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Discover credit card & bishop, white & marshall


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Really need help with this as I am totally overwhelmed by everything I've been reading. My husband is usually the one who would take care of this but he has been battling cancer and I don't want to bother him with this right now since he has so much going on right now.

I was served with a complaint to respone in 30 days (answer by Oct. 3rd) by discover bank as the plantiff. Via Bishop, white and Marshall (a law firm in seattle I am in Oregon) This is the first comunication from these guys other than many phone messages they have left.

At this point I would really like to start some sort of a payment plan but not sure how realistic this is with this company as we can't afford much per month with my husbands medical bills.

I know my other option is submit an answer so here are the details from the papers I received

We are a debt collector. This communication is an attempt to collect a debt, and any information obtained will be used for that purpose.

Plaintiff Discover bank issuer of the discover card alleges as follows:

1. At all times herein plaintiff was and is an FDIC insured Delaware State Bank organized and existing under the laws of the state of Delaware. Plantiff is duly authorized to bring this action in the state of Oregon.

2.Plaintiff is informed and believes that the Defendant is a resident of Washington County Oregon.

3. On or about October 24 2008 the defendant opened a consumer credit account with discover bank. Under the terms and conditions of the cardmember agreement which govern the account, Defendant agreed to make monthly payments for all charges to the account. The agreement contains a provision for payment of attorney's fees in the event suit is brought to collect the unpaid balance.

4.No payments have been made on this account since October 11 2010 and defendant is now in default under the terms and conditions of cardmember agreement. Wherefore plaintiff prays for a judgement against the above named defendant XXX X XXX as follows:

1.Int he amount of 8xxx.xx plus interest at the rate of 9% per annum from the date of judgement together with attorneys' fees if allowed by law and cost and disbursements incurred herein including a prevailing party fee;and.

2.For such other further relief as the court may deem just and proper.

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I just looked and discover has an arbitration clause and has JAMS listed. I am not usually one to suggest outright you elect arbitration, However with everything you have going and how long you can drag it out I would suggest you look into it.

THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION

This means when you elect arbitration they have no right to a court room any more.

Fees and Costs. If you wish to begin an arbitration againstus but you cannot afford to pay the organization’s or arbitrator’s costs, we will pay those costs if you ask us in writing. Any request like this should be sent to Discover, PO Box 30421, Salt Lake City, UT 84130-0421.

This means they have to pay your way and also pay thier portion which is very significant. You will want JAMS as they are the most consumer friendly and most expensive for them.

You can find the card member agreement here:

http://www.discovercard.com/assets/Prime_Combined.pdf

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You answer to ensure you do not get a default and one of your affirmitive defenses is that you have invoked arbitration. You also send a letter to the lawyer stating you are invoking the arbitration clause and select JAMS as the forum. Tell them they need to dismiss since your electing arbitration removes their right to court. Also ask them to advance the fee money per the contract.

The best place for info on arbitration is the arbitration forum:

Arbitration - Credit and Debt Problems Forums

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The person being sued has cancer and in no way can afford to pay this back. Arbitration as an affirmative defense is good, but truthfully a lot can be accomplished by answering the suit and addressing the attorneys of record in this case. Since you already indicated that you guys have piled up medical bills, you clearly cannot afford to pay on this debt. Is your husband receiving disability income or any other state or federal monies during the cancer treatment? Is Oregon a community property state? Are you his primary caregiver at this time? Do you guys share a checking or savings account? I am asking all of these questions because many courts have ruled that a Debtor must have a 'de minimus' amount of money to live off of each month. That is to say, after your bills are paid, groceries, rent or mortgage, auto etc, you need to have some money left over for contingencies. If the little monies you have left after bills go towards more bills, you will forever be in a bad position because you can't save up any money, your credit is already shot by being in collections and if some catastrophe occurs, you'll have no cash access! Therefore, in addition to answering the lawsuit with the standard affirmative defenses (plus adding arbitration), you should seriously consider writing a letter to the court and attorneys of record asking them to dismiss the case. However, the nature of this letter will depend upon your answers to the questions I posed above. Election of arbitration is a good stop gap measure for most people, but if your spouse has cancer and is unable to generate income, you guys are likely close to being impoverished and even if a judgement was entered against you, the Plaintiffs would be hard pressed to collect on it anyway. See the 5th post down on this thread about a woman who got sued, default judgment was obtained, they levied her bank accounts and they had to give her her money back!

Edited by rikkivs
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Thanks for the info Rik...my husband has been a stay at home dad to our 2 children for the past 8 + years so I have been the only source of income for our family and until all this debt started piling up that was wonderful for our family. But since his illness it has really taken a huge toll on our lives and the idea that a judge is going to possibly garnish my pay check when this is the one and only source of income is scary as I'm pretty sure my employer isn't going to be thrilled and I can't afford to give any reason to lose my job. At the end of the month once all bills are payed we have little to nothing left and we live with little as it is, people wonder how we live with basic free tv and we say we don't have the 100 dollars to spend every month.

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I came across this answer and defense on a case vs discover let me know if I'm on the right track please. Also how should I word the arbitration clause in the defense. Thank you again so much for your help on this, no way could I ever do this alone!

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint naming DISCOVER BANK Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

DEFENSES

1. Bishop,White & Marshall, P.S. has not proven that they are authorized and licensed to collect claims for others in the State of Oregon, or solicit the right to collect or receive payment of a claim of another.

2. Bishop,White & Marshall, P.S. has not proven that they were retained by DISCOVER BANK as its representative in this matter.

3. Bishop,White & Marshall, P.S. has not proven that DISCOVER BANK is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of DISCOVER BANK with all of the original creditor’s rights and privileges intact.

4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Bishop,White & Marshall, P.S. has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

9. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.

Dated: 10/03/2011

My name

By: ___________________________

My name, Defendant

My address and phone number

CERTIFICATE OF SERVICE

The undersigned certifies that the above documents were served on all parties in the above cause by depositing an original and one copy in the U.S. Mail, postage prepaid, in an envelope addressed to: LAW OFFICES OF Bishop,White & Marshall, P.S., 720 Olive Way, Suite 1301, Seattle, Washington, 98101, on 01/12/10.

___________________________________

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Have you looked into the possibility of bankruptcy? Don't get me wrong. I'm not saying Discover Bank isn't defeatable. BUT, considering your circumstances, it wouldn't hurt to talk to a bankruptcy attorney just to find out your options.

Most bk attorneys give free consultations. If you call for an appointment, they'll tell you what documentation (pay stubs, tax return, etc) you need to take with you to the consultation.

It never hurts to know your options and have a backup plan. I'm sending good thoughts your way. :)

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Thank you for your opinion BV80 and BK is something we've thought about but thankfully we have great family around us and with my husbands current condition I'm 100% sure they would help us but this would be only if we can't get something worked out with Discover card on our own.

Ok...I just wanted to make sure you know you have options, because I understand from what you stated that finances are tight, and I didn't want you to risk a garnishment. You're blessed to have loving and supportive family. I wish you the very best and hope for your husband's complete recovery. :D

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I'll give this a try.

Unless you don't live in Washington County, I would admit #2. You know where you live. :) You're answers to the other allegations are fine.

Regarding your defenses, #1, and #2 are not actually affirmative defenses. They will object to #3. Discover Bank is an original creditor. Discover is not claiming to have purchased or been assigned the account from another entity.

I'm not sure about #6. Do the OR Rules of Civil Procedure require an affidavit to be filed with the Complaint?

Edited by BV80
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I'll give this a try.

Unless you don't live in Washington County, I would admit #2. You know where you live. :) You're answers to the other allegations are fine.

Regarding your defenses, #1, and #2 are not actually affirmative defenses. They will object to #3. Discover Bank is an original creditor. Discover is not claiming to have purchased or been assigned the account from another entity.

I'm not sure about #6. Do the OR Rules of Civil Procedure require an affidavit to be filed with the Complaint?

Thank you so much again! I have made all changes but had just one last one, that is does the answer and defense get filed and the same form that I have or are there usually separate forms for this? I tried asking the clerk but she said she couldn't tell me and this is due in the next 8 hours! HELP anyone I have a form 501 ready to go but don't want to put my defense on that if it isn't supposed to be there.

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Thank you so much again! I have made all changes but had just one last one, that is does the answer and defense get filed and the same form that I have or are there usually separate forms for this? I tried asking the clerk but she said she couldn't tell me and this is due in the next 8 hours! HELP anyone I have a form 501 ready to go but don't want to put my defense on that if it isn't supposed to be there.

I assume the following is the correct rule. Hopefully, you've been reading your Rules of Civil Procedure, so you should be able to tell.

DEFENSES AND OBJECTIONS; HOW PRESENTED; BY PLEADING OR MOTION; MOTION FOR JUDGMENT ON THE PLEADINGS

RULE 21

A How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto,...

That states that "in the responsive pleading". The responsive pleading is your answer...your response to the pleading (Complaint). That's how I interpret it.

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