nickysduck2

arb election ignored

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I just recieved a letter in the mail today from local attorney who is seeking to retain my services.She claims that public records indicate I have been sued by calvary portfolio services although I may not have been served yet.I have not been served and want to stop this.I did recieve a letter from a local lawfirm back in october saying calvary portfolio had retained them to collect the amount I owe and that i had 30 days to dispute.I did dipute and sent them a letter back disputing the debt and invoking my arbitration rights so why are there public records stating that i am being sued when i elected my arb rights? What do i do? I have not been served anything.

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Check with your local court house.

That happened to me, and sure enough there was a complaint filed.

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Basically, its up to the judge to decide if you get your arbitration rights, You probably still have to go to court and have the judge rule on whether or not arbitration apllies TO YOUR PARTICULAR CASE. If he agrees, he'll stay his proceedings pending the outcome...

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How long does it take for me to be served? If there is record of a complaint in public records why have i not been served yet? I am so worried about my checking account being seized.

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How long does it take for me to be served? If there is record of a complaint in public records why have i not been served yet? I am so worried about my checking account being seized.

How long ago was the complaint filed?

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I honestly don't know when the complaint was filed.I recieved a letter from Calvary's lawfirm back in October telling me they had been retained to collect the debt and I immediantly dv'd them and elected arb. I was shocked to get a solicitation letter from a bankruptcy attorney telling me there is public record of me being sued by Calvary but had they not sent that solicitation letter i'd never have known.I am going to call that attorney and ask her when the complant was filed today and see if she will tell me.Not sure what the law says in TN but i clearly elected arb and mailed it with delivery confirmation and can prove they got it so they are ignoring my arb election.

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Not sure what the law says in TN but i clearly elected arb and mailed it with delivery confirmation and can prove they got it so they are ignoring my arb election.

The fact that you "elected" arbitration (regardless what you may read elsewhere) means absolutely nothing. In practical effect, it's no different than you writing a letter to the plaintiff telling him you choose not to participate in the lawsuit. It doesn't mean squat.

The other side filed suit. Their argument will be that no valid arbitration clause exists. Now, if you believe one does, you must convince the court.

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I have a copy of the cardmember agreement that states the arbitration clause.It clearly states that "if either we or you elect arbitration,neither you or we shall have the right to litigate that claim in court." I elected so they have no right to litigate or sue me in court and are anyway. This is a violation and I will use it to my advantage.

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Maybe. But as I said, your first problem is to get the court to agree that clause applies in YOUR PARTICULAR CASE. Are the dates right? Did the CC remove the clause from the agreement (in the fine print, which you agreed to by not saying you didn't agree?)

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It is normal to get ads for attorney's before being served, at least where I live. As far as the arbitration issue, what everyones said is true.

When you are served, you will need to answer the summons in court and include affirmative defenses. One of them could be "Lack of Subject Matter Jurisdiction". This is only an affirmative defense. You will still need to successfully motion the court to "Compel Arbitration" with either a dismissal or a stay depending on your jurisdiction.

There is an Arbitration section under the section "Is There a Lawyer in the House." This discussion would be better there. There are examples of successful motions in that section.

I don't know if Willingtocope has the ability to move this thread to there or not. If he cannot, start a new thread there so I can abide by the rules of the board.

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If I got solicitation from a lawyer on anything to do with Calvary filing suit against me, I would probably deem it to be a setup in some sort of way.

Just me. Just my opinion.

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I called the court and there is a suit against me scheduled for late this month.I was told I can go to the sherrif's office to pick up the summons instead of being served.I have never been sued before and this is scary but i feel confident i can avoid a default judgment.I have all the proof i need that they violated my fdcpa rights by litigating in court after i selected arb.

Im also thinking i may have them on another violation.Calvary portfolio services is the CA who purchased my debt from HSBC.When they first notified me they were collecting the debt I requested validation and asked that they prove the debt was mine and that they have the authority to collect on this debt and they responded by sending me several credit card statements.

Thats all they sent as validation.Several months later when Calvary's lawfirm contacted me to inform me they had been retained to collect the debt for Calvary they gave me 30 days to dispute and that is when i sent them a DV letter electing arb and requested validation which included proof they own this debt,the debt is mine including statements going back to a zero balance and anything with my signature.They never sent me anything at all.They never responded. Don't they have to validate as well?

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What section of the FDCPA was violated?

They violated the section of the cardmember agreement that states if them or i elect arbitration neither of us has the right to litigate a claim in court.

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Please be ready to defend your claim of an FDCPA violation before you counterclaim the Plaintiff...

RL

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Please be ready to defend your claim of an FDCPA violation before you counterclaim the Plaintiff...

RL

Thats why Im here at this forum so I CAN be ready. Im am reading all i can and need all the help i can get.Im certainly not experienced in this situation and welcome any and all advice.Do you have any suggestions?

Edited by nickysduck2
mispelling

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Sure...read the FDCPA and be prepared to point out what section of it the Plaintiff has violated by filing suit after your election of arbitration

Knowing what you feel they've done is a good thing...knowing why you feel they've done it is more important. Always be prepared to defend any position you plan on taking. Know and understand what they violated and why what they did was a violation. Look up case law in your state that supports your position and will teach you how your state interprets and applies laws.

Good luck

RL

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They violated the section of the cardmember agreement that states if them or i elect arbitration neither of us has the right to litigate a claim in court.

In another post, you asked for suggestions to help your case. I would like to suggest that following the advice of some of our more quixotic posters may not be in your best interest.

Before you attempt to argue that a collector has violated the FDCPA because your arbitration letter was ignored, find some supporting authority for your position. If you don't, then by the time you realize you've taken the wrong advice, it may be too late.

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I'm going to roll in here and ask, what DOES she have? Affirmatives? motions?

I'm also new at this, and so far I seem to understand there are 3 parts to a suit, 1) deny or admit or say I don't know to their allegations; 2) use affirmative defenses; 3) motion, or ask the court to do something, like, say, compel them to arbitration.

Violations of code are another suit that you bring outside of the suit the CA/lawfirm is bringing to ask for judgement on alleged debt?

nickysduck, I seem to think you are a woman, so, sorry if I'm totally wrong! My point here is to ask, "if nickysduck walks in without a valid response to their lawsuit, (s)he will lose, so, what sorts of things would seem to apply here?" My advice, as another newbie, would be to look at some responses to other suits, get your paperwork as fast as you can, and sit down and be prepared to answer line by line in a properly formed document to submit to the court.

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In the FDCPA Part 807 2(A) -The false representation of the character, amount, or legal status of the debt.Can't I argue that filing a lawsuit is a misrepresentation of the legal status based on the language of the contract that waives a court of law as an available venue?

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nickys, don't know- maybe?? As part of your response as a point? In what part of your response- affirmative defense? I'm still as far back as dealing with a first CA... and never want to have to defend, but I have been reading a lot about it just in case. I do know there is a specific format, and each point THEY make about you in their suit (and is "suit" even the right word? I don't know; I am SO not a lawyer!) YOU have to answer. Then, you have to make assertions in the second part about why they have no business dragging you to court; and lastly 3 you have to ask the court to toss their case in the can and accept your motion- in this case, to elect arbitration, for one.

I couldn't find it right now, but on one post somewhere in my endless post reading, I saw a win post by someone who really knew how to write up their court papers, and knew their defenses and arguments, and won. But that was after seeing one person ahead of them who had a good point, and argued/stated it to the judge, and lost. Because it wasn't formatted properly and supported, and I don't think the person even made a motion- can't remember.

When I saw your post, and realized you only had a month (less?) to prepare, that post sprang to mind and I just wanted to share.

So, if FDCPA Part 807 2(A) is one part of your reasoning for the court that you should have never come to court, and then you make motion(s) asking for their case to be ...what? dismissed? ...and another motion for the judge to compell them to arbritration....?

But you still have to answer their stuff against you specifically, and if it were me, I'd look for ways to then defend that back against them.

And from everything I've read, the arbitration clause dated to ...when you last made a payment? ...to right after you defaullted? What was the policy for your account at whatever proper time and can you provide a copy of that or proof of that?

I'm not the person to give answers- but I can sure ask questions!! Nickysduck wishing the best, and I will be following to see how it turns out for you.

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