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Been fighting ...what if i lose?


Bubba1012
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I have a credit card law suit ongoing that I am trying to get to arbitration. Its a long story but Im not so sure its going to get there. If it goes to court what can actually happen?  A few details below.

 

- I live in Ohio

- I am unemployed and have been for over a year....duh....that's the reason I couldn't pay them

- My wife works but her income is minimal

- I spent my 401k to get my company up and running and keep my head above water...no money left there at all

- I own my own LLC business that that is a partnership and I don't take a check from......all monies go into our company bank account

- I own my own home but the bank own most of it.....we bought for 200k and still owe 180k

- I have a vehicle that is paid off and have another that I have a loan on

 

 

My biggest concern is my home.

 

If I were to lose a judgement what could they actually do to me with no real income?

 

Bubba

 

 

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They would go for the second car (the paid off one) and put a lien on the house then call you in for a debtors exam. How come you are not asking what can I do to win? But you did ask a good question so I answered. You might get arbitration I believe it would be a big error to disallow it.

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.- I live in Ohio

- I am unemployed and have been for over a year....duh....that's the reason I couldn't pay them

- My wife works but her income is minimal

- I spent my 401k to get my company up and running and keep my head above water...no money left there at all

- I own my own LLC business that that is a partnership and I don't take a check from......all monies go into our company bank account

- I own my own home but the bank own most of it.....we bought for 200k and still owe 180k

- I have a vehicle that is paid off and have another that I have a loan on

 

If I were to lose a judgement what could they actually do to me with no real income?

 

Bubba

 

-Living in Ohio is the first big problem.  Ohio is VERY creditor friendly and the initial judgment will be for 21 years!  It is renewable as well.

 

-They cannot garnish your wife's wages.  However, if her paycheck is deposited into a joint checking account with your name they CAN garnish that.  Get your name off of the bank accounts ASAP or have her open her own separate account.

 

-They also cannot garnish the bank account of the LLC as it is a separate legal entity.  Well at least LEGALLY they are not supposed to but if they do you could spend months undoing it.

 

-They can get a lien on the house which means you will be unable to sell or refinance until it is satisfied.

 

-While they could go after the paid off car most creditors do not due to the minimum homestead exemption every owner is entitled to and that the value of the car compared to what they would get at auction and the actual cost to seize and sell it is nothing.

 

So while you may not have any personal income now, because Ohio grants an initial judgment good for 21 years you are going to be stuck with this for a long time if you lose.  Even longer if they renew or get a lien on the home.

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A judgment lien must be renewed every five years. This lien will only be enforceable as long as the judgment is in force. Note, although a judgment is valid for 21 years, a lien recorded pursuant to that judgment must be renewed every 5 years.

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It appears that the 21 year SOL for judgments was changed.  Cadles of Grassy Meadows, II, LLC v. Kistner, 2010 Ohio 2251 - Ohio: Court of Appeals

 

 

 Furthermore, Cadles argued that the current version of the statute of limitations does not apply because at the time the judgment became dormant, the statute in effect (R.C. 2325.18, effective October 1, 1953) provided for a 21-year statute of limitations for revivor proceedings.

{¶ 6} The trial court determined on September 22, 2009, that the judgment became dormant on March 12, 1992, and that revival of the judgment was barred because R.C. 2325.18(A), effective currently, requires that the judgment could only be revived within 10 years and that more than 17 years had passed since this judgment became dormant. Cadles sought an appeal from this judgment.

 

 

2329.07 Judgment may become dormant.

(A)

(1) If neither execution on a judgment rendered in a court of record or certified to the clerk of the court of common pleas in the county in which the judgment was rendered is issued, nor a certificate of judgment for obtaining a lien upon lands and tenements is issued and filed, as provided in sections 2329.02 and 2329.04 of the Revised Code, within five years from the date of the judgment or within five years from the date of the issuance of the last execution thereon or the issuance and filing of the last such certificate, whichever is later, then, unless the judgment is in favor of the state, the judgment shall be dormant and shall not operate as a lien upon the estate of the judgment debtor.

 

 

2325.18 Limitation.

 

(A) An action to revive a judgment can only be brought within ten years from the time it became dormant, unless the party entitled to bring that action, at the time the judgment became dormant, was within the age of minority, of unsound mind, or imprisoned, in which cases the action may be brought within ten years after the disability is removed.

 

I could not find if a judgment could be renewed indefinitely.

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I have a credit card law suit ongoing that I am trying to get to arbitration. Its a long story but Im not so sure its going to get there. If it goes to court what can actually happen?  A few details below.

 

- I live in Ohio

- I am unemployed and have been for over a year....duh....that's the reason I couldn't pay them

- My wife works but her income is minimal

- I spent my 401k to get my company up and running and keep my head above water...no money left there at all

- I own my own LLC business that that is a partnership and I don't take a check from......all monies go into our company bank account

- I own my own home but the bank own most of it.....we bought for 200k and still owe 180k

- I have a vehicle that is paid off and have another that I have a loan on

 

 

My biggest concern is my home.

 

If I were to lose a judgement what could they actually do to me with no real income?

 

Bubba

 

Ohio judgment exemptions

 

BV80 correctly notes that lien upon real property goes dormant if not renewed within 5 years of execution. As for the judgment itself, it is good for 10 years unless a new action to renew the judgment is filed. 

 

Finally, you need to figure out whether you have an LLC or a partnership. It cannot be both. And it does matter. How you pay yourself also matters.

 

Ohio garnishment law

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Ohio judgment exemptions

 

BV80 correctly notes that lien upon real property goes dormant if not renewed within 5 years of execution. As for the judgment itself, it is good for 10 years unless a new action to renew the judgment is filed. 

 

Finally, you need to figure out whether you have an LLC or a partnership. It cannot be both. And it does matter. How you pay yourself also matters.

 

Ohio garnishment law

Business is an LLC. There are 2 owners..... myself and my partner. I do not pay myself as of right now. All $s go into the company account. Eventually, I will begin to take quarterly draws. There may also be a time in the future that I would also take a weekly paycheck.

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In Ohio a judgment becomes an automatic lien on real estate.  What is actually done, if you are in a muni court, and get a judgment against you, the muni court prepares a certificate of judgment lien.  The judgment creditor takes that to the county court of common pleas and files it there.  It will look as if a new case was filed against you in the court of common pleas, Creditor v. You, but it's just the filing of the judgment lien.

 

Since you only have about $20K of equity in the home, and the Ohio homestead exemption is over $20K, they won't take your house.

 

The best thing to do is concentrate on winning.  Who is the plaintiff?  If it's a JDB, you can win.

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Creditor is Bank of America being represented by Javitch Block and Rathbone. I have been trying to get this into arbitration for 5 months now. I filed motion to dismiss or stay case pending arbitration and had it denied. Plaintiff states that arbitration clauses have been removed from all of their credit agreements but has not shown a document proving this. They also state that due to the fact that I filed an Answer letter I have participated in litigation and given up my right to arbitration. In my answer letter I clearly stated that I was opting for this matter to be resolved by private arbitration per the credit agreement.

 

I have since filed a motion for reconsideration. Below is a copy of my motion.

 

 

IN THE XXXXXXXX MUNICIPAL COURT

XXXXXXXX COUNTY, OHIO

 

FIA Card services, N.A.                                                             CASE NUMBER: XXXXXXXX                        

 

 

 

 

 

 

DEFENDANT’S MOTION FOR RECONSIDERATION TO DISMISS OR MOTION TO STAY PENDING ARBITRATION

 

 

 

                        Plaintiff                                                             JUDGE

 

 

v.                                                                                            

XXXXXXXXX   

                        Defendant

 

Now comes the Defendant, Pro Se, and hereby files Motion for Reconsideration of Motion to Dismiss or Motion to Stay Case Pending Arbitration.

Plaintiff has stated that the “Credit Agreement Changes” document supplied as “Exhibit “B” by Defendant in said Motion to Dismiss or Alternatively Motion to Stay Case Pending Arbitration is invalid and that the Plaintiff is unaware of where said document was obtained. Attached as Exhibit “B” to this Motion is said credit agreement with Plaintiff along with sworn Affidavit.  Plaintiff states it has removed all arbitration clauses from consumer agreements such as this. However, the Plaintiff has provided no document showing the removal of the arbitration clause. The Plaintiff should at a minimum be required to show proof of such a statement. Regardless, the arbitration clause in the “Exhibit B” provided by defendant also specifies that “This arbitration and Litigation Section applies to all Claims now in existence or that may arise in the future. This Arbitration and Litigation section shall survive the termination your account with us as well as any voluntary payment of the debt in full by you, any bankruptcy by you, or sale of the debt by us”. It also states “YOU UNDERSTAND AND AGREE THAT IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, THIS ARBITRATION SECTION PRECLUDES YOU AND US FROM HAVING A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH COURT, OR PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION IF YOU OR WE ELECT TO ARBITRATE. It should also be noted, that if Arbitration clause was actually removed as claimed, no charges were made to said account after removal of clause. Plaintiff has not provided evidence that said clause was ever removed however.

Also as stated previously, Ohio Revised Code, Section 2711.01(A) states that “A provision in any written contract… to settle by arbitration a controversy that subsequently arises out of the contract, or out of the refusal to perform the whole or any part of the contract…shall be valid, irrevocable, and enforceable, except on grounds that exist at law or equity for the revocation of the contract.

Finally, it should be noted that The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION 131 S. Ct. 1740 (2011), 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.

 

  1. Plaintiff states that rights to arbitration have been waived.

 

  1. Answer letter was filed by Defendant as stated by Plaintiff per direction from courts due to the fact that the defendant did not wish to be considered to be in default. It should be noted that in answer letter, it was stated “If said contract includes an arbitration clause, defendant elects resolution of said matter by private binding arbitration and would file Motion to Compel Arbitration.” Arbitration clause was asserted in the Answer and there was no delay in doing so. It should be very clear that the defendant was requesting resolution by means of arbitration.
  2. Plaintiff has stated that the right to arbitrate can be saved by seeking the enforcement of the Arbitration clause and that this may be accomplished by application to stay the proceedings. Defendant has obviously requested the Stay of Proceedings and has included “Exhibit A”, letter to Plaintiffs counsel, asking them to initiate Arbitration as part of this request and there was no delay in doing so. Again, it should be very clear that the defendant was requesting resolution by means of arbitration.
  3. Plaintiff has stated that Defendant has engaged in Discovery. Defendant did not engage in Discovery. The Plaintiff actually engaged in Discovery and documents were returned to Plaintiff’s counsel stating "I object, the jurisdiction of the court has yet to be determined, given that an election for private arbitration has been submitted per cardmember agreement, which waives plaintiffs right to litigate.". This could also be perceived as unfair debt collection practice as Plaintiff continued to pursue litigation after Defendant had made it clear that this case was to be resolved in arbitration.

 

 

 

 

  1. Plaintiff states that the Arbitration clause within the Credit Agreement supplied by Defendant is impossible to perform.
  1. The Plaintiff is accurate in stating that the National Arbitration Forum (NAF) no longer administers or oversees consumer arbitration matters. The plaintiff is also correct in stating that the American Arbitration Association (AAA) will no longer accept new credit card arbitration cases. This was clearly pointed out in Defendant’s “Exhibit A” letter dated February 25th, 2013 and that at this time the only arbitration forum handling such cases is JAMS. I am attaching “Exhibit A” a copy of the JAMS application and Demand for Arbitration Before JAMS. The fact that the Plaintiff states that there is no acceptable arbitration forum and that the courts need to rule on this dispute is inaccurate and misleading.

 

 

  1. Conclusion
  1. The Defendant has not consented to the jurisdiction of this honorable court and the Defendants Motion to Compel Arbitration should be accepted. The arbitration and Litigation Section of supplied Credit Agreement states that “it applies to all Claims now in existence or that may arise in the future” and that “This Arbitration and Litigation section shall survive the termination of your account with us as well as any voluntary payment of the debt in full by you, any bankruptcy by you, or sale of the debt by us”. The defendant has filed timely Answer response indicating that this matter was to be resolved via arbitration. The Defendant also filed timely Motion to Dismiss or Stay case Pending Arbitration along with Motion to Compel Arbitration. There is an acceptable Arbitration forum currently being used (JAMS) and that would arbitrate this case. As a result, arbitration would be the proper and capable forum to resolve this dispute. Therefore, and in conclusion, Defendant respectfully asserts to the court that his Motion to Dismiss or Motion to Stay Case Pending Arbitration should be reconsidered and accepted.

 

Respectfully submitted,

XXXXXX

Defendant, Pro Se

 

 

 

I have considered filing a countersuit in Federal Court for Breach of Contract. I have also wondered if I can sue for unfair debt collection practices as they are trying to litigate through the courts when I have clearly stated this matter is to be resolved by private arbitration per Credit Agreement.

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  • 3 weeks later...

I received copy of the plaintiffs response this weekend that they have fled with the courts and should see response from courts this week. Plaintiff states that I am not allowed to file a Motion for Reconsideration in a Civil case, that regardless of what I have stated in my motion it does not matter as I already filed my answer letter, and finally that the copy of the credit agreement doesn't matter as arbitration is impossible to perform.  Is one not allowed to file a Motion for Reconsideration in a civil case in Ohio?

 

Bubba

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  • 1 month later...

I have had everything denied now.....think im at the end of the rope. I received a notice from the courts this week that a pre tril telephone conference is scheduled for July 16. Today I received a Motion for Leave to File Motion for Summary Judgement Instanter" I have no idea what this is but it looks like they are asking the court to just give them a judgement without going to court. Im lost at this point. I have no idea where to go from here. Just about to the point of saying "fine you win...now get blood from a turnip"

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I have had everything denied now.....think im at the end of the rope. I received a notice from the courts this week that a pre tril telephone conference is scheduled for July 16. Today I received a Motion for Leave to File Motion for Summary Judgement Instanter" I have no idea what this is but it looks like they are asking the court to just give them a judgement without going to court. Im lost at this point. I have no idea where to go from here. Just about to the point of saying "fine you win...now get blood from a turnip"

Plaintiffs asking for that is common practice.  It gets opposed all the time.  What defendants do that is equivalent is move for dismissal, with prejudice.  That gets opposed all the time by plaintiffs, too.

 

It reminds me of the little scene on a TV show where two kids are pillow fighting.  Mom walks in and the kids complain about what the other did.  Mom says "work it out like adults" and walked out.  One kid says "you'll hear from my lawyer".

 

Lawyers do play these games all the time.  It's what they get the big bucks for.

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oppose the motion.  If they get a summary judgement, I would file and kick it to the appellant court.  If you answered electing arb, the appellant court should rule in your favor.  I hear Ohio courts are very pro plaintiff, so if the appellant court is fair, it should kick it to arb. Was your motion to reconsider denied? I guess I missed that part.  Your most important task now is to oppose the MSJ, your issues of material fact are 1. your arb election, and did you deny the debt?

Do a search for ohio motion summary judgements, I bet you can find a good guide on what to put.

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  • 3 weeks later...

Summary judgement was granted by the municipal court. Im at a loss now. I understand that I can appeal but have no knowledge of this process nor do I understand how I go about doing this. My only grounds of appeal are that the case should have been heard in arbitration and not the court system.

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