Asset Acceptance - CA/OR/TX or UT - a mess - need some quick help

[CountryLady]

I apologize if I am not putting this in the right place. I'm really not sure what I need right now....I just know I need some help.

 

I will write it all out, but what I need really quick is a way to have the arbitrator give me more time to figure this out.  This is based on:

 

Debt incurred in 2003 in California (Dell Financial/CIT Online). Started at $1300+, Johnson Mark LLC is now demanding over $4,000. I was on disability until 2008. Was on unemployment from 2012DEC - 2013JUN, state of Calif.  Husband paid on my debt until 2010. April was the last payment.  My part time job was not enough to pay bills. Tried to work it out, Dell sold debt to a CA who sold it to AA who hired Johnson Mark LLC. 

 

Last payment made 18Apr2010 while living in Calif.  Charged off in DEC2010. Husband made one more payment 2011JAN. I was still resident of Calif, husband had xferred to OR. I stayed behind with daughter so she could finish the year out at her school. 

 

SOL expired 2013JAN if can go by the date after charged-off or 2012APR if before charge-off.

 

2013MAR, I was served by a Process Server from Calif while I was in Oregon looking for a job.  I got a part time job in Oregon in 2013JUN, went off unemployment.

 

I have responded to everything on time. I had no paperwork, no copies of contracts because there wasn't one. It was a phone order, never rec'd anything.  I printed off a standard Terms of Service from Dell's website, it says the laws of the State of TX apply. Johnson Mark, in their discovery copied some agreement (not from Dell's website) that says Utah on it.

 

In original response to their Summons, the first thing I brought up was the SOL. Filed on 2013APR15 with the Circuit Court here in town. 

Johnson Mark never addressed the SOL. Until now.  They just ignored it. They have responded via a letter with no format..just a letter. It took them 71 days to respond.  That just doesn't seem right to me. I have to respond on everything within 30 days and they get to take their sweet time?  That's not right.

 

Our date for arbitration is set for tomorrow morning 08JUL @ 1100 PST. On 02JUL, this past week I got a letter from Johnson Mark. It says, "I apologize for the tardiness of the letter as it is the eve of arbitration; however, I felt that by providing this argument prior to the hearing the parties would have an opportunity to independently confirm my research on the issue raised by Defendant in her answer"  They go on to say I do not dispute the last payment made in 2011JAN. Why would I? It happened. Then they say that "Exhibit 6 of Plaintiff's previously submitted arbitration brief is the terms governing the account that is subject to this cause of action. At page four of this document it states that the contract is governed by the laws of Utah". Well, this is garbage. I've never seen that paper until they sent it and they did not prove it was my agreement. They just attached it and said it was.

 

Then they go on to talk about Utah law and 6 years...."upon any contract, obligation, or liability founded upon an instrument in writing..." There is nothing in writing. It's an open-ended phone order. I never signed anything. I never saw anything. It's just...garbage.

 

I have been frantic this week trying to figure out what they sent. I don't know law, I don't know what I'm looking at. I don't know what is allowed and what is not. And I sure don't have the money to just up and pay an attorney $750 to handle this. I've tried to hire an attorney, but no one will take payments, so I am stuck doing this myself. Which, is okay, if I can figure it all out.

 

Everytime I look at this, I break down and cry. I don't even want to open the file anymore. It's become too much. I think I'm in over my head here.

 

In my researching, I was checking each and every document they put in their discovery. One was the affidavit from the employee of AA. How would he know if I had an agreement? I have no clue who this guy is. How would he know how much I agreed to..or what the terms of our phone call were?  That bothers me. 

 

Another thing that just seems illegal....the process server. Her affidavit says she is and always has been a resident in the State of which she is serving and she signed it saying yes, crossed out the state of california, and hand-wrote in Oregon. I thought that odd so I facebooked her. She lives in California, her company lists her address as california, the notary lives about 4 hours to the east of me. She is 40 minutes south of me. I am in Oregon now and will claim residency here this year.  The notary is a family-member, as stated on her facebook page...a photographer and he manages the office in oregon.

 

This just seems fraudulent to me.

 

So, all I want to do tomorrow is get more time.   I went to the courthouse on Friday and was told not to cry anymore and to just call the Arbitrator in the morning (their offices were closed the 4th & 5th..I did not try on the 3rd) and ask for more time. I asked what to do if he says no and she said to just show up and "hope for the best". Well, that helped. LOL

 

After this is all said and done, I want to sue AA and Johnson Mark LLC.  AA lost a suit this past year to the tune of $2.1 million being fined them for not disclosing to debtors that the SOL's were expired. I'm sure there is more to that, but they do have to do a few things and none of it was done for me...hence my suit against them (dang, I hope it's valid).

 

Does anyone have any thoughts on how I might get the arbitrator to give me more time? If so, how do I do this? I can't drop off a written request, he's 100 miles away.  

 

Anyone?

 

Thanks so much in advance.

 

 

 

[TomnTex]

Welcome to the board. Hopefully Calawyer our resident attorney in Calif. or NASCAR can jump in here as well as several of our other attorneys and local gurus like Racecar or BV80 can also give you some help.

[admin]

Calling @Linda7....

[CountryLady]

Thank you, Tom, for referring me to this board. I figured you would figure out who I am just by what I post. Glad you did. I got a few other private messages suggesting this site as well. I appreciate it.

 

Linda, I am so sorry, I don't know what your comment means. But..thank you for responding!  LOL

 

 

[Huey Pilot]

Usually you can determine the date of last payment from a credit report. That will officially be the date the clock starts in Oregon. The Oregon Statute of Limitations (SOL) is six (6) years. So if you are beyond that then you have a good case. Typically you would state that in your answer. You should motion for dismissal for SOL if that's the case.  If you have already been assigned to Oregon Court Adjoined Arbitration you would file your motion with the Arbitrator as well as the Court Clerk to preserve you notification. 

 

Johnson Mark out of Newberg, Oregon are not the brightest bulb in the chandelier but they will pursue regardless of the status and try for a judgment. So don't let them. Motion the arbitrator for dismissal and file your motion with the Court so you preserve your record. More that likely this creditor friendly Arbitration program will be an automatic loss for you anyway. You will then have to pay the extra filing fee to this greedy state for trial de novo and more then likely it will be dismissed. 

 

Get on this immediatly and don't let them get the Judgment. You can later do all the FDCRA filling and counter after you take care of this. 

Memorandum of Points and Authorties for Motion to Dismiss - CIC FORUM USAGE.doc

Motion to Dismiss Time Barred - Boat Boy.doc

[CountryLady]

Thank you, Huey. I have spent the past hour or so editing both documents with my information. There is one thing, however. The SOL expired in California before I settled here. There is a 2 year SOL in California for verbal agreements. It expired on either April 18, 2012 or January 11, 2013. Either way, it was before Johnson Mark served me.

 

Under Oregon law, I don't think the SOL has expired.

 

The big question is what state's laws are we using?  It seems because they filed in Oregon, using Oregon codes in their briefs that they are deferring to Oregon law.  Is this correct? If so, then Utah and Texas don't even play into it.  But according to what I read in a link provided me on the debtorboard website, because I was a resident of the State of Ca and that is where it all started, the SOL expired in California before I moved.

 

At the end of this month, I will return to Calif probably for one of the last times to see my doctors (I have to maintain calif residency to keep my doctors down there) and to be referred to a facility in Oregon for further medical care.

 

I don't think the Court will make me pay the filing fee. I paid the first one, using my entire paycheck, and was told by the clerk when I went in in a full panic with no money to pay the arbitrator, that I qualified for a waiver. I completed the form and was granted it by the Judge here. I will fill out another one in the morning and do the same thing.

 

Is there any language I can use when I ask the Arbitrator to give me more time?  I will still file this right away, but our phone call is at 1100 tomorrow. I just can't be ready for it. I wasn't given enough time.

 

Thanks in advance.

[CountryLady]

Oh, and one more thing. I read the Terms of Sale from the Dell website. It says if they initiate arbitration, they agree to pay all fees, costs, etc. Does this transfer over to Asset Acceptance?  It looks like they should be paying all my fees through the Arbitration.

 

Thanks.

[racecar]

Yes they would fill the shoes of the original creditor.

Defendants Motion for Continuance for the production of new evidence

[CountryLady]

Racecar, I am so sorry, but I'm trying to figure out just what you are telling me to do.  I am not the sharpest tack on the board where law is concerned, and am feeling helpless.

 

I called the Arbitrator's office and was told to call in at 1100 and the Arbitrator will "walk me through it". So I don't get to present anything. Emotions are getting the best of me.

 

I am searching your statement "Defendants Motion for Continuance for the production of new evidence". I figure you are either telling me to do this or to just put that on the piece of paper. 

 

I have the motion to dismiss verbage and I think it's right...based on what was given me last night. I am taking that to the court as soon as I figure out your comment and will see if I can file to waive the fees again.

 

Thank you everyone for the bit of help. There is so much more to this but as I said, today, my focus is to just get more time.

 

Oh, and one more thing.  What about Oregon's borrowing law?  I meet the requirements. Cause of Action was in California. I was in California. Johnson Mark is in Utah, Asset Acceptance is in Michigan. How can bring that into all this?

 

I'll let you all know.

 

Thank you again. 

 

(I will be trying to find an attorney to help me out...if anyone can recommend anyone, please PM if you'd like to)

[TomnTex]

What Admin was suggesting was, that Linda7 help you out. She is our expert on arbitration. That may be a route for you to go. It's not the Oregon mandated arb, but private arb that can run them off. Look up her threads on arb.

[admin]

What Admin was suggesting was, that Linda7 help you out. She is our expert on arbitration. That may be a route for you to go. It's not the Oregon mandated arb, but private arb that can run them off. Look up her threads on arb.

Yes, that's what I was suggesting is to recruit Linda7.  You might want to PM her and send her a link to your thread.  

[admin]

 

Oh, and one more thing.  What about Oregon's borrowing law?  I meet the requirements. Cause of Action was in California. I was in California. Johnson Mark is in Utah, Asset Acceptance is in Michigan. How can bring that into all this?

 

You are in arbitration, not court, the rules are different - you don't get to bring in court rulings, etc. 

[Linda7]

Just got here!

 

Are we talking about court arbitration or did you elect private contractual arbitration and if so - what forum did you choose - JAMS (I hope) or AAA?

[Linda7]

Okay, it seems that you're in court arbitration which you "don't" want.

 

I don't know how this will work out for you due to the lateness of us knowing about this.

 

If it had been me, I would have elected JAMS arbitration and sent a notice to the attorney and to Asset. 

 

In my answer to the court, I would also have addressed the fact that I had elected private/contractual arbitration per the terms of the governing agreement.  I would also have used that fact as an affirmative defense.

 

I would also have cited your state's arbitration act and I would have filed a MTC arbitration with the court.

 

As for using SOL as a defense - I don't think that will fly.  I believe somewhere I saw that a last payment was made in 2011 and I don't believe they will use this as an oral agreement. 

 

If it were me for today - I would try and convince the court that I need more time as a recently discovered agreement shows that I have a right to private/contractual arbitration.  I think I would actually have faxed a notice to Asset and the attorney "now", so that I could tell the court that they have been notified.  Then I would follow up by sending them CRRR.  It would have been good to also hand them a MTC arbitration with the court - but, I know time has slipped away for today.

[CountryLady]

Thank you so much, Linda, for responding so quickly.

 

I guess I'm learning something in all this.

 

I was so upset that I was just told "no" and "make the call" that I ran, did not walk, to the court...handed them their own copy of the Motion for Continuance that was suggested earlier in this thread.  The Clerk smiled and said "good job".  She stamped it and put it in my file.

 

I faxed copies to the Arbitrator and to Johnson Mark.

 

I phoned in at 1055 and waited.  The Arbitrator sounds like he knows what he is doing...the Attorney for Johnson Mark sounded like a kid. Both were very polite.

 

The Arbitrator stated what he had received which included the letter dated 27JUN that they did not get until this morning (yay!). I then asked if they'd received my fax.  They both went to check and both advised they did have the fax in hand.  The Arbitrator stated he understood why I was asking and asked the Attorney if he had any objections. There was some hesitancy but he finally said, "We are here to find the truth. No. She can have more time."

 

The Arbitrator has given me until 29JUL 1530. He did advise me to send in discovery ASAP and to copy Johnson Mark. He then suggested an attorney would serve me well; to notify both (and the Court) if I am able to hire one.

 

It went so much better than I thought it would.

 

I was never given an option about Arbitration. I saw that in the Terms of Sale, but it was after the Court just did it. I filed my response thinking I would get to go to court. I received a letter from the Court telling me to choose one of those listed on the letter. It made no difference to me at the time, so I was just as amiable as could be and told the Court it didn't matter. They assigned one. The form they sent with the list of the 4 arbitrators has a box checked that says it is going to arbitration because it is less than $50,000. As I read that, the Court was just tossing it into Arbitration regardless.  In the summons, there was nothing that stated binding arbitration (I don't think...I'll have to read it again).

 

At no time did I even have a clue I could elect Court. I would much rather do that. 

 

I did not know about JAMS at the time. But it does say in the agreement that one would be chosen from JAMS or ARB(???). I just assumed that the one chosen was from JAMS.

 

I trust too easily.

 

Is it too late to request private arbitration or to fix what I've done wrong?

 

So on the upside....I have more time.

 

I would like to hire an attorney. I don't really know how to do it without having money to pay up front. What are my options?

 

Thanks so much for responding so quickly, Linda. I wish I'd found this site a few months ago when all this started!

 

A huge thank you to all of you that found me on the other website and steered me this way. You can not imagine how much I appreciate it and how thankful I am that you all care.

[Linda7]

Did you read the thread I sent regarding arbitration?  I don't think you understand the difference in court arbitration and private contractual arbitration.

 

As for it being too late - a lot of states will say that you waived your right to private arbitration if you participate in discovery, etc. 

 

I don't know your state's rules, but I think at debtorboards there were some Oregon members.  I would make a post in their arbitration forum and ask if it is too late or how the procedures work in Oregon.

 

If it were me, I would "not" participate in anything court related, discovery, etc.  I would first send that notice of election of JAMS arbitration to Asset and the attorney.

 

Then per your state's arbitration act -

§ 36.620¹

Validity of agreement to arbitrate

• • form of acknowledgment of agreement

(1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.

(2) Subject to ORS 36.625 (Petition to compel or stay arbitration) (8), the court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

 

I would immediately file a MTC arbitration.

 

Is it too late?  I honestly don't know - but, I do know that if you want private arbitration and don't at least try "now" . . . you'll never get to use it.

 

Be sure and read in our arbitration forum - The Strategy and Steps of Arbitration and you'll get a better understanding of how this works.

[racecar]

Defendants Motion for Continuance

your asking for more time the excuse I was using was for the production of new evidence.

You may have a different reason for the continuance.

1.defendants name and the case number

2.date and time of the hearing that the continuance request is being made for

3.explain the reasons that the continuance is necessary

4.Sign and date the request

5.File the request with the Court

6.check and make sure that the Court has your current mailing address

[racecar]

She's in the courts arbitration where three local attorneys are the judges correct

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ this is the link for lindas strategy and steps of arbitration

[CountryLady]

Thank you, Racecar.

 

I decided to act on the thought that you were telling me to file.  So I just took one of the motions that was linked in here and made changes on it. 

 

It had all the information you just stated I needed to include.  You saved me!  Thank you. 

 

I used the wording "Defendants Motion for Continuance for the production of new evidence" in the header as well as in the body. I brought up the dates and that as I am unversed in law that I needed time. 

 

I don't think I'm in Court arbitration.  It's just the one arbitrator, me, and the plaintiff's attorney. It started out with a court filing/summons issued. Then went straight to choosing an arbitrator...it's the plaintiff's attorney that is filing all this fancy stuff. I'm not having to pay fees for taking copies to the Court. They just put it in my file.

[Linda7]

Thank you, Racecar.

 

I decided to act on the thought that you were telling me to file.  So I just took one of the motions that was linked in here and made changes on it. 

 

It had all the information you just stated I needed to include.  You saved me!  Thank you. 

 

I used the wording "Defendants Motion for Continuance for the production of new evidence" in the header as well as in the body. I brought up the dates and that as I am unversed in law that I needed time. 

 

I don't think I'm in Court arbitration.  It's just the one arbitrator, me, and the plaintiff's attorney. It started out with a court filing/summons issued. Then went straight to choosing an arbitrator...it's the plaintiff's attorney that is filing all this fancy stuff. I'm not having to pay fees for taking copies to the Court. They just put it in my file.

You are "definitely" in court arbitration.  What you want is private/contractual arbitration via JAMS.  This is not what you have! 

 

You would have to elect it per the agreement "and" file a MTC with your court to get it. If the judge decides you are entitled to it, he would then court order both parties into arbitration.  He would either dismiss the case w/o prejudice or more than likely "stay" the case pending arbitration.  Upon your initiation of JAMS upon all parties and sending in paperwork to JAMS, you would then wait to be contacted by JAMS. 

[Linda7]

Go to debtorboards arbitration forum here - http://www.debtorboards.com/index.php?board=121.0

 

Once you're in the forum, click on "search" and put in Oregon arbitration.  It will pull up two pages of posts regarding your state and arbitration.

[KentWA]

Whatever you do when if they attempt to use the "Utah Agreement" object, object, object. As soon as they start to present it object right over the top of what they are saying. Show them your Texas agreement and state that is the agreement that was provided directly by Dell. The "Utah Agreement" is provided by a third party "AA", that was not party to the original contract. As such plaintiff is misrepresenting facts to the court.

 

On the Utah SOL for written contract, their argument is total BS, and I would be saying to the arbiter and court they are misstating the law. Utah law states:

 

78B-2-309.   Within six years -- Mesne profits of real property -- Instrument in writing.

            An action may be brought within six years:

            (1) for the mesne profits of real property;

            (2) upon any contract, obligation, or liability founded upon an instrument in writing, except those mentioned in Section 78B-2-311; and

            (3) to recover fire suppression costs or other damages caused by wildland fire.

 

 

Also according to  70A-9a-102(47)(, an "instrument" does not include "writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card", is not an instrument in writing. 

 

70A-9a-102(47) (a) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.

            ( "Instrument" does not include:

                  (i) investment property;

                  (ii) letters of credit; or

                  (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.

[TomnTex]

I told you that you would be in good hands here!

[calawyer]

Look at the Utah agreement they gave you.  Scour it for a date.  Look at the very bottom and see if there is not something in very small writing that says "rev 2/10" or something like that.  If so, that is the "revision date". In other words, using that example, Feb, 2010 would be the date upon which the agreement was last revised.

 

I think that what you want is the "revision date" that is the closest to the date you allegedly defaulted.  If you look very carefully at Dell's website, you might be able to find the right agreement.

 

You also might be able to find it using the internet archive:  http://archive.org/index.php

 

Good luck.

[CountryLady]

I told you that you would be in good hands here!

You sure did!  I owe you a huge thank you!.  Whenever I see Shirlie over here, I owe her one as well.  I haven't seen the gentleman she wanted me to speak to yet, but I'm watching.  THANK YOU a million times over!