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(somewhat urgent) can I still pull the arbitration card?


mykidsmom
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You have two big problems you face:

1. Your lawyer sucks. Drop him like a hot potato. If you admit everything in the answer, you lose, period. They will get everything they are asking for.

2. Since this is a business card, the normal consumer protections do not apply. In court you can be made to pay the attorney fees of Cap1, and in arbitration you would have to pay at least 50% of all fees.

The best way to avoid all of this is admit that you used the card for personal and household expenses and not business. Did you buy fast food, laundry detergent, things that you would use around the house? There is a member on here named Trueq. He has a post on why if you used if for household and consumer items, you can argue it is a consumer debt and not a business.

Work on that BEFORE you file for arbitration. If you go to arbitration as a business, it will be expensive for you.

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Wow..you are getting SCREWED here. You can fix the situation, though.

1. Get rid of the lawyer. Pronto. In all honestly, he's probably trying to set you up to file BK (so he can 'help' you through it while taking more of your money).

2. As the poster above said...yes, you want to show that you used the card for personal expenses. That way you qualify for the consumer rules in arb--and thereby turning arb into a HURDLE for the bank.

3. File a motion to compel arb RIGHT AWAY. Debt attorney gets tossed out of court. Bank pays BIG TIME fees. You've then set yourself up for something in the arena of a 10% settlement or mutual dismissal (if you can get some violations on the law firm or FCRA violations on Crap One.)

Whatever you do..LOSE the jack@$$ lawyer! Good luck..you can take control and come out ahead.

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You have two big problems you face:

1. Your lawyer sucks. Drop him like a hot potato. If you admit everything in the answer, you lose, period. They will get everything they are asking for.

2. Since this is a business card, the normal consumer protections do not apply. In court you can be made to pay the attorney fees of Cap1, and in arbitration you would have to pay at least 50% of all fees.

The best way to avoid all of this is admit that you used the card for personal and household expenses and not business. Did you buy fast food, laundry detergent, things that you would use around the house? There is a member on here named Trueq. He has a post on why if you used if for household and consumer items, you can argue it is a consumer debt and not a business.

Work on that BEFORE you file for arbitration. If you go to arbitration as a business, it will be expensive for you.

Always answer, just research a bit before you do. LLC is tricky and you need to know the laws.

You can easily get a 2008 copy of the CC agreement from this forum. You will need to PM me, trueq or some other members with your email and we can forward it out.

You should research how much you would actually be liable for personally with this buisness card. LLC offers protection, however, I am not sure how much the individual is protected. Just because your name is on the card doesn't mean you lose those protections. Don't give up any of your rights until you are SURE exactly what protections you have under a LLC.

60% offer from Patenaude and Felix isn't all that bad. These guys are normally blood suckers. So if you can afford it and YOU actually would have to pay it under the LLC then you might wish to consider it as an option. Since, they are blood suckers normally it might also be a sign they don't have enough on you as well.

Arbtration may be the way to go just consider the facts before you choose the route. You can always sign an affadavit swearing under perjury that the card was used for household goods etc.. This would be good enough to ensure consumer min standards, however, alot of potential changes are occuring in the Arbitration Forums so nothing is a sure thing. BEFORE YOU DO THIS KNOW THE RULES BEHIND LLC AND YOUR PROTECTION. YOU DON'T WANT TO WAIVE YOUR FINANCIAL PROTECTIONS!!!

The key point is research all your option, in court and in arbitration. For 13k more then likely the OC will enter into arbitration, however, you may be able to negotiate a better deal for yourself.

IF THOSE ARE YOUR PERSONAL CASE FACTS THEN DELETE THEM!!!! DON'T POST DETAILED SPECIFICS. IF YOU SAY ANYTHING IN HERE THAT CAN LEAD BACK TO YOU THEY WILL USE IT AGAINST YOU!!!. YOU CAN POST A SUEDO VERSION WITH NON EXACT DETAILS.

Edited by Bradly1
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As chucky said and let me point out that #1 it's NOT too late to Arbitrate and waive there rights and make them burn cash. #2 You may easily find a contract here for Capital ONE "IE you dont need an "Original", it is Crapy1 to prove otherwise... talk to trueq if he has time, he is very nice and very helpful to all

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As chucky said and let me point out that #1 it's NOT too late to Arbitrate and waive there rights and make them burn cash. #2 You may easily find a contract here for Capital ONE "IE you dont need an "Original", it is Crapy1 to prove otherwise... talk to trueq if he has time, he is very nice and very helpful to all

Crap One in the CC agreement actually gives you the right to use copies of the CC agreement for use in litigation and arbitration. So no worries there, by signing an affadavit stating this is a true copy of your CC agreement they would have to prove that another applies.

however, 2005 and 2008 Arbitration Provision are bascially identical if not.

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Lawyers take the road that makes them $$$. Use them for consultation, but in debt collection they are overpriced and if you do your homework and have the drive like you have for 3 days, your ahead of the game. Just my opinion. Anyway you have what the Credit Card companies want $$$ and what they don't like TIME! Make them BLEED $$$. BK at the end if they succeed, but it's a long long road for them just to "prove a point"...

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I feel stuck with the lawyer though... I need to file an answer now, and even though some posts (dixiechicks and others) spell it out, I am having a hard time figuring out what my affirmative defenses should be. Can anyone help in giving me ideas for these?

Oh, and I forgot to add that the LLC is in my name only. Our house and car are in my hubby's names (only). I have no income (stay at home mom) other than my hobby, but as you can see I have debt because of it. Does this help?

Thank you,

MyKidsMom

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I feel stuck with the lawyer though... I need to file an answer now, and even though some posts (dixiechicks and others) spell it out, I am having a hard time figuring out what my affirmative defenses should be. Can anyone help in giving me ideas for these?

Oh, and I forgot to add that the LLC is in my name only. Our house and car are in my hubby's names (only). I have no income (stay at home mom) other than my hobby, but as you can see I have debt because of it. Does this help?

Thank you,

MyKidsMom

Question: Did P&F ever contacted you prior to a service?... demanding a payment?.... in writing or by the phone?

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THIS IS THE DUMBEST CONSUMER LAWYER ON THE PLANET! DEMAND YOUR MONEY BACK! YOU SHOULD SUE HIM FOR MALPRACTICE!

1.) you should deny you personally owed and guarantee the debt in the answer. Cap1 will need to come up with the personal guarantee.

read this blog on this issue:

http://michaelmack.com/2010/02/08/business-credit-card-debt-and-other-business-debt/

2.) you could admit the debt to the LLC...who cares if they get a judgment against defunct company

3.) your so called lawyer is completely wrong about the effectiveness of arbitration!

Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299233&highlight=scoreboard

You may tell your lawyer that I said to pull his head out of his posterior before he takes his next consumer client!

4.) your so-called lawyer DID NOT READ THE CAP1 AGREEMENT!!!!! It prohibits Cap1 from tagging you with legal, arbitration, and lawyer fees should you lose in arbitration. In fact, our experience has been, on the one Cap1 JAMs arbitration that went all the way, DENIED these motions by Cap1 and denying cap1 interest and fees if cap1 cannot produce the statements and your signature!

So tell your lawyer to get his head out of his posterior!

5.) I have Cap1 agreement.

I'll send you a PM with my email.

Pardon my spelling...this thread got my venom going on the stupidity of the legal profession.

Edited by trueq
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I feel stuck with the lawyer though... I need to file an answer now, and even though some posts (dixiechicks and others) spell it out, I am having a hard time figuring out what my affirmative defenses should be. Can anyone help in giving me ideas for these?

Oh, and I forgot to add that the LLC is in my name only. Our house and car are in my hubby's names (only). I have no income (stay at home mom) other than my hobby, but as you can see I have debt because of it. Does this help?

Thank you,

MyKidsMom

Yes, that helps a lot for a negotiation position! If the LLC has no assets and you have no income, that is a strong bargaining position for a settlement. Make you lawyer earn whatever you are paying him. Tell him you need to file an answer that denies the claim. He works for you not you for him. Tell him your strategy is to deny the claim and attempt to settle for a low percentage since you have no attachable assets or income.

I would still recommend firing him. But if you really are "stuck" with him, tell him it is malpractice not to represent you to the best of his ability.

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Follow what Trueq just posted ... straight arbitration on this will result in the poster having to cough up half of all arbitration costs in either JAMS or AAA. Folks business and consumer are two very different animals in arbitration {read the rules of arbitration from JAMS and AAA}! Follow what Trueq is posting once again and I stress this ... This is a defunct LLC ... Let them prove you guaranteed the debt!Trueq will agree that regardless of what the underlying debt was used for the arbitration forums could make you pay half of all costs until an award is rendered!

Edited by MG05
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Oh I was so hoping that Trueq and MG05 would provide input, and they did! :) Woohoo, thank you!!!

But I am a little unsure about MG05's post - did you say that if I follow Trueq's ideas (which sound very right to me) then I *will* end up paying half of arbitration costs, or that I will *not*? Is this where it becomes important whether I "pierced the veil" of the LLC by using the card for personal *and* business expenses?

Also, is this important? ---> the LLC is not defunct because I am still trying to sell my made-at-home items (or is it?).

Thank you in advance for clarifying for me. And thank you so much for all the input I am getting, it is helping me get confident! I really welcome it...

I unfortunately am not the business expert as Trueq is … I believe he has or had a business so he knows the ins and outs. I am however very versed on consumer arbitration and I know that either forum could {emphasis added} make you pay half of the arbitration expenses as it would be a business to business arbitration. Now here is where it becomes sticky … you could say it was for personal use … then you admit to the debt because you admit to using the card for personal use … Or as Trueq points out … deny the card and say it was a business card that you did not guarantee. I believe that the OC will try and make it a business to business arbitration and that is not good for you … as you will have to pay half expense until award is rendered. If I were you … PM Trueq and come up with a workable solution for you … something your comfortable with. YES you can pull the arbitration card … but you might have to outlay some cash for the negotiation power. Just keeping it real!:)

This is what I mean to follow from Trueq:

1.) you should deny you personally owed and guarantee the debt in the answer. Cap1 will need to come up with the personal guarantee.

read this blog on this issue:

http://michaelmack.com/2010/02/08/bu...business-debt/

2.) you could admit the debt to the LLC...who cares if they get a judgment against defunct company

Edited by MG05
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To MG05: thank you for clarifying...

To all: my lawyer has not included even *one* affirmative defense, even though I brought it up casually (see the attachments above). So, I re-read Dixiechick's "guide" and see a list of affirmative defenses. Although I read and re-read them, there are some that I just do not understand. Would it still be okay to copy and use them in my answer? I would like to keep my options open in case I need to use any of them later (hopefully when I am even better educated!)....

Thank you kindly, MyKidsMom

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edited to add: my lawyer also said that if I lose in JAMS arbitration (assuming it goes that far), that I will be responsible for *both* parties arbitration fees... I did not come across this in my reading, is this true? thanks!

This is the only good piece of advice he gave you, is he correct about this.

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What assets does the LLC have? If it is just the materials and the items that you produced to sell, then let the business go defunct. The business can cease to exist the way it is. It can go bankrupt, or loss all of it's assets. Afterwards, you can start a new business with a new name.

So the best strategy may be to vigorously fight personal liability.

Make that part of your affirmative defenses. That this is the businesses expenses and you are not personally liable for them. If you can get that stipulated or insure that they cannot prove that you are personally liable, you may be able to allow them to proceed in court and avoid the cost of business to business arbitration. And if you loose, only the business and it's assets are at risk.

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To MG05: thank you for clarifying...

To all: my lawyer has not included even *one* affirmative defense, even though I brought it up casually (see the attachments above). So, I re-read Dixiechick's "guide" and see a list of affirmative defenses. Although I read and re-read them, there are some that I just do not understand. Would it still be okay to copy and use them in my answer? I would like to keep my options open in case I need to use any of them later (hopefully when I am even better educated!)....

Thank you kindly, MyKidsMom

You can paste 50 affirmative defenses if you want but that is not practical ... find the ones that fit your case and use them. I recently was able to see a counterclaim from a big time bank in JAMS arbitration {not my case} and let me tell you what they listed over 41 affirmative defenses to include constitutional law and due process violations. This bank had over 30 pages of answers to the original complaint. It was amazing how these seasoned attorneys worked the pleading. I will use portions of it to answer any future complaints … amazing piece of work. This is why I say you really have to be on your game in arbitration … they fire local counsel and hire better {slightly more competent} attorneys for arbitration. Search the web for the defenses you want to use and make sure they fit the case is the best advice I can give.

Edited by MG05
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The LLC has very few assets (just supplies).

Quick question: would it be better (cost less) to go to court and let the LLC go defunct (does this mean bankruptcy for the LLC?) or to invoke arbitration? (Keep in mind this is a business card, with my personal name on it too). Does this affect what I include in my answer?

Thank you kindly!!!!

MyKidsMom

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I'll say it again. FIRE YOUR LAWYER. We are not in the the best position to offer you legal advise. Just options and opinions on choices you may have. An competent attorney should be able to look at your specific situation and offer the best course of action in your case.

It's in your best interest to get specific help. We will keep chiming in with options and opinions for you to present to your counsel.

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Chuckygee you are right. The only problem I have is that this answer is due NOW! It took this attorney 2 weeks to get to the "answer" point... how long might it take to find a new one and get him/her to the answering part? This is why I feel uncomfortable switching until after the answer is in (I do not live in a large metropolitan area, and thus access to numerous lawyers is more limited).

And so, I have to rely on myself to tell my lawyer what to include. And that means learning from you all. Even though there is a risk to that, since you are not lawyers (yup, I know).

See my position? I feel stuck, but only until my answer is complete :)

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