CarolinaBlueEyes Posted January 19, 2007 Report Share Posted January 19, 2007 Last year I got a dunning letter from scott Lowery on an MBNA account.. that was in sept 05,, in dec on the 23 05 he tried to send me certified documents to sign I was out of town for christmas and they were sent back... (I called UPS they told me who was on the tracking number slip left at my door)I went to a local lawyer to find out what he wanted and how to settle it, they said they "would be in touch".. they never spoke to my lawyer again and did not return calls... or respond to his letters.. he closed the file and dropped the caseMY SOL on this is pretty much up.. I called a NACA lawyer today to find out what is going on with this case since its been a little quiet.. I find out LOWERY and CACH.. have not only gone to NAF but got an award.. HOW.. I was never notified... EVER.. in fact I lived in the same place for 11 years and of course lowery has my address... I dont know the details yet... on the amount or when but it was filed within the last year according to the lawyer.. he called them today... can anyone tell me WHAT NOW?? they never mentioned this to my lawyer at the time.. I checked with him today.. HOW can they award anything if I have NOT been mailed, called.. etc nothing!!!! Link to comment Share on other sites More sharing options...
willingtocope Posted January 19, 2007 Report Share Posted January 19, 2007 The really bad news about the whole arbitration process is that its not the legal process. They can pretty much do whatever they want because they got to write up the rules that say what they can do.The not so bad news is that before this scam has any real effect on you, it needs to be turned into a judgement. So their next step would be to take the award to court. Hopefully, your lawyer will be all over that.... Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 The really bad news about the whole arbitration process is that its not the legal process. They can pretty much do whatever they want because they got to write up the rules that say what they can do.The not so bad news is that before this scam has any real effect on you, it needs to be turned into a judgement. So their next step would be to take the award to court. Hopefully, your lawyer will be all over that....thanks. he thinks we have a shot at a counter suit regarding the way this situation has gone... I just dont know what to do at this point Link to comment Share on other sites More sharing options...
willingtocope Posted January 19, 2007 Report Share Posted January 19, 2007 Well, you're probably going to need a lawyer to fight it. The major complication I see is that their attempt to turn the award into a judgement will be based on the award...meaning, they'll probably try to say that's what will determine the SOL, not the underlying debt. There have been some recent court cases (in the 9th circuit, I beleive) that have ruled against the whole abitration process for CC debt. Some of them are cited on the forum here... Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 Well, you're probably going to need a lawyer to fight it. The major complication I see is that their attempt to turn the award into a judgement will be based on the award...meaning, they'll probably try to say that's what will determine the SOL, not the underlying debt. There have been some recent court cases (in the 9th circuit, I beleive) that have ruled against the whole abitration process for CC debt. Some of them are cited on the forum here... looked those up and sent them to the lawyer... can it be vacated if I was never told about this?? Link to comment Share on other sites More sharing options...
willingtocope Posted January 19, 2007 Report Share Posted January 19, 2007 can it be vacated if I was never told about this??I'm pretty sure the arbitration doesn't require your participation...so, no, I think they've got their award. As I said though, that doesn't mean anything until it becomes a judgement... Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 I'm pretty sure the arbitration doesn't require your participation...so, no, I think they've got their award. As I said though, that doesn't mean anything until it becomes a judgement...wow how is that even possible.. they can just do what they want and not notify anyone on this.. ??and if it happened sometime in the last 9 months or so why have I not be served.. I KNOW there is not judgement at the courthouse regarding this.. I checked.. so are they sitting on it? if so whyone more stupid question.. they can't go into my bank account etc.. until it is a judgement is that correct? Link to comment Share on other sites More sharing options...
willingtocope Posted January 19, 2007 Report Share Posted January 19, 2007 The primary purpose of the arbitration process was to circumvent all those time wasting details like "summons", and "fair trial", and all that. The thing is, it works so well, that there is probably a backlog of awards for them to deal with. It might take awhile before it goes to court...As far as I know...they can't just walk into a banik with an award, and grab your accounts. They need a judgement first. However, that's something you should verify with your lawyer as soon as possible. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 The primary purpose of the arbitration process was to circumvent all those time wasting details like "summons", and "fair trial", and all that. The thing is, it works so well, that there is probably a backlog of awards for them to deal with. It might take awhile before it goes to court...As far as I know...they can't just walk into a banik with an award, and grab your accounts. They need a judgement first. However, that's something you should verify with your lawyer as soon as possible.thanks! I did find this.. which tells me there is NO way they can file proof of service since I was not told... what is your take on thisIf a debtor decides to call the NAF, they can ask if the Claimant has filed “Proof of Service.” If they have not, the Debtor may ask the NAF representative to explain the debtor’s options. According to the NAF’s rules posted on their website, the Claimant only has 90 days from the date of filing the Claim to submit a proof of service form to the NAF. If they don’t submit the form in time, then the NAF may dismiss the Claim, which means the Creditor must re-file. However, even if the Claimant has not filed a proof of service, if the debtor files a response to the claim the Claimant is no longer obligated to file the proof of service. In other words, by filing a response, the debtor is in essence confirming that they received the claim. Link to comment Share on other sites More sharing options...
AISLE4 Posted January 19, 2007 Report Share Posted January 19, 2007 I read somewhere on this board about pre-judgement freezing of assets. If MBNA has an arbitration award, they may be able to freeze (not seize) assets before getting the award turned into a judgement. This is a state issue. This probably shouldn't be a concern of yours since the Carolinas are consumer friendly. Link to comment Share on other sites More sharing options...
admin Posted January 19, 2007 Report Share Posted January 19, 2007 You should be able to prevent this judgment I would think. Arbitration is not a legal process - but it still has rules, of which they violated the most fundamental. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 You should be able to prevent this judgment I would think. Arbitration is not a legal process - but it still has rules, of which they violated the most fundamental.I dont think you can pre-freeze assets here in NC.. .but if I am wrong I am sure someone will let me know.. but I have never heard of this happening here..admin thanks.. I hope your right... they have not done anything with it,, but thats like waiting for a shoe to drop Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 you know .. something I dont understand here at allMy card was with wachovia back in 86.. I had NO arb agreement.. the card was sold to MBNA.. but I never used it as MBNA.. ONLY paid on it , which I would think would keep me out of their arb agreement.. then the account was SOLD to lowery.. he owns it.. not represents it.. how does that arb agreement get moved to CACH (his company)... Link to comment Share on other sites More sharing options...
IHateCAs Posted January 19, 2007 Report Share Posted January 19, 2007 They CAN be assigned the rights of an arbitration agreement. However in your case, I doubt such an agreement exists. You will have to fight this at the district court level when they move to confirm. Since you were never even notified of the proceedings, that's one defense to their claim there. Another defense is that no agreement to arbitrate exists.Of course, why did your lawyer not notify you of this before?At any rate, I think this should be a slam dunk in your favor as well as counterclaims. Plus you got those nice state claims too... Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 19, 2007 Author Report Share Posted January 19, 2007 They CAN be assigned the rights of an arbitration agreement. However in your case, I doubt such an agreement exists. You will have to fight this at the district court level when they move to confirm. Since you were never even notified of the proceedings, that's one defense to their claim there. Another defense is that no agreement to arbitrate exists.Of course, why did your lawyer not notify you of this before?At any rate, I think this should be a slam dunk in your favor as well as counterclaims. Plus you got those nice state claims too...I hired a NACA lawyer.. new to the NACA site so far so good.. he contacted NAF and found that the info was NOT correct.. there is no award.. NAF has a case that lowery filed back in 05 but could not serve me... and they have no proof of service.. also he is requesting what they have however it will NOT constitute being served so he told me NOT to sign for anything.. since UPS and FED EX are not part of the court.. as long as I didnt sign they couldnt get the award...Lowery sat on this.. he filed this two weeks after his dunning letter and when my other lawyer contacted him in march he said NOTHING.. the NACA guy things we have an excellent federal case.. my credit report was changed.. lowery used his law firm to collect on behalf of CACH.. however he OWNED the company at the time and it could be considered a conflict of interest and CACH is not or ever was licensed in my state .. there are a few other things too he wants to file a federal complaint.I wonder would NACA now alert lowery ????someone said it would have been best NOT to call NAF but the lawyer said it could have been railroaded through at this point it can be stopped (hopefully.. he is more optimistic then I am),.. I know they are supposed to be impartial.. but we know what a fairy tale that is.... Link to comment Share on other sites More sharing options...
IHateCAs Posted January 20, 2007 Report Share Posted January 20, 2007 I'm surprised they didn't railroad it through. At any rate, I think trying to force an arbitration claim when no such claim exists will be a violation of 1692e or f. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted January 20, 2007 Author Report Share Posted January 20, 2007 I'm surprised they didn't railroad it through. At any rate, I think trying to force an arbitration claim when no such claim exists will be a violation of 1692e or f.thats what the NACA guy said, he was suprised it wasn't railroaded through,.. the girl he dealt with said there was no proof of service.. so they are waiting on that,, (keep waiting,, I was told sign for nothing and I am not)... he got a copy of it at his office but made it clear that in NO way did that indicate proof of service.. he faxed that to her after he confirmed it by phone (I( dont trust those people).. not to mention lowery is collecting on behalf if his two companies.. CACH and collect america.. they are not licenesed in NC.. even though he is been careful to use his name .. not is companies...I wonder though.. even though they say they are impartial.. YEAH RIGHT... do they contact the other side now that we kicked that sleeping dog? Link to comment Share on other sites More sharing options...
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