunately I am back in small claims. After receiving a notice in 2015 from the same law firm regarding a Citibank card, I send a DV (within 30 days). I never heard back. This account went through several players and not one would budge on settlement payment/plan. So I forgot about it. In January 2017 I suddenly received a package in the mail. Please see the attached below. I am thinking I may have yet another violation of the FDCPA - the DV cover letter states "Plaintiff Citibank" and Defendant "Me". Nothing was filed until March 09 2017. The amount on the complaint is $4,500 and the filing fee. I have to answer by tomorrow and am going to do this once I post here. I want to to a MTC again but, how does the Citibank SC exclusion work? I read that "Usually the language in a credit card agreement that has the small claims exception is ambiguous, and as many courts have stated, any ambiguity in a contract is construed against the maker. " The paragraph after the small claims language is thus (2017 agreement): Arbitration limits• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court. • We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt. From a 2011 CA - What about Claims filed in Small Claims Court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim. What about debt collections? We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt. Thank YOU!!!!! The "DV" package contained the following: 1. Bill of Sale - on a blank 8 1/2x11 sheet of paper - no logos, no notary, no seal, no nothing! and 3 statements( 2 copies of each) 3 affidavits (see below as I typed them out) and a computer print out with last 4 of SSN, last payment date, charge off date and name/address/DOB 2. Affidavit from Citibank “Document Control Officer” Susie DeSha, stating my account was sold to Atlantic – dated , 2015 3. Affidavit of Angela Campbell – Atlantic Credit Atty. Relationship mgr. , 2016 – State of NH “1. I am employed as an Attorney Relationship Manager by Atlantic Credit & Finance, Inc (“ACF”) servicer of this account on behalf of ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC (“Plaintiff”). I am a competent person over the age of eighteen years of age, and I am authorized to make this affidavit on Plaintiff’s behalf. In this affidavit, I make my statements about this account based upon my personal review and knowledge of those account records maintained by ACF on Plaintiff’s behalf and that are pertinent to those statements (“Pertinent Records”). 2. Plaintiff is current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's CITIBANK NA account xxxxxxxxxxxx- (herein "the account"). 3. As a result of Plaintiff’s purchase of the account, ACF acquired certain account records from the seller and incorporated those records into ACF’s own permanent business records. Those acquired and incorporated records are kept by ACF in the regular course of business on behalf Plaintiff. 4. The acquired and incorporated records are treated as trustworthy and accurate, and are relied upon by Plaintiff and ACF in purchasing and servicing this account because, the original creditor was required to keep careful records of the account at issue in this case as required by law and/or suffer business loss. 5. I have access to and have reviewed the Pertinent Records (including pertinent electronic records) concerning the account maintained by ACF. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by ACF in connection with servicing the account since the day the account was purchased by Plaintiff. In addition, I reviewed the documents that are attached to this affidavit. 6. As set forth in the records attached hereto, on or about X/X/2015, the account was sold from Citibank, N.A. to Atlantic Credit & Finance Special Finance Unit, LLC. If applicable, the account was then sold to the following debt buyers in order of occurrence on or about: 7. Attached hereto are the following records regarding the account: Bill of Sale(s) and Assignment and/or Affidavit(s)of Sale for the above referenced sales) of the account. Seller data sheet reflecting the individual account data extracted and printed from electronic records provided to the seller to ACF pursuant to the Bill of Sale/Assignment in connection with the sae=le of the account to Plaintiff. 8. The documents attached hereto are true and correct copies of the originals, being a reproduction of the records on file on behalf of Plaintiff based upon my review, except to the extent that confidential and privileged information anf/or personal identifying information is omitted or redacted as required by local rules, and applicable state and federal law. 4. Affidavit of Angela Campbell – Atlantic Credit Atty. Relationship mgr. , 2016 “1. I am employed as an Attorney Relationship Manager by Atlantic Credit & Finance, Inc and have access to pertinent records of this account maintained on behalf of Plaintiff by its agents. I am a competent person over the age of eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. Plaintiff is current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's CITIBANK NA account xxxxxxxxxxxx- (herein "the account"). In connection with plaintiff's acquisition of the account, relevant account records and information have also been by the original creditor or its agents/assigns. I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf. 2. I am familiar with the manner and method by which the business records I have reviewed are created and maintained on behalf of the plaintiff pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation was made at or near the time of the act or event. 3. The account shows that the defendant(s) owe(s) a balance of $XXX.xx, based upon my review of business records kept on behalf of Plaintiff, Defendant(s) opened a CITIBANK, N.A, account, and the account was charged off on X/X/2015 4. Those business records that I have reviewed do not indicate that the defendant is a minor or incapacitated person. 5. Attached hereto is a true and correct copy of a statement of account, bill(s) of sale and/or billing statement(s) relating to this account, as reflected in plaintiff's business records and/or records provided to plaintiff by original creditor (or its agents/assigns) in connection with the plaintiff's purchase and/or assignment of the account. 6. The documents attached hereto are true and correct copies of the originals, except to the extent that confidential and privileged information is omitted or redacted and personal identifying information is omitted or redacted as required by local rules, and applicable state and federal law.
  18. Recently I noticed a sharp drop in my CS (50 points) and all three CRAs showed a collection for 5900.00 by Cavalry Portfolio Services, with the OC being Citibank. It shows date of last payment as 2014, and in Minnesota I believe has a 6 year SOL. To date, I have not been contacted by Cavalry or any of their partners, that I know of. I have checked state court filings and a suit has not yet been filed. My question is: what is my first move? Should I send a DV? Should I file for arbitration? Or should I attempt a PFD? I have doubts on the amount, and believe the OC may have charged me interest and fees in violation of the SCRA when I was active duty. I have typed up a request for information/validation letter I found on the CFPB page, but after reading some posts hear, I did not send it.I am in the process of reading through these posts, this is the last derogatory on my history. Any information or assistance you could provide would be greatly appreciated. Thank you in advance for your assistance.
  19. Recently I noticed a sharp drop in my CS (50 points) and all three CRAs showed a collection for 5900.00 by Cavalry Portfolio Services, with the OC being Citibank. It shows date of last payment as 2014, and in Minnesota I believe has a 6 year SOL. To date, I have not been contacted by Cavalry or any of their partners, that I know of. I have checked state court filings and a suit has not yet been filed. My question is: what is my first move? Should I send a DV? Should I file for arbitration? Or should I attempt a PFD? I have doubts on the amount, and believe the OC may have charged me interest and fees in violation of the SCRA when I was active duty. I have typed up a request for information/validation letter I found on the CFPB page, but after reading some posts hear, I did not send it.I am in the process of reading through these posts, this is the last derogatory on my history. Any information or assistance you could provide would be greatly appreciated. Thank you in advance for your assistance.
  20. I am being sued by Midland Funding and am planning to file a motion to dismiss/summary disposition before I file my answer but am having an extremely hard time finding any forms online to fill out to file for this. Can anyone help? I am finding examples but can't seem to copy the text to modify for my case. ETA: See below for exact details on the case including Complaint and Affidavit.
  21. So I had a loss today in court against PRA, Dallas County court. I asked the Judge if I could MTC arbitration but he basically said my card member agreement was null and void because PRA owns the debt and proved so by showing a purchase agreement. I had a copy of the card member agreement with me but he didn't even look at it, already had the arbitration area highlighted for him. I am attaching the docs I got back with my card member agreement as well. Other members say that its possibly because there is a clause in the arbitration saying the debt can be sold, etc etc. I cannot quote that here because this is a different thread. Attached is the thread I originally posted about the loss. Anyone here have some info I what I can do next in this case? I feel I was not given the chance I should have been given.
  22. Can anyone point me in the direction of how to Initiate with JAMS? I was looking at their website but I see no type of form or anything I can fill out to show I am initiating arbitration with JAMS.
  23. If I filed a general denial and the court set a hearing in 2 weeks can I still elect JAMS or do I need to wait and appear in court then present my contract and advise I'm electing arbitration per my agreement?
  24. I'm filling out the arbitration demand. Just a couple of questions (hope not too stupid). Just to make sure. 1) I'm the Claimant and Discover Bank is the Respondent. Correct? 2) It's asking to "Please cite location of arbitration provision and attach two copies of entire agreement." What location are they talking about? BTW, I read Lind7's thread on Stategy of Arbitration. Are there any other good threads I should read?
  25. If down the line I file bk and include a Barclays account after going thru the arbitration process, will it not be able to be discharged because of this section in their cc agreement? Do I try to stay away from arbitration if there is a chance I will need to file bk in the near future? This section has me so confused as to it's meaning. Can anyone give me an better understanding please? This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.