I was served

[brighteyes1977]

1. Who is suing you? FPC financial, f.s.b.

2. For how much? over $10k under $25k (limited civil case)

3. Who is the original creditor? FPC financial, f.s.b.

4. How do you know you are being sued? Served summons

5. How were you served? Were you served? personally buy a guy

6. What was your correspondence (if any) with the people suing you before you think you were being sued? CA/lawyer sent letter to hubby to try and collect, he sent DV with modified C/D well within 30 days. Hubby received validation 2 days later. Same day I received collection letter from same CA/Lawyer, I sent DV and modified C/D 25 days later (family emergency). Received validation a couple of days later.

7. Where do you live? Cali

8. When is the last time you paid on this account? 7/09

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). It just states it has been filed

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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? There are two Causes of Action, Breach of Contract and Common Counts

13. What evidence did they send with the summons? An affidavit? A statement from the OC? Anything else they attached as exhibits? They sent two invoices stating that by signing below that I agree to charging the amount to the lender and that I agree to pay the lender the amount stated. They also attached an application that was blank. When I Dv'd them they also sent blank applications.

14. What is the SOL on the debt? To find out: The work preformed and the contract was signed in AZ, we live in Cali now. Az is 6 years and Cali is 4, for written.

I have a few questions;

1.) DH received a collection letter on 7/14/10, sent dv on 8/2/10, received dv from lawyer on 8/6/10. I received a collection letter (for same account) on 8/6/10, sent dv on 9/3/10 and received dv from lawyer on 9/9/10. We received a summons addressed to both of us that was filed on 8/25/10. Isn't that a violation since they filed for a lawsuit before they even validated my debt or before my 30 days were up? Or does it go by who is the primary on the account, although they do lists us as defendants

2.) I have two invoices attached (there were only two transactions), that state price and services rendered. I did sign saying I agree to pay FPC financial, although they don't have the application attached stating that I even opened up an account. In the two DV responses that the lawyer sent me and the summons it only includes a blank application. Do I ask them to show that proof that I opened the account?

3.) In my and hubby's DV letter we elected for arbitration. Did I mess up because I did not file a claim with NAF or AAA?

[Guest usctrojanalum]

1.) DH received a collection letter on 7/14/10, sent dv on 8/2/10, received dv from lawyer on 8/6/10. I received a collection letter (for same account) on 8/6/10, sent dv on 9/3/10 and received dv from lawyer on 9/9/10. We received a summons addressed to both of us that was filed on 8/25/10. Isn't that a violation since they filed for a lawsuit before they even validated my debt or before my 30 days were up?

Nope.

2.) I have two invoices attached (there were only two transactions), that state price and services rendered. I did sign saying I agree to pay FPC financial, although they don't have the application attached stating that I even opened up an account. In the two DV responses that the lawyer sent me and the summons it only includes a blank application. Do I ask them to show that proof that I opened the account?

You can request the application but in reality they are not going to need it. I'd be concerned that they have documents with your signature on it.

3.) In my and hubby's DV letter we elected for arbitration. Did I mess up because I did not file a claim with NAF or AAA?

Can't file a claim with NAF or AAA anyway, they do not accept consumer arbitrations. Arbitration is a route you may want to look into.

[brighteyes1977]

Can't file a claim with NAF or AAA anyway, they do not accept consumer arbitrations. Arbitration is a route you may want to look into.

Those are the two listed that they use on the agreement form, do they have the option of changing their minds on which one to use, I.E. one that takes consumer arbitration's?

Edited September 16, 2010 by brighteyes1977
Didn't quote right

[Guest usctrojanalum]

Those are the two listed that they use on the agreement form, do they have the option of changing their minds on which one to use, I.E. one that takes consumer arbitration's?

This has been hotly contested. it depends on the language of the arbitration provision. as an affirmative defense you can bring up that this action is barred from being litigated in the courts because of a private arbitration dispute resolution provision in the cardmember contract and when NAF and AAA are shown to not take consumer arbs say you want JAMS.

[brighteyes1977]

Could you take a look at this. okay I can't get it to attach, how do I do that?

It seems to me that they are stuck with arbitration since I elected it, correct?

Edited September 16, 2010 by brighteyes1977
attachment

[brighteyes1977]

This was printed 4/5/2010, I defaulted 9/2010, so I need to find one that was printed prior to 9/2010, correct? Plus the one that is attached reads differently.

Changing This Agreement. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. FPC may change this Agreement, including the Annual Percentage Rate and the Interest Charge Calculation, at any time. If FPC do, FPC will provide you prior written notice. To the extent that the law permits and FPC indicate in our notice, the changes will apply to your existing Account balance as well as to future transactions.

ARBITRATION OF DISPUTES. In the event of any past, present or future claim or dispute between you and us arising from or relating to your Account, any prior account you have had with us, your application, the relationships which result from your Account or the enforceability or scope of this arbitration provision, of the Agreement or of any prior agreement, you or FPC may elect to resolve the claim or dispute by binding arbitration.

This includes any such claim or dispute, whether based upon contract, property, tort, statute, common law or equity, other than a claim relating to our right to repossess the merchandise purchased through your account by self-help, if permitted, or by judicial process. The parties agree and understand that the arbitration shall have all Powers provided by law and the Contract. These Powers shall include all legal and equitable remedies including, but not limited to money damages, declaratory relief, and injunctive relief.

The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have the right or opportunity to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein.

IF EITHER YOU OR FPC ELECT ARBITRATION, NEITHER YOU NOR FPC SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION.

NEITHER YOU NOR FPC SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMER WITH RESPECT TO OTHER ACCOUNTS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

Even if all parties have opted to litigate a claim in court, you or FPC may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit, and nothing undertaken therein shall constitute a waiver of any rights under this arbitration provision. Arbitration may be elected at any time , regardless of whether a lawsuit has been filed, unless the lawsuit involving that claim or dispute has resulted in a final judgment. FPC will not invoke our right to arbitrate an individual claim you bring in small claims court or your state's equivalent court, if any, so long as the claim is pending only in that court and does not exceed $5,000.

Your Account involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act (FAA). The arbitration shall be conducted by JAMS or American Arbitration Association (AAA), at the option of the party electing arbitration, in accordance with their procedures in effect when the claim is filed. As of "date of print", for a copy of their procedures, to file a claim or for other information, contact AAA’s customer service at 1-800-778-7879 or visit their website at www.adr.org or contact JAMS at 1-800-352-5267 or by visiting their website at www.jamsadr.com. All claims may be filed at any JAMS or AAA office. At your written request, FPC will advance any arbitration filing, administrative and hearing fees which you would be required to pay to pursue a claim or dispute as a result of FPC’s electing to arbitrate that claim or dispute. The arbitrator will decide who will ultimately be responsible for paying those fees. In no event will you be required to reimburse FPC for any arbitration filing, administrative, or hearing fees in an amount greater than what your and FPC’s combined court cost would have been if the claim had been resolved in a state court with jurisdiction.

Any arbitration hearing will take place in the federal judicial district where you reside. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. If requested by any party, the arbitrator shall write an opinion containing the reasons for the award. The arbitrator's decision will be final and binding except for any appeal rights under the FAA and except that if the amount in controversy exceeds $100,000, any party may appeal the award within 30 days to a three-arbitrator panel which shall review the award de novo. The costs of such an appeal shall be borne by the appealing party regardless of outcome. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction.

Our rights and obligations under this arbitration provision shall inure to the benefit of and be binding upon our parent corporations, subsidiaries, affiliates, predecessors, successors, assigns, as well as the officers, directors and employees of each of these entities, and will also inure to the benefit of any third party named as a co-defendant with us or with any of the foregoing in a claim which is subject to this arbitration provision. Your rights and obligations under this arbitration provision shall inure to the benefit of and be binding upon all persons contractually liable under this Agreement and all Authorized Users of the Account. This arbitration shall survive termination of your Account as well as voluntary payment in full by you, and legal proceedings by us to collect a debt owed by you, any bankruptcy by you and any sale by us of your Account.

[Guest usctrojanalum]

or contact JAMS at 1-800-352-5267 or by visiting their website at www.jamsadr.com. All claims may be filed at any JAMS or AAA office. At your written request, FPC will advance any arbitration filing, administrative and hearing fees which you would be required to pay to pursue a claim or dispute as a result of FPC’s electing to arbitrate that claim or dispute. The arbitrator will decide who will ultimately be responsible for paying those fees. In no event will you be required to reimburse FPC for any arbitration filing, administrative, or hearing fees in an amount greater than what your and FPC’s combined court cost would have been if the claim had been resolved in a state court with jurisdiction.

The above is what is important, I am not a big proponent of arbitration - but I think you would be wise to explore JAMS here.

[nobk4me]

Electing arbitration does not mean you have to initiate it.

At this point, you have been sued, and you have to deal with the court case. There are procedural motions you can file with the court in regard to arbitration. Go to the arbitration section and read up on the strategy, and to debtorboards.com, where there is also an arb section.

[brighteyes1977]

I have done more reading today/tonight and I'm slightly cross-eyed. I have been on other boards and researching Arbitration. I find myself writing questions on this board and finding the answers in the question I write or just soon after I post it.

I really want to just get rid of this debt and I want to settle and move on. But since the CA/Lawyer was sue happy, I didn't get the opportunity to even ask for a settlement.

Do I wait until I file written response of something along the lines of MTD because of initiating the arbitration clause, to see if the Lawyer will settle outside of court/arbitration? Or do I finish what I started and dive head first into arbitration?

[nobk4me]

Go the MTD/stay or MTC route. You have a case against you in court, and your first priority has to be to dismiss or stall (stay) it. There is no sense in starting another proceeding (arbitration) when you have their case against you which must be addressed.