Help!! Being sued by OC w/CC agreement

[LuvThisSite1]

I'm being sued by a lawyer for the original creditor (OC is listed as Plaintiff) and they have attached a copy of the credit card agreement and final billing statement to the complaint. I don't know if I can beat this one. What do you think my chances are? Should I try to fight it?

Here's the info:

1. Who is suing you? World Fin Netwok Bank is listed as Plaintiff, being sued by Attorney for Plaintiff

2. For how much? $3000

3. Who is the original creditor? World Fin Network Bank

4. How do you know you are being sued? Received complaint in the mail, case is listed on county courthouse website

5. How were you served? Were you served? Certified Mail (ignored), then ordinary mail (opened before I realized what it was)

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None

7. Where do you live? OH

8. When is the last time you paid on this account? 2009

9. What is the status of your case (if anything has been opened)? Case is on the docket. I have 28 days to answer summons

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. NO

12. Does your summons require a response in writing? YES

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? No

Complaint:

1. The Defendant applied for a credit card account with Plaintiff

2. By use of the account, the Defendant became bound by the terms in the agreement

3.The Plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to the plaintiff

4. The amount now due and owing is $3000. A copy of the statement is attached as exhibit A.

5. Although demand has been made upon the defendant to liquidate the balance due and owing, the defendant has failed to do so

Wherefore, the plaintiff prays for judgment against the defendant in the principal sum of $3000 plus interest....

Signed,

Attorney's Name

This law firm is a debt collector attempting to collect this debt for our client and any information obtained will be used for that purpose.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Credit card statement and credit card agreement

14. What is the SOL on the debt? 15 years

Any help on this is greatly appreciated!! Thanks.

Edited September 10, 2011 by LuvThisSite1
Remove personally identifiable info

[1stStep]

Does the cardholder agreement mention arbitration? If so, then file a motion to compel arbitration per the agreement.

[LuvThisSite1]

Yes, the cardholder agreement does mention arbitration. I've read some other threads on this board that mentioned arbitration, but I'm having a little trouble understanding the advantage of arbitration. Can you help explaining to me what I gain by choosing arbitration? Should I file the motion to compel before I file my answer, or do I file the answer first? If I do file the answer first, do I still deny everything?

Thank you so much for your help!!

[1stStep]

Arbitration does 2 things:

1. It takes the case out of court...

2. Arbitration is horribly expensive to undertake. The OC/JDB forced into arbitration could pay in excess of $2k before the case can get heard - then pay $500+ per hour for the arbiter.

In your case, since the debt is below $5k, then I'd go the arbitration route.

[LadyGabbie]

Don't most (if not all) credit card agreements have some sort of arbitration clauses in them? JDB's are required to pay for all those costs even if the arbitrator rules in their favor? Can you file a motion to compel arbitration at any point during the lawsuit?

[LuvThisSite1]

Oh.....okay. So, I do file my motion to compel arbitration BEFORE I file an answer, or do I file an answer first? Also, would you happen to know where I can find a good sample of motion to compel arbitration?

Thanks!

[1stStep]

Filing a motion to compel arbitration will depend heavily on court rules.

Generally, the sooner the better.

And that is the beauty of arbitration - they JDB has to pay the bill - those clauses are airtight.

[LuvThisSite1]

Filing a motion to compel arbitration will depend heavily on court rules.

Can you elaborate a little, please? When you say filing the motion will depend "heavily" on court rules, are you just speaking in reference to the timing of when to file, or do you mean being able to file period??

[LuvThisSite1]

So, how do I complete my answer? Do I still deny everything, and mention that I am electing arbitration pursuant to the credit card agreement attached to the complaint, even though I'm denying that part of the complaint???

[1stStep]

File an answer in which you deny the allegations.

Then, based on the cardholder agreement, file a motion to compel arbitration. Put a copy of the cardholder agreement as an exhibit to support your motion. Get the clerk to put it on calendar for a hearing.

[Quhzk]

I'm in the same boat you are. 1stStep has been helpnig me as well, if you find a good sample MTC arbitration please post. After reading these posts I feel better informed, thank you all.

[nobk4me]

I'm in the same boat you are. 1stStep has been helpnig me as well, if you find a good sample MTC arbitration please post. After reading these posts I feel better informed, thank you all.

Check your PM.

[LuvThisSite1]

I sent my notice to the OC's lawyer that I am electing arbitration yesterday. But, at the same time, I'm involved in another lawsuit -- this one by a JDB -- and I submitted a motion for a more definite statement and it was granted.

The Judge ordered that the Plaintiff file an amended complaint with copies of all the following attached:

1. A copy of the account which includes

A. A starting zero balance

B. each and every transaction since the zero balance showing the date, amount, and identification of each transaction; and

C. a running balance or other arrangement which permits calculation of the amount due

2. A copy of the credit card agreement/terms and conditions, including the original application and agreement, and any and every amendment subsequent thereto; and

3. A copy of all contracts of assignment and/or other instruments (with corporate seal or letterhead) transferring ownership of the account at issue from the original owner to the Plaintiff.

Now, that case does involve a JDB and not an OC...but, I'm wondering if I should try using Rule 10(D) of our CRPs for this case, too? Or, would it be better for me to still try for arbitration? The arb clause is a little different than other ones that I've seen on this site. It states "IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT" (it doesn't say "YOU OR WE WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT", it just says "YOU"). And, I don't have any claims against them.

What do you think??

[LuvThisSite1]

Here is the motion that I filed in the other case:

In the XXXXXX County Court

City, St

Case No. XXXXXXXX

MOTION FOR A MORE DEFINITE STATEMENT OR DISMISSAL OF COMPLAINT

Greedy JBD, LLC.

Plaintiff

Vs.

Me

Defendant

Comes now the Defendant, Me, and files this Motion for a More Definite Statement, pursuant to Civil Rule 12(E), or a dismissal of Plaintiff’s complaint as follows:

1. The complaint filed by the Plaintiff is insufficient as a matter of law. Pursuant to Rule 10(D) of the Ohio Rules of Civil Procedure, when any claim is founded on an account or other written instrument, a copy thereof must be attached to the pleading. Defendant contends that Plaintiff’s complaint is insufficient since a proper statement of account was not attached to the complaint.

2. Paragraph 2 of Plaintiff’s complaint states “By use of the account, the Defendant became bound by the terms in the agreement. A copy of the STATEMENT is attached as exhibit A”.

Defendant again sites Rule 10(D) of the Ohio Rules of Civil Procedure. Various appellate courts have interpreted Rule 10 (D) in cases involving collection of credit card debts. In Brown v. Columbus Stamping and Manufacturing Co (1967), 9 Ohio App2d 123, 38 O.O.2d 143, 223 N.E. 2d 373, that Court of Appeals set forth what is required for an account to be in compliance with Rule 10(D). An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. (Id at 126) The Third District Court of Appeals has affirmed Rule 10(D) requirements that a copy of the account be attached, and also the Brown requirements of what an account must show. [see Parsell v. Martinez, Henry Co App No 7-07-16, 2008-Ohio-1008 ¶ 8; The Marysville Newspapers, Inc. v. The Delaware Gazette Co., Inc., Union Co. App No 14-06-34, 2007-Ohio-4365 ¶ 26.]. Plaintiff‘s Exhibit A does not satisfy the Brown requirements because Exhibit A does not state a beginning balance starting at zero, nor does it reflect the item(s), dates, charges, debits, credits, or a summarization which permits the calculation of the amount claimed to be due.

3. Paragraph 3 of Plaintiff’s complaint states “The Plaintiff has exercised its rights pursuant to the terms of said Agreement to accelerate the time for payment of the entire balance due and owing by the Defendant to the Plaintiff". Defendant contends that Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.

WHEREFORE, Defendant, Me, respectfully submits that the Court should grant the defendant’s Motion for a More Definite Statement or deny the Plaintiff's Complaint, filed herein by Greedy JDB, LLC. and dismiss the complaint by the Plaintiff for damages of $9999.99.

Defendant's Request submitted this _____ day of ______________, 2011.

Of course, I haven't gotten a dismissal yet, so I can't say that this is a sure bet but, I don't know how strong of a case I will have for arbitration. I guess I'm just a little nervous because arbitration is a whole new frontier for me. So, should I stick with what I know and try to fight it in court, or should I just calm down stay the course and stick with arbitration?

[nobk4me]

I sent my notice to the OC's lawyer that I am electing arbitration yesterday. But, at the same time, I'm involved in another lawsuit -- this one by a JDB -- and I submitted a motion for a more definite statement and it was granted.

The Judge ordered that the Plaintiff file an amended complaint with copies of all the following attached:

1. A copy of the account which includes

A. A starting zero balance

B. each and every transaction since the zero balance showing the date, amount, and identification of each transaction; and

C. a running balance or other arrangement which permits calculation of the amount due

2. A copy of the credit card agreement/terms and conditions, including the original application and agreement, and any and every amendment subsequent thereto; and

3. A copy of all contracts of assignment and/or other instruments (with corporate seal or letterhead) transferring ownership of the account at issue from the original owner to the Plaintiff.

Now, that case does involve a JDB and not an OC...but, I'm wondering if I should try using Rule 10(D) of our CRPs for this case, too? Or, would it be better for me to still try for arbitration? The arb clause is a little different than other ones that I've seen on this site. It states "IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT" (it doesn't say "YOU OR WE WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT", it just says "YOU"). And, I don't have any claims against them.

What do you think??

It's amazing that you got that court order. If you have a good court that is willing to follow the law, maybe you should stick with court and not do arb.

My experience with my pro-creditor, railroad, kangaroo court, where I was threatened with financial ruin by a magistrate, who was doing the creditor attorney's work for him, has prompted me to go for arb every time.

The advantages of arb are two-fold: it gets you out of the railroad local, good old boy court system; and, it is extremely expensive for the creditor, such that, many will not pay the arb fees.

You probably have some claims against them, how about emotional distress?

And, there may be better versions of the arb clause in cardmember agreements floating around out there.

Edited September 8, 2011 by nobk4me