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Arbitrate or Go the Distance


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Being sued by the infamous M & J in Colorado and have filed my answer with the court. This is with a collection agency represented (owned) by M & J, not the OC. Now waiting to set up the pre-trial with these knuckleheads.

 

As there is some uncertainty on the SOL in Colorado being three years vs. six years I have some concerns that the 6 year SOL could prevail. My last payment was in 2007. My other defenses are the normal, they have no paperwork, chain-of-assignment, etc.

 

I would like to get some prior winners (especially Colorado) to weigh-in...Should I fight this through the court system or force them to initiate arbitration?

 

If I fight, wouldn't it be prudent to for me to get discovery questions in order so I can get them filed before the snap legal eagles get theirs' ready and filed? (Not yet sure when I can file them, before pre-trial is set or after...need to look that up)

 

If I arbitrate, what is the experience with these guys? Do they usually just dismiss or do they go ahead and initiate? If initiate, what is the prevalent outcome?

 

Thanks everyone!

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In arbitration you have to forego several good defenses such as prove there is an account, prove I am tied to the account, SOL, and so on. To you have hit the nail on the head about discovery. Can you get a better result in arb it depends.

 

Typically arb is a good strategy if the amount is lower than the fees ie 2200.00 vs 12K in fees. If it is for a higher amount they may initiate and then you get into the eccentricities of the arbitrator.

 

for court you could use choice of law provision against them, the strict burden of proof on them, and the clear fact of their ability to get the evidence authenticated. So if you have to plead SOL from the start which I believe you do in Colo., you have to fight early.

 

If they are claiming breach of contract and account stated but have the typical vague complaint maybe moving for more definite statement  is a good short term strategy to find out whether to arbitrate or litigate in court.

 

As a personal matter I would litigate because you have state authorities and I believe that people have won in court in Colo.

 

As a practical matter once you move to arbitrate you are stuck with it. and once you conduct discovery you are stuck with that.

 

So for cases 5K or less arb is a good strategy for cases larger then litigation may be good. You said that the case is older the odds of them having documents for state court may be slim. It may be better to litigate in state court.

 

Just my .03 (.02 adjusted for hyperinflation)

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Need more information

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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

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

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.

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?


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

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Need more information

 

1. Who is the named plaintiff in the suit? Active Collection Agency

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? ~$3000.00

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

5. How do you know you are being sued? (You were served, right?) Already went to initial court date

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?  CO, Adams

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Mid 2007

11. What is the SOL on the debt?  Depends, some say 3 yr, some say 6 yr

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

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. Technically, yes. After service and before suit was actually filed (pocket service)

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? No interrogatory, claiming alphabet soup including Express Contract, Implied Contracr, Quantum Meruit, Liquidated Debt form Contract, Account Stated, Unjust Enrichment, Agreed Interest or Statutory Interest

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.Zip, not a thing

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I'd never go arbitration personally, ever, but for 3K and you asking where you "file" discovery, which you don't file, arbitration election might get them to go away. 

 

It will cost them more than 3K to arbitrate this.  You did say you've already filed an answer with the court.   You might have already conceded jurisdiction of the court and waived your right to arbitrate by filing an answer instead of motion to compel arbitration in lieu of an answer or some other pleading indicating your desire to enforce the arbitration clause.  Key word is might, I have no idea about Colorado.  I know in Florida you would have just waived your arbitration right.

 

As far as the SOL go, expect every attorney to tell you six years as the safe answer.  In Arkansas it's three or five years.  I was sued at the four year mark.  100% of the attorney's I called said hands down you have no shot at three years and look at other defenses or settling. 

 

So I did the next logical thing, told everybody to go shove it, went pro-se, argued the three year statue, go oral arguments which I had prepared a month for and the other side's only argument was "well everybody just knows it's three years judge" and whipped their a$$ and won on the three years and got their case tossed.  However, I love nothing better than being told something in court can't be won and I just need to give up on an argument. 

 

Of course my next stop was suing them for suing me on a past the SOL debt.

 

A SOL defense, when it's not clear cut, is going to be a battle.  You will just have to out lawyer the other side because they are going to take the position that it's not even open for debate and the answer is so obvious it's six years that any argument to the contrary is frivolous and a waste of the courts time.   You'll also need oral arguments, in my opinion, as I don't think I would have ever won my argument just having it ruled on the pleadings only.  It was a detailed question and answer session with the judge. 

 

Then of course, I'm not so sure I did not win just because the other side was so unprepared that it might have just ticked off the judge how much time and work I had done while the other side could just "but we're right Your Honor and he's wrong"  They even went so far to say there are numerous cases such as this that establish a three year statute of limitations.   Then when I stood up and said, care to cite any, they just gave me a go to hell look but could cite none, because they were not prepared. 

 

There is my two cents, good luck !!

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Now for a different tack. Coltfan and I prefer to dig the hole and let the hapless JDB fall into it, but that's just us. For us it's a sport. For you, it may just be an inconvenience to be sued. Here's the good news. This thing is DOA in my opinion, and you may have a countersuit as Coltfan outlined above, suing on a time barred debt. Colorado has a "borrowing statute." This means that CO allows you to impose the SOL of the creditor's home state. Creditor = WAMU=Chase=Delaware=3 year SOL. 3 years ain't 2007, sorry. The statute is C.R.S. 13-80-110. A motion to disdmiss is in order, and a countersuit attached.

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