Would appreciate your advice/help with what to do next...

[OnTheWarPath]

Been surfing these board for the past 6 months or so and you all are awesome !! I have gone from being terrified to being able to calmly understand the situation I am in and the fight ahead of me. Without the information from this board I'd still be not eating or sleeping.

I now need to ask all of you for a little direction/advice..

A little background: Account opened 1986..All payments made on time, excellent credit till 2004. After defaulting on several other cards, finance charges started going up on the big "D" card. Continued paying the big "D" but called and cancelled my card to stop escalating finance charges. They told me send my credit card to them and that would freeze the interest rate. I did so but the finance charges continued to rise and late fee's even tho I paid on time. No charges were made since 2004 and continued paying on it monthly till 2008 but the balance continued to go up, finance charge got to 29.9% so I had no choice but to default in Sept 2008..

Fast forward:

Received dunning letter from Attorney representing OC (the big "D") yesterday, have 3 weeks to respond. Letter from OC Attorney stated "Pay their office in full or call OC and work out agreement on payments". Unfortunately, my income ($800+ a month total) is so low that anymore than $50 a month repayment would be impossible.

Debt is $3k. Defaulted Sept 2008. SOL is 3 years. DV sent early 2009. Attorneys for OC sent 3 years of statements and a statement from OC that they did not have a signed contract.

Dec 2010, I hired an Attorney to negotiate with their Attorneys (65%) and they refused. I don't have the funds to pay this, even the amount I originally "had" negotiated to pay. I already tried the negotiation route, it didn't work. Now they want to negotiate ??

Would I be better off ignoring their dunning letter and let them file suit and fight it or should I respond to their letter asking for the OC contract as I know the contract has listed JAMS as their method arbitration. I don't know anything about Arbitration (or even if I qualify). What little knowledge I do have is that JAMS is expensive and it would cost the OC about as much for JAMS as the debt itself.

My only income is Social Security and a small pension. I own an 11 year old car that is state exempt. I do own a home (paid for) that they could take a lien against but seriously doubt they would execute a judgement for $3K against my home. Again, it would cost them more to do that than what the debt is.. Certainly don't want a judgment against me or a lien against my home but I also do not look at it as an earth shattering event

Question is:

Do I go for the gusto and let them file suit and fight with everything I can knowing they probably will win and get their judgement/lien.?

Do I send the OC's Attorney a letter asking for the contract and specifically mention that I want to see the contract to see what it say's about Arbitration. (knowing it has JAMS in it).? Would a letter such as this be looked at as admitting to the debt?

Do I just write a letter electing JAMS Arbitration and hope they see what direction I am headed and find it too expensive to continue collection efforts against me and go away....?

Any suggestion, any help or advice would be greatly appreciated..

Edited March 17, 2011 by OnTheWarPath

[Linda7]

Look at it this way - if you go to court and they win, they have easily gotten a "cheap" judgment. If you elect arbitration, they may still win in the end . . . but, they may decide it isn't worth what it will cost them and they may walk away. Even if you lose in arbitration, they can only get a judgment and then you still have a chance that they might not get it confirmed in court - but, even if they do . . . it will still have cost them a lot more to arbitrate and get their judgment versus a court judgment!

I'd arbitrate for sure! Copy and paste your post over at debtorboards and get their thoughts too. http://www.debtorboards.com/index.php?action=forum

[BV80]

I'm not familiar with arbitration, but from what I've read, Linda seems to understand the process. I would feel very comfortable taking her advice.

[OnTheWarPath]

Thank you Linda7 and BV80 for your response's. I went to the other board as suggested and am trying to update by cross posting. There is so much to mentally absorb and don't want to slip up along the way by taking a wrong step.

I took most of last night to read, read, read everything I could on the Arbitration. Most informing was a series of posting by mod2830, which after reading, printed out and will reread today before taking my next step. From what I have read, the best step to take now (Pre-suit) is to write the OC's Attorney a letter stating " If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause". Apparently, this will stop them from filing suit in the Court system and force them to "private" Arbitration "if" they wish to continue? My question here is, I have already DV'd the first group of Big "D's" Attorneys, do I re-DV this new group they have switched me to with this clause for election to Arbitrate or just a brief letter stating I elect Arbitration? My previous DV did not request a full accounting of the debt, principle, finance charges, charges and payments from the opening of the account (1986). Second question: Being that I do have a copy of the 9/30/2010 contract (found on the internet), there is a clause for private Arbitration in it (naming AAA or Jams). Do I ask for a copy of the OC's agreement or just a brief letter stating "I elect Arbitration with Jams per "Big D's" agreement"? I could use a little help in wording this letter ..Last question: What copy of Big "D's" agreement do I go by, the original agreement back when the account was opened in 1986, the agreement from when I sent my credit card back to them to close my account and freeze the interest rate, which was prior to 2005 or the agreement at the time of default in 2008? Presently the only agreement I have found on line is dated 9/30/2010.

I think once I have these questions covered I will be able to compose my letter. I'd like to get this sent off by USPS certified RRR on Monday before they swoop in and file a suit before the 30 day dunning letter time frame but will first post it for you both to look at to make sure I have dotted all my "i's" and crossed all my "T's":-)...

Again, thank you both for your time and support...

[chiquita55]

Be sure to homestead your home if you haven't. If your home is homesteaded they cannot take it even if they could get a judgment and you could still sell the house if you want to and keep the proceeds as long as you buy a new home and homestead it within 6 months. At least that is the law in California. perhaps it is different in different states.

[BV80]

In SC, if you own your home, you simply have an exemption. The bankrupcty exemption of $50,000 also applies to a judgment. If the home is jointly owned, the exemption will be $100,000.

[Linda7]

Don't say much at all in the letter. You need to leave things left unsaid for them to possibly commit violations! You can't very well dispute this debt as you have already had an attorney working for you in regard to it. You already know it has an agreement, but you don't want to say anything about it. Wait and see if they "own" up to the agreement and honor it. If they don't - they have breached their own contract which you can show if they should try and litigate in court. You also want to set them up to violate by calling you. If they do call after they get their letter, make sure you take a picture of your caller ID, showing the date and their name/number. Make sure to send this letter certified, return receipt requested.

Your Name

Address

Their Name

Address

Date

In Re: Account Number from their correspondence here

Dear Whoever,

If there is an agreement for this alleged account that has any arbitration clause that waives your litigation rights over this alleged debt, I hereby elect it.

All phone calls to me are inconvenient, so all communications need to be by mail.

Regards,

You

Edited March 19, 2011 by Linda7

[OnTheWarPath]

Perfect Linda !! Short and sweet, just what I had wanted to do but was afraid it would not be worded correctly.

This will work !

I have been reading for the past 2 days about Arbitration and trying to absorb all the information and I think it's probably the best route for me to take. There seems to be as many con's as there are pro's so it's weeding through all the info and sorting it out.

Thank you so much for your time and concern.

[OnTheWarPath]

Typed up my letter this am and sent it USPS CRRR. They should have it tomorrow or Wednesday.

Along with the election of JAMS Arbitration I asked for the agreement related to the alledged account and also validation, seeing it's been thru this Attorney, then another Attorney and then back to the first Attorney so I guess it's best to start the process all over as this Attorney had the case a year and a half ago..

I hope this is the right direction to take although everything tells me it will be the only way to get everything out on the table and finalized.

Now it's a waiting game..SOL is up the end of September so they only have 6 months to decide what they want to do...

Will let you all know when I hear..

Thank you for all your help and support. You guys are great !!!

[Prosay]

Been surfing these board for the past 6 months or so and you all are awesome !! I have gone from being terrified to being able to calmly understand the situation I am in and the fight ahead of me. Without the information from this board I'd still be not eating or sleeping.

I now need to ask all of you for a little direction/advice..

A little background: Account opened 1986..All payments made on time, excellent credit till 2004. After defaulting on several other cards, finance charges started going up on the big "D" card. Continued paying the big "D" but called and cancelled my card to stop escalating finance charges. They told me send my credit card to them and that would freeze the interest rate. I did so but the finance charges continued to rise and late fee's even tho I paid on time. No charges were made since 2004 and continued paying on it monthly till 2008 but the balance continued to go up, finance charge got to 29.9% so I had no choice but to default in Sept 2008..

Fast forward:

Received dunning letter from Attorney representing OC (the big "D") yesterday, have 3 weeks to respond. Letter from OC Attorney stated "Pay their office in full or call OC and work out agreement on payments". Unfortunately, my income ($800+ a month total) is so low that anymore than $50 a month repayment would be impossible.

Debt is $3k. Defaulted Sept 2008. SOL is 3 years. DV sent early 2009. Attorneys for OC sent 3 years of statements and a statement from OC that they did not have a signed contract.

Dec 2010, I hired an Attorney to negotiate with their Attorneys (65%) and they refused. I don't have the funds to pay this, even the amount I originally "had" negotiated to pay. I already tried the negotiation route, it didn't work. Now they want to negotiate ??

Would I be better off ignoring their dunning letter and let them file suit and fight it or should I respond to their letter asking for the OC contract as I know the contract has listed JAMS as their method arbitration. I don't know anything about Arbitration (or even if I qualify). What little knowledge I do have is that JAMS is expensive and it would cost the OC about as much for JAMS as the debt itself.

My only income is Social Security and a small pension. I own an 11 year old car that is state exempt. I do own a home (paid for) that they could take a lien against but seriously doubt they would execute a judgement for $3K against my home. Again, it would cost them more to do that than what the debt is.. Certainly don't want a judgment against me or a lien against my home but I also do not look at it as an earth shattering event

Question is:

Do I go for the gusto and let them file suit and fight with everything I can knowing they probably will win and get their judgement/lien.?

Do I send the OC's Attorney a letter asking for the contract and specifically mention that I want to see the contract to see what it say's about Arbitration. (knowing it has JAMS in it).? Would a letter such as this be looked at as admitting to the debt?

Do I just write a letter electing JAMS Arbitration and hope they see what direction I am headed and find it too expensive to continue collection efforts against me and go away....?

Any suggestion, any help or advice would be greatly appreciated..

Google: SOUTH CAROLINA BANKRUPTCY EXEMPTIONS.

You may find that you have so many exemptions, personal and homestead that you have perfect defense.

Check the SC Exemptions, then send a NOTARIZED letter certified, return receipt requested ( to the CA or Attorney) listing your EXEMPTIONS PER SOUTH CAROLINA STATE CODE # ____________________

Your letter just might result in any legal action being dropped.

For a general idea...google "TCA 1870-1871" This is Tenn code, but will give a good idea.

Now if you have trouble finding the SC code, call your local county court clerk and they should be able to tell you the code number.

Now bear in mind that if you arte sued, take a copy of your exemption letter to the court clerk and have them sign, stamp and file it specific to your CASE #....AND NOTE:

I HEREBY CERTIFY THAT A COPY OF THIS LETTER HAS BEEN SENT TO xxxxxxxx, ON _______/__________/ 2011

BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ARTICLE NUMBER*******

Edited March 22, 2011 by Prosay

[Prosay]

Don't say much at all in the letter. You need to leave things left unsaid for them to possibly commit violations! You can't very well dispute this debt as you have already had an attorney working for you in regard to it. You already know it has an agreement, but you don't want to say anything about it. Wait and see if they "own" up to the agreement and honor it. If they don't - they have breached their own contract which you can show if they should try and litigate in court. You also want to set them up to violate by calling you. If they do call after they get their letter, make sure you take a picture of your caller ID, showing the date and their name/number. Make sure to send this letter certified, return receipt requested.

c

Your Name

Address

Their Name

Address

Date

In Re: Account Number from their correspondence here

Dear Whoever,

If there is an agreement for this alleged account that has any arbitration clause that waives your litigation rights over this alleged debt, I hereby elect it.

All phone calls to me are inconvenient, so all communications need to be by mail.

Regards,

You

note: YOU CAN ALSO USE YOUR MONTHLY TELEPHONE BILL AS EVIDENCE, SINCE THE BILL WILL REFLECT THE NUMBER OF ALL INCOMING CALLS, showing date, time and sometimes duration of the call.

[OnTheWarPath]

note: YOU CAN ALSO USE YOUR MONTHLY TELEPHONE BILL AS EVIDENCE, SINCE THE BILL WILL REFLECT THE NUMBER OF ALL INCOMING CALLS, showing date, time and sometimes duration of the call.

My phone bill (at&t) shows all LD outgoing phone calls but I have never seen any "incoming" calls listed on my bill before. Is this something that ATT will let you subscribe to like caller ID, 3 way calling, etc?