Arbitration Denied, Going to Trial

[BummedByDebt]

Hey all, so I played the Arbitration card against a CA where Crap One is the OC suing me and my motion to compel was denied. The reason I went the Arb route was that they "have" me, they have all my account statements back to zero. However, I believe that I was wrongly denied Arbitration so I can always appeal based upon that, which I will do if I lose.

Their evidence is going to be a Crap One "Representative", the cardholder agreement and statements, and making me answer questions. I am hoping that Crap One doesn't find it cost effective to send someone for less than 1k but I want to be prepared anyways. If the Crap One Rep doesn't show up I plan on motioning to dismiss based upon lack of personal knowledge of the records attempted to be used as evidence and how they were handled?

If the Crap One Rep does show up what questions can and should I ask, how can I attack them and put the records in question?

Lastly, what questions should I be prepared to answer if they put me on the stand? I imagine they are going to simply ask me if I owe the debt or not and why I shouldn't have to pay it, I don't want to give them their case but I don't want to lie either, how do you answer these questions?

I will post a follow up to this with their disclosure statement. Thanks everyone as I am learning cause I am going to have MORE cases coming up, hopefully better ones as Midland has purchased some of my accounts.

[BummedByDebt]

Rep for Crap One USA at blah blah blah

Brief Description of Testimony:

a. identify the business records of the Plaintiff which are to be introduced at trial;

b. testify that the records were made at or near the time of the transactions described therin by, or from transmitted from, a person with knowledge of the information transmitted, and kept in the regular course of the Plaintiff's regularly conducted business activities according to the regular practice of the Plaintiff's business;

c. testify as to the regular practices of the Plaintiff in regard to transmitting account statements to the Defendant on a monthly basis;

d. testify as to the substantive information record, including, but not limited to, the terms of the credit account agreement, defendant's acceptance and use of the credit account, charges to the account, payments and other credits to the account, events of default and the regular practices of the Plaintiff in regard, credit, balance and events of default;

e. testify as to the regular practices of the Plaintiff in regard to interest charges, late payment fees and fess charged to the Defendant when the account balance exceeded the approval limit;

f. testify as necessary to explain or clarify any other testimony or the contents of any exhibit, any matter raised as a factual or legal defense, or as necessary for rebuttal;

g. testify as to the amount and basis of the Plaintiff's claim for damages, including the balance due on the account, the ammount of interest claimed, the applicable interest rate and the amount of attorney fees sought and the bases therefor.

Other witness: ME at my address

Brief Description of Testimony:

The Defendant will testify to the following as an adverse witness:

a. testify as to the validity of the debt

b. testify as to the action take in relation to the debt

c. testitfy as to the amounts due and owing

d. testify as necesssary to explain or clarify any other testimony or the contents of any exhibit, any matter raised as factual or legal defense, or as necessary for rebuttal;

3. Any other witness as may be determined to be necessary, whose names will be provided at earliest opportunity.

B. All documents to be used at trial:

a. Customer Agreement (3 pages)

b. Billing Statements dated blah blah blah (34 pages)

c. Charge-Off 1pg

Any additional exhibits will be provided at the earliest opportunity.

Plaintiff may be requesting interest, attorney fees and court costs.

How do I attack all this and answer these questions!?

[BummedByDebt]

As I said before I am hoping that Crap One doesn't fly someone here for less than 1k, if they don't then how do I proceed in attacking the "business records" so that I can motion to dismiss?

The only mistake they have made thus far is including an old Customer Agreement as the one they will be using at trial, one that INCLUDES the Arbitration which I was denied. The reason they argued I shouldn't get Arb was because I fell under the new more recent agreement which took the Arb clause out.

I don't know if I could ask if this is the correct and governing agreement and if they said it was then I can ask why they are still litigating against me when they waived that right according to the agreement when I elected for Arb.?

Or if they say it is NOT the correct and governing agreement then I can state that there is no agreement between the two parties then and that I therefore don't owe them anything because there is no contract. (they will probably just argue account stated I imagine with charges).

How do I attack the Crap One Rep and what should be my strategy to win or at least make a good showing?

How will I answer the questions from the other sides attorneys, I won't lie but I don't want to hand them their case either. Do I just be ambigious and say I can't remember 3 years ago, it may or may not be something I did? I had multiple Crap One cards so I am not sure if this is one of them or not. I didn't take any action about the alleged debt because I am not even sure if it is my debt or not so why would I take action about it. Will they go through specific charges and ask if I made them, I highly doubt I will remember if I made the charges specifically or not.

THanks for any help, trial date is tuesday the 13th, I know I waited till the last minute. . .

[BummedByDebt]

Any help or ideas anyone has would be great. I will keep searching on the board for answers to my questions as well. Thanks.

[BV80]

I'll be honest. In my opinion, you've got an uphill battle. People have won against OCs before, but it's not easy. Also, those wins were usually based upon a valid defense such as identity theft or a dispute with the balance.

The only mistake they have made thus far is including an old Customer Agreement as the one they will be using at trial, one that INCLUDES the Arbitration which I was denied. The reason they argued I shouldn't get Arb was because I fell under the new more recent agreement which took the Arb clause out.

I don't know if I could ask if this is the correct and governing agreement and if they said it was then I can ask why they are still litigating against me when they waived that right according to the agreement when I elected for Arb.?

As you know, Cap1 removed the arbitration provision as part of a class action settlement. Even if that agreement was valid at one time, it's not now because of the terms of the settlement.

The reason they're still litigating is because the judge ruled against arbitration. It wasn't the sole decision of Cap1.

Or if they say it is NOT the correct and governing agreement then I can state that there is no agreement between the two parties then and that I therefore don't owe them anything because there is no contract. (they will probably just argue account stated I imagine with charges).

The cardmember agreement is not all that's necessary to prove breach of contract. A cc agreement can be considered an implied contract. That typed of contract can be proven by actions such as charges and payments.

I imagine they're going to ask if you made the charges. You can respond by saying you don't recall, but they'll probably ask if you ever disputed any charges. In other words, were any charges not yours? Were you overcharged on an item or charged twice for the same item? Things like that.

Again, you can say you don't recall, but then they might ask if you made the payments. If you use the same response, again, I'll be honest. If I were a judge, I would not be impressed with that answer. I would be thinking that someone who's denying an account would go through their records to make sure all of the payments on the cc statements were accurate. Therefore, you would know if you made the payments or not.

If the account is yours and the amount is accurate, I suppose all you can do is try to discredit their witness. Perhaps some members here will have an idea as to what you could ask in order to make that attempt. It would be a matter of casting doubt on the witness's review of the records and knowledge of the record keeping methods of Cap1.

However, if the witness doesn't show, you've got to have something to give the judge other than a denial. You'd need good case law from your state that can cast doubt on the records or their affidavit and affiant.

I know you want to make a good showing, and I can understand that. But unless you can cast doubt on their case, a good showing...even one that impresses the judge...won't make a difference if you can't do so.

Have you gone through your bank records to make sure all the payments are accurate?

Were any late charges assessed to payments that might have actually been timely? Improper late charges mean a higher inaccurate balance. That would be further compounded by interest charges on that higher inaccurate balance.

[BrunoTheJDBkiller]

I posted some basic stuff to ask today, and so did Coltfan1972. It's on somebody else's thread, take a look at what we wrote up, it may help. Arb was removed in Oct 2010 as I recall. If they sent you a new cardholder agreement after that and / or a new card with the new terms and you used it, arb would be out the window. However, you might try arguing that any balance you carried in Oct 2010 should still be subject to the terms of the agreement in force at that time. It's not fair to list arbitration, let somebody run up a balance, and then change all the terms and tell them they are out of luck. You certainly couldn't do that, could you? These "agreements" are one sided. You have no say except to not use the card. Me, I'd do a motion to reargue the arbitration part. Find a cardholder agreement from the year the account was opened.

[Linda7]

I was hoping for the best, but was afraid it would be denied. If you used the card or made any payments past the time they took out arbitration, they will say that you agreed to arbitration being taken out and therefore you no longer have the rights to arbitration.

[BV80]

I posted some basic stuff to ask today, and so did Coltfan1972. It's on somebody else's thread, take a look at what we wrote up, it may help. Arb was removed in Oct 2010 as I recall. If they sent you a new cardholder agreement after that and / or a new card with the new terms and you used it, arb would be out the window. However, you might try arguing that any balance you carried in Oct 2010 should still be subject to the terms of the agreement in force at that time. It's not fair to list arbitration, let somebody run up a balance, and then change all the terms and tell them they are out of luck. You certainly couldn't do that, could you? These "agreements" are one sided. You have no say except to not use the card. Me, I'd do a motion to reargue the arbitration part. Find a cardholder agreement from the year the account was opened.

The class action against the Cap1 arbitration provision included anyone who didn't opt out of the action. The settlement agreement stated that Cap1 could not enforce past arbitration agreements (except for arbitration awards that had already been issued). I don't believe, but I'm not positive, that it doesn't state that cardholders can enforce a past provision.

In any case, I'm not sure most Pro Ses could effectively argue for arbitration. It might take an experienced attorney for something like that.

The poster could submit an affidavit that he never received notice to opt out of the class action, and therefore, the settlement agreement wouldn't apply to him. I just don't know how effective that would be.

[BrunoTheJDBkiller]

I briefly read the case, (too long) and as I recall it referred to some sort of mandatory arbitration being imposed by the creditor. I don't recall seeing anything that said the consumer's right to arb by a previous agreement could be cancelled. This is like being grandfathered in by zoning, etc. Okay, here's your contract, go run up a big tab. Oh, you did? Oh, guess what, we're changing the contract retroactively, too bad for you. Good faith and fair dealing? Forget that, it doesn't apply to us. Okay, I stopped using the card when you changed the terms. What about the previous balance? How about I do that myself, and reduce the interest rate to zero? Or remove the part that says I have to pay? No? Gee, that's fair of you.