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Please help..summons from ASSET ACCEPTANCE!


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Hi. For starters, I live in KY and I have zero legal knowledge, nor can I afford an attorney.

Today, I was served a civil summons via sheriff from Asset Acceptance. The complaint reads:

1. The Plaintiff owns and is the holder of an account due and owing by the Defendant, and is the assignee of SUZUKI - HSBC.

2. The Defendant is indebted to the Plaintiff in the amount of $4,652.62; plus accrued interest of $517.25 as of November 19, 2012.

3. Venue is proper with this court based on the Defendant residing in XXXX county.

The rest just states the interest rate of 8% from November 19, 2012, and 12% per annum from date of judgment.

There is nothing else attached. No bill of sale, no statements, no account numbers, no date account was opened or defaulted on. Would this be because Asset does not possess any such documentation? What should I do? I definitely want to answer it, but have no idea how. Thanks in advance!!

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I bet that junk debt buyer would love to pay for some arbitration with jams.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

http://www.consumerfinance.gov/credit-cards/agreements/issuer/307/

ARBITRATION

Federal Arbitration Act

This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the

Federal Arbitration Act, 9 U.S.C. Sections 1 - 16 (the “FAA”). In making decisions or awarding remedies, the arbitrator

shall apply the applicable substantive Law, consistent with the FAA, that would apply if the matter had been brought in

court. The arbitrator shall provide written reasoned findings of fact and conclusions of law upon written request as set forth

in the applicable arbitration association procedures. The arbitrator’s award shall not be subject to appeal except as

permitted by the FAA and in the paragraph below captioned “Decision and Appeal.” Judgment upon the award may be

entered in any court having jurisdiction.

Claims

Unless you have exercised your right to opt out of this arbitration provision, as set forth in the paragraph below captioned

“Opt Out of Arbitration,” this arbitration provision shall apply to any Claim (defined below) by or against us, or you or any

other Covered Person (defined below). You agree any claim, dispute, or controversy (whether based upon contract; tort,

intentional or otherwise; constitution; statute; common law; or equity and whether preexisting, present or future), including

initial claims, counterclaims, cross-claims and third party claims, arising from or relating to (a) this Agreement, the

application, your Account, any debt cancellation or debt suspension product, any fraud prevention, identity protection or

other account enhancement products, any transaction or activity involving any payment or failure to make payment on

your Account, or any solicitation, advertisement, promotion, or oral or written statements related to this Agreement or your

Account or any of the foregoing, or (the relationships which result from this Agreement and your relationship with any

Covered Person in connection with the matters set forth in subsection (a) of this paragraph (any of the foregoing a

“Claim”), shall be resolved, upon the election of you, us, or any other Covered Person described below, by binding

arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator (the

“Administrator”) selected at the time the Claim is filed or received by a party to the Claim. However, “Claim” does not

include any dispute or controversy about the validity, enforceability, coverage or scope of this arbitration provision or any

part thereof (including, without limitation, the paragraph below captioned “Parties to Arbitration and Class Action Waiver”

and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide. However, any

dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a

court, to decide.

Starting an Arbitration and Arbitration Administrators

If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. This notice can be given after

the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, your notice must be sent to: HSBC

Bank Nevada, N.A., P.O. Box 98740, Las Vegas, NV 89193-8740, ATTN: ARBITRATION DEMAND and our notice must

be sent to the most recent address for you in our files. The party seeking arbitration must select as the arbitration

administrator either the:

American Arbitration Association (“AAA”)

1633 Broadway, 10th Floor

New York, NY 10019

www.adr. org

(800) 778-7879

JAMS

620 Eighth Avenue, 34th Floor

New York, NY 10018

www.jamsadr.com

(800) 352-5267

If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion to

compel arbitration with the court which is granted, it will be the responsibility of the party prosecuting the Claim(s) to

commence the arbitration proceeding. If neither the AAA nor JAMS is able or willing to handle the dispute, then the court

will appoint an arbitrator. The arbitrator shall be a lawyer with more than ten years experience or a retired or former judge.

The rules and forms of JAMS and AAA may be obtained by writing to these organizations at the addresses listed above.

The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, nor by state or

local laws that relate to arbitration proceedings. If you or we request, the arbitrator will honor claims of privilege

recognized under applicable law and will use best efforts to protect confidential business, financial or trade secret

information of a party (including through use of protective orders).

Small Claims Exemption

We agree not to invoke our right to arbitrate an individual Claim you may bring in small claims court or an equivalent court,

if any, so long as the Claim is pending only in that court. However, if that Claim is transferred or appealed to a different

court, we reserve our right to elect arbitration at such time.

Location of Arbitration and Fees

Any participatory arbitration hearing that you attend will take place in a location that is reasonably convenient to where

you reside. On any Claim you file, you will pay the first $50 of the filing fee. At your request we will pay the remainder of

the filing fee and any administrative, arbitrator or hearing fees charged by the Administrator or arbitrator on any Claim

submitted by you in arbitration up to a maximum of $2,500. If you are required to pay any additional fees to the

Administrator or arbitrator, we will consider a request by you to pay all or part of the additional fees; however, we shall not

be obligated to pay any additional fees unless the arbitrator grants you an award. If the arbitrator grants an award in your

favor, we will reimburse you for any additional fees paid or owed by you to the Administrator or arbitrator. The parties shall

bear the expense of their respective attorney’s and expert witness fees and costs, except as otherwise provided by law. If

a statute gives you the right to recover any of these fees, or the fees paid to the Administrator or arbitrator, these statutory

rights shall apply in the arbitration notwithstanding anything to the contrary contained herein. To the extent that such a

statute is not applicable, we will pay your reasonable attorney’s and expert witness fees and costs to the extent you

prevail on Claims you assert against us in an arbitration which you have commenced against us or to the extent required

under applicable law for this arbitration provision to be enforced. If the arbitrator issues an award in our favor, you will not

be required to reimburse us for any fees we have previously paid to the Administrator or arbitrator or for which we are

responsible or for any attorneys’ fees or costs we have incurred in prosecuting or defending against Claims in an

arbitration.

Covered Persons

This arbitration provision covers Claims by or against (a) us, any corporate parent, subsidiary, or affiliate, any predecessor

or successor of the foregoing, and any officer, director, employee, or representative of any of the aforementioned, (you

and any authorized user, and any other person claiming through you or any authorized user, and © any other person or

company assisting us in offering Cards, administering Accounts or providing Card related benefits or services if you assert

a Claim against such other person or company in connection with a Claim you assert against any person or entity

specified in subparagraph (a) of this paragraph. All of the aforesaid persons and entities are “Covered Persons” for

purposes of this arbitration provision.

Parties to Arbitration and Class Action Waiver

Arbitration shall be conducted in the name of individually named parties. Unless all parties consent, neither you

nor we may join, consolidate, or otherwise bring claims regarding two or more accounts, individuals, or account

holders in the same arbitration, other than Covered Persons, joint applicants or authorized users of an account.

There shall be no class actions, private attorney general actions, or other representative or collective actions, in

an arbitration, even if the underlying dispute has been asserted in a court as a class action, private attorney

general action, or other representative or collective action. No party may advance a Claim in arbitration on behalf

of or against a person in a representative or collective capacity, or on behalf of or against a person who is not an

individually named party to the arbitration; nor may a party seek an award or benefit in arbitration on behalf of or

against a person who is not an individually named party. The arbitrator shall not have authority to resolve any

claim advanced by or on behalf of anyone who is not an individually named party, and shall not have the

authority to make an award for the benefit of, or against, anyone who is not an individually named party. No class

actions or joinder or consolidation of any Claim with the claim of any other person are permitted in arbitration

without the express written consent of you and us. These limitations are hereafter referred to as the “Class

Action Waiver.”

 

 

Notwithstanding anything herein to the contrary, the Class Action Waiver does not apply to any lawsuit

or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking

relief on behalf of a class of borrowers including you. This means that we will not have the right to compel arbitration of

any claim brought by such an agency. The parties to this Agreement acknowledge that the Class Action Waiver is material

and essential to the arbitration of any Claims between the parties and is nonseverable from this arbitration provision. If the

Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate (except for this

sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation

of the Class Action Waiver. You and we acknowledge and agree that under no circumstances will a class action be

arbitrated.

Decision and Appeal

The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, if the

amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably

involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by

the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider

anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote.

Reference in this arbitration provision to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has

been taken. The costs of such an appeal will be borne in accordance with the paragraph above captioned “Location of

Arbitration and Fees.” Any final decision of the appeal panel is subject to judicial review only as provided under the FAA.

Consequences of Electing Arbitration

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE

A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF EITHER PARTY ELECTS ARBITRATION. THE PARTIES

HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT

BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY EITHER PARTY. MOREOVER, IF A PARTY

ELECTS TO ARBITRATE A CLAIM, THAT CLAIM CANNOT BE THE SUBJECT OF A CLASS ACTION OR OTHER

REPRESENTATIVE PROCEEDING IN COURT OR IN ARBITRATION.

Miscellaneous

This arbitration provision shall survive termination of your Account as well as the repayment of all amounts borrowed

hereunder and shall also survive any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a

conflict or inconsistency between any other provisions of this Agreement or the rules and procedures of the Administrator,

on the one hand, and this arbitration provision, on the other hand, this arbitration provision shall govern.

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Ill have to research jams and arbitration. Not sure what either one means. Linda, opened in 07 maybe. I'm going to say defaulted in 2009 or 2010. My memory isn't the best. It was dirt bike that Suzuki put on a Suzuki credit card. I became unable to make the payments resulting in a repo.

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Hi. For starters, I live in KY and I have zero legal knowledge, nor can I afford an attorney.

Today, I was served a civil summons via sheriff from Asset Acceptance. The complaint reads:

1. The Plaintiff owns and is the holder of an account due and owing by the Defendant, and is the assignee of SUZUKI - HSBC.

2. The Defendant is indebted to the Plaintiff in the amount of $4,652.62; plus accrued interest of $517.25 as of November 19, 2012.

3. Venue is proper with this court based on the Defendant residing in XXXX county.

The rest just states the interest rate of 8% from November 19, 2012, and 12% per annum from date of judgment.

There is nothing else attached. No bill of sale, no statements, no account numbers, no date account was opened or defaulted on. Would this be because Asset does not possess any such documentation? What should I do? I definitely want to answer it, but have no idea how. Thanks in advance!!

You must answer this complaint or they will get an automatic summary judgment.

 

If you search around the boards here you will see a number of examples of how to

answer each point regarding the initial complaint.

 

Basically you will deny everything except your name, and address.

 

As to affirmative defenses....

 

Be sure to read up on standing by our Coltfan.

 

You can find it here.

 

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/

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You can answer or ask for arbitration.  It's up to you which path you choose.  Extensive information here on both.  You also need to read up on your rules of civil procedure.  It will take a little study, but you can do this without an attorney.  

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Are there templates on this website regarding how to word and form an answer when denying all allegations? Thanks so much for your replies and I hope I'm not being redundant

Basically you would want to follow the outline of your complaint that was served to you.

 

You do not want to word things as in a copy and paste like you truly can find all over the web.

 

All OCs and JDBs have seen those ad nauseum.

 

I am going to PM you to see if you have enough posts yet to reply to that.

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Thanks a lot. Ill look around when I have access to a computer. It's hard to research on a iPhone. If anyone else has any pointers, I will greatly appreciate it. I'm not even sure what to look for.

If you read the very first link racecar provided for you.... especially the first couple

of pages or so.... Linda 7 has provided the solid basics to explain private

arb for you.

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If you do want private arbitration, I would use this agreement - http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2006-HSBC-Agreement-with-JAMS.pdf

 

And here is the order I would do things.

 

I'd immediately send to the attorney and Asset a letter electing arbitration via JAMS and specifically quote the agreement where it says that you will pay $50 and you are requesting they pay the remainder of the fees.

 

Then work on your answer/affirmative defenses.  If in the complaint they state that it is in the jurisdiction of the court, etc., be sure and deny based on the fact that you elected private arbitration which takes away the rights of either party to litigate in court. 

 

Also, include as your #1 affirmative defense the fact that you have elected private arbitration.

And with a JDB, I'd also use "Lack of standing".

 

Read through the strategy and steps of arbitration thread and you'll see more of a description of how to work the strategy if you choose to use arbitration.

 

Post back if you have any questions.

 

BTW, there are a lot of members who have beat Asset in court too! 

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Thanks Linda. I read your thread and it gave me an idea of what the arbitration process is about, although I'm still confused about it. I'm very seriously considering it. I guess my questions are basic (don't laugh!): can I do arbitration on such a limited income? The $50 I can certainly do, but I'm just terrified of being socked for thousands. What happens in arbitration once all paperwork on my behalf has been mailed and filed? The matter stays out of court when I elect arbitration?

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THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE

A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF EITHER PARTY ELECTS ARBITRATION. THE PARTIES

HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT

BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY EITHER PARTY. MOREOVER, IF A PARTY

ELECTS TO ARBITRATE A CLAIM, THAT CLAIM CANNOT BE THE SUBJECT OF A CLASS ACTION OR OTHER

REPRESENTATIVE PROCEEDING IN COURT OR IN ARBITRATION.

Miscellaneous

This arbitration provision shall survive termination of your Account as well as the repayment of all amounts borrowed

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This would need to be tailored to your agreement

http://www.jamsadr.com/rules-download-rules/

Court header here

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS

OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2012, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b)IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c )YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

5. The Federal Arbitration Act (FAA) 9 USC, Section 1 § 2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration with jams to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with jams pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day ________________, 2012

(Your name typed), Defendant, pro se

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Thanks! Carefully weighing my options. Ill likely take my chances in court and will begin drafting an answer in the next couple of days. Will my defenses be listed after I address the plaintiff's complaints? How should I word my defense, seeing as how I was provided zero proof of the debt belonging to me or Asset for that matter?

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Thanks! Carefully weighing my options. Ill likely take my chances in court and will begin drafting an answer in the next couple of days. Will my defenses be listed after I address the plaintiff's complaints? How should I word my defense, seeing as how I was provided zero proof of the debt belonging to me or Asset for that matter?

Deny everything in the complaint except for your name and address, just as DonqIII stated above...Read your rules of civil procedure to find out how the chain of progression should work for you to start asking Interrogs, affirmitive defenses etc..I am sure someone from your state will be chiming in soon.  You want to make sure you follow your rules

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CR 6.04 For motions; affidavits

(2) When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59.03, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

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CR 6.04 For motions; affidavits

(2) When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59.03, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

 

I don't understand what the above has to do with answering the complaint.

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