skihaus

Fight the CA myself or go to Arbitration? MAchol & Johannes vs. me

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Hello,

I have been reviewing a lot of the posts today and now I am greatly overwhelmed. There is some great information on this site, but a lot of it I feel is over my head.

Today I signed for a notice that states Plaintiff Cap 1, defendant me. The attorneys are Machol & Johannes which I believe are just a glorified CA or JDB. It does state summons along with a time/date to appear in County Court, Douglas County, CO. The amount they are seeking is $1700. Although the true amount is about $1300. Isn't the cost to go to court more than this debt is worth?

I apologize if this has been asked before, but I really need a starting point as to next steps. It seems that I have up until said date to respond via mail or in person. Is that true?

Is it an option to settle with the Machol & Johannes directly? What is the most effective manner? It seems the consistent response is to start at 30& of the original amount, in this case it would be $390.

What is JAMs Arbitration and would this be an effective tactic? How do I know f arbitration is an option? I don't believe I have the cardholder agreement, unfortunately.

I thought about denying all the responses that request funds due to lack of information, what usually happens next?

Basically I am looking for an outline of how I should asses this situation and I would like to compare my options.

I just saw this template in a the previous post about Midland and thought it would be helpful.

1. Who is the named plaintiff in the suit?

Cap 1

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Machol & Johannes

3. How much are you being sued for?

$1700

4. Who is the original creditor? (if not the Plaintiff)

Cap 1

5. How do you know you are being sued? (You were served, right?)

Served with summons

6. How were you served? (Mail, In person, Notice on door)

In person today

7. Was the service legal as required by your state?

Yes I signed for my wife, this legal in CO

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

One letter requesting payment

9. What state and county do you live in?

CO, Douglas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Approx 3-3.5 years

Unfortunately we are well within SOL

11. What is the SOL on the debt?

I think 6 years per CO law

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served, I'm going to prep my answer with the advice I get here.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now -it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). 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?

It seems up to court date 12/5/12

Complaints for:

1) Accounts stated

Nothing attached

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No exhibits attached.

Edited by skihaus
Typos

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Don't stress. You'll be amazed how much this place will teach you. Even though you feel it's more that you can understand you're no the first and some of those have won. I'll let others with more time in here give insight on the plaintiff since I'm not familiar with them. As far as the cost they most likely paid far less than the $1300 so it's almost all profit for them. 90% of the time they're hoping you don't even answer. If you do you're already doing more than they expected.

Deep breath. You'd be suprised how well you just might do.

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I don't know anything about the law in CO but I did sucessfully defend myself against CAP 1 but they did take the case all the way to the eve of trial, literally. So don't expect them to back down on the case easily. I would respond to the case and deny the bill. Especially since you don't owe that amount. Make them account for every penny. Just state in your answer that you have no knowledge about this account or any bill for that amount of money. I looked up defenses on the internet for California and used most of them in my answer to the court. It ended up that several did apply.

Also, I tried to do the arbitration but the judge denied it. You should ask for arbitration right away. Send the lawyer a letter requesting arbitration with JAMS. You can even ask that they pay for it and if you are low income JAMS should make them pay. It is very costly for them to go to arbitration and they may back down somewhere down the line. You need to apply for JAMS and pay the fee unless you think you qualify to have them pay. There is another forum where they talk of arbitration heavily but I can't remember the name of it here. Maybe someone else will come along or send you a message. Good luck. I would look into JAMS if I were you.

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Capital One | Credit Card Agreements for U.S. Consumers

I think that Capital One stopped arbitration in 2010,just to make sure you might check with Linda7.

http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

Edited by racecar

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Thank you all for the information. After further research arbitration is not an option. I am going to respond to the summons tonight, any tips?

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I'm sorry to keep hammering at this situation, but I could use some guidance. The summons I received contained a response form. It seems that is the only thing I need to complete, send one to atty and one to the court. There is a filing fee too, but I'll need to call Monday to find out how much that is. The questions to me don't make any sense.

The 1st one states, The amount of damages claimed to be due to the plaintiff by the complaint in this action is not due and owing for the following reasons:

This isn't a question, but more of a statement. Could I reply, deny due to insufficient evidence?

The remaining questions give me the option to counter-claim, cross-claim or request a jury, which I believe I won't do any of the above unless there is good reason I should.

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I just contacted the county clerk to find out what the fee is to respond to the complaint and she suggested that I show up to the court hearing and negotiate with the attorney before the trial. It seems that this attorney is at this location quite frequently. Is this a good idea?

I really feel like I'm underwater in this situation. Per the card agreement (see racecar post) attached it seems that that CAP1 doesn't allow arbitration, but I read a post earlier from 2011 that another user was pursuing arbitration with CAP1. How can this be validated if I am eligible? This seems like a viable path.

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I just contacted the county clerk to find out what the fee is to respond to the complaint and she suggested that I show up to the court hearing and negotiate with the attorney before the trial. It seems that this attorney is at this location quite frequently. Is this a good idea?

I really feel like I'm underwater in this situation. Per the card agreement (see racecar post) attached it seems that that CAP1 doesn't allow arbitration, but I read a post earlier from 2011 that another user was pursuing arbitration with CAP1. How can this be validated if I am eligible? This seems like a viable path.

I am new as well and I almost threw in the towel. But look at it this way; at least you made the decision to take a stand. I am going to fight to the end. Praying that I win. Good luck!

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I just contacted the county clerk to find out what the fee is to respond to the complaint and she suggested that I show up to the court hearing and negotiate with the attorney before the trial. It seems that this attorney is at this location quite frequently. Is this a good idea?

I really feel like I'm underwater in this situation. Per the card agreement (see racecar post) attached it seems that that CAP1 doesn't allow arbitration, but I read a post earlier from 2011 that another user was pursuing arbitration with CAP1. How can this be validated if I am eligible? This seems like a viable path.

If you account was open in 2008, you should be able to use this agreement for electing arbitration. Capital One | Cardmember Agreements

You will want to read up on this strategy and make sue you follow the court rules first.

The way I did it (With Cap1 BTW) is I first ELECTED arbitration, meaning I followed the instructions in their agreement.

Next I created a motion to compel arbitration and filed it with the court before I filed my answers.

Check this site for more on the strategy. It worked for me. Arbitration

Edited by Cliff2009

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If you account was open in 2008, you should be able to use this agreement for electing arbitration.

I should clarify it was definately pre-2008. Does that mean you are grandfathered into the agreement at time of inception? That would be great if that is the case. Also do you know how I could confirm which agreement I fall under? Thanks!

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The way I did it (With Cap1 BTW) is I first ELECTED arbitration, meaning I followed the instructions in their agreement.

Thanks Cliff2009 - Would you mind sharing more of your experience in this process? Did you use JAMA? It seems CAP1 offers all 3 agencies. What was your outcome? Thanks!

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I just contacted the county clerk to obtain information on the court rules and how to file a request for an arbitrator. She stated and I quote, "It might be fruitless of you to request an arbitrator since the Judge requires mediation before trial." Almost as if she is on the payroll of the attorney's office. Going into mediation with the Plantiff's attorney sounds like walking into a Lion's Den, hmm I don't think so. Any thoughts?

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I just contacted the county clerk to obtain information on the court rules and how to file a request for an arbitrator. She stated and I quote, "It might be fruitless of you to request an arbitrator since the Judge requires mediation before trial." Almost as if she is on the payroll of the attorney's office. Going into mediation with the Plantiff's attorney sounds like walking into a Lion's Den, hmm I don't think so. Any thoughts?

I know that the Vikings removed arbitration from their agreement in 2010. If your account was opened pre-2008 as you stated then the arbitration provision of the contract might hold as it has a survivable clause in the provision.

I would seriously look at the date of last use. If you used the card after receiving the updated agreement in 2010, I'm not certain how that would play in to your desires to arbitrate or if it it means you've agreed that the arbitration provision is no longer valid. Others may be able to comment on this who have more knowledge than I do. Good luck!

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I just contacted the county clerk to obtain information on the court rules and how to file a request for an arbitrator. She stated and I quote, "It might be fruitless of you to request an arbitrator since the Judge requires mediation before trial." Almost as if she is on the payroll of the attorney's office. Going into mediation with the Plantiff's attorney sounds like walking into a Lion's Den, hmm I don't think so. Any thoughts?

Usually the clerk thinks you are talking about court arbitration, private contractual arbitration is something different.

Check the language from the 2008 agreement.

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Thanks Cliff2009 - Would you mind sharing more of your experience in this process? Did you use JAMA? It seems CAP1 offers all 3 agencies. What was your outcome? Thanks!

For me thanks to the help of the board and Linda7 I was able to get the court proceedings stopped and eventually closed.

After I was served I sent the law firm (I also hear it is good to send the plaintiff) a "Notice of Arbitration Election". This does not need to be sent to the court yet.

After that I filed a Motion to Compel Arbitration with the court, followed by my answers to the summons with a general denial.

With my MTC I used the wording to dismiss or stay the case, the law firm countered with a motion to make me initiate arbitration within 30 days.

The judge made his own order saying either side MAY initiate arbitration and the case was stayed until arbitration was complete.

I never got around to initiating and 180 days later the court asked the law firm if they initiated, they did not reply so he dismissed the case.

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Cliff009, that is a great testimony!

After you filed the "Notice of Arbitration Election" did they respond to you or did you immediately proceed with the MTC?

Did you use a sample MTC in the forums? I found this one, but I want to make sure it is applicable to my situation. I'm guessing I could post my version for comments.

I guess after all this the worst is still the law suit so why not keep fighting as Luck7 mentioned the other day.

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Cliff009, that is a great testimony!

After you filed the "Notice of Arbitration Election" did they respond to you or did you immediately proceed with the MTC?

Did you use a sample MTC in the forums? I found this one, but I want to make sure it is applicable to my situation. I'm guessing I could post my version for comments.

I guess after all this the worst is still the law suit so why not keep fighting as Luck7 mentioned the other day.

I sent the NOAE only about 5 days before my answers were due and they never responded to it so I filed my MTC minutes before I filed my answers.

Look for an MTC that Linda7 posted here, I have seen some around. Here is the thread, it has mine and another Linda7 used. http://www.creditinfocenter.com/forums/arbitration/316794-motion-compel-samples-wanted.html

Edited by Cliff2009

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Cliff2009 - Thanks again for your responses. In the meantime I Was able to confirm that the account was opened in 2000. This agreement includes JAMS. I spoke with a JAMS representative yesterday and she stated I would need to submit copies of the agreement along with a check for $250. My question to you is the ordering of the process, did you file the MTC first and then follow-up with a payment to JAMS or did you not even get to that point since it was basically dropped in your case? I might getting ahead of myself, but I'm trying to understand the steps that need to take place.

Second question, in your court system did you have to pay a fee to file the MTC? The county court charges $75 in order for me to file a response to the complaint, but I'm not sure if that applies to an MTC. I will contact the county clerk today.

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Look on your credit report. I know you said the alleged account was opened in 2000, but the bigger question is "when" was the "year" date of the last payment? And you did not use the account beyond that date? That will tell us if arbitration is an option.

Then I would read this thread - http://www.creditinfocenter.com/forums/there-lawyer-house/313194-just-received-summons-machol-johannes-capital-one.html

Have you already filed your answer and affirmative defenses?

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Thanks Linda7 - the answer to your question is 2011 was when the last payment was made. No the account was inactive after 2011.

No I have not filed yet since it costs $75 and I wanted to research all my options before filing. I will also review the post you attached.

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Thanks Linda7 - the answer to your question is 2011 was when the last payment was made. No the account was inactive after 2011.

No I have not filed yet since it costs $75 and I wanted to research all my options before filing. I will also review the post you attached.

Unfortunately, you fall into the class action - Ross vs BOA. Capital One decided to take out arbitration - even though the agreements had a survivability clause.

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Machol & Johannes will fight Arbitration but you could still win depending upon the judge and because of the survival clause. I can send you the info about how they will answer your motion to compel so you can anticipate what they will say to fight the arbitration. They have seemed pretty competant thus far but I have read about a few others where they had to dismiss because of lack of evidence or lack of a Capital One representative showing up at the court date. You may be able to get the attention of Crap One if you do file for Arb and then you can negotiate with them more directly and not have to deal with the sleezy lawyers.

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I'm not up to speed on the correct wording, however I wanted to let you know that I am being sued by Machol and Johannes as well.

I went and met with an attorney and he said that their summons was poorly written.

When I called the office to try to make payment arrangements (prior to finding this forum) they told me that I had a court date which was yesterday---called the courts and there is no court date.

Not sure how to link my last post, but people here are saying to sue them for violations on their end.

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