abrennan007

Summons from Portfolio Recovery Associates

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There are a multitude of oppositions posted on this site you may be able to redact to fit your needs, if you do indeed have until tomorrow to file it, I would at least try, it can't hurt.

If you call them and try to settle, I would say they will know they have you over a barrel, and wouldn't take less than 50 to 80% of the debt.

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abrennan007, I just bumped a thread from another Kansas poster, talks about an opposition to summary judgment. No sample there, but maybe some of the content can help you out, or the author will come back and point you in the right direction.

 

Below is a link to the member search page for the CIC, you can click "More Search Options" on the right hand side and filter results for other Kansas members, then do a content search of their threads. Maybe you'll find something helpful.

 

http://www.creditinfocenter.com/community/index.php?app=members&module=list

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Sort of, but this is for Nevada, you are in Kansas, search out some summary judgements here, if you can't find any from Kansas, look at other states, and find either federal case law or similar case law for Kansas. You can find case law by searching google scholar, pick your state, then summary judgements. I'll look around

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I would make an affidavit in opposition to Plaintiffs summary judgment.

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IN THE DISTRICT COURT OF MY COUNTY KANSAS

 

PORTFOLIO RECOVERY
Plaintiff,

Vs.

abrennan007
Defendant.
Case No:
Division:

K.S.A. Chapter 61

 

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY PROCEEDINGS AND COMPEL COMPLIANCE WITH AGREEMENT TO ARBITRATE AND ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.

 

COMES NOW Defendant abrennan007 appearing Pro Se for Defendant's Motion To Dismiss Or, In the Alternative To Stay Proceedings And Compel Compliance With Agreement To Arbitrate And Order Denying As Moot Plaintiff's Motion For Summary Judgment with and as grounds thereto states the following:

 

1. That on or about July 12, 2013, Plaintiff filed its Complaint against Defendant.

 

2. Defendant moves this court to compel binding Private Contractual Arbitration with Jams based on the terms and conditions of the GE Capital Retail Bank Credit Card Agreement

(see Exhibit A, attached).

 

3. The parties are bound by the GE Capital Bank Credit Card Agreement. The Arbitration Agreement states among other things:

 

(a) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club, if it relates to your account,

 

( b ) DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION.

( c ) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE

(d) Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). 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.

(e) THIS GE CAPITAL RETAIL BANK ARBITRATION AGREEMENT IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT (FAA). ARBITRATION MUST PROCEED ONLY WITH THE AMERICAN ARBITRATION (AAA) OR JAMS. THE RULES FOR THE ARBITRATION WILL BE THOSE IN THIS ARBITRATION AGREEMENT AND THE PROCEDURES OF THE CHOSEN ARBITRATION ORGANIZATION.

 

 

4. 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.

 

5. 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. "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 purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

 

6. The Defendant elects arbitration with Jams to settle this dispute.

(see Exhibit B, attached).

 

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with GE CAPITAL RETAIL BANK / PORTFOLIO RECOVERY pursuant to the GE CAPITAL RETAIL BANK Cardmember Agreement and to dismiss Plaintiff's complaint and deny Plaintiff's summary Judgment  or in the alternative, to stay proceedings pending private contractual arbitration with JAMS.

 

Respectfully submitted,
abrennan007
Defendant, pro'se

 

Certificate of Service

On October 31, 2013, I abrennan007 caused the foregoing instrument to be served by delivering a true and correct copy to all counsel of record in this case as indicated below:

MARIAN M. BURNS
04850 BURNS, BURNS, WALSH & WALSH, P.A.
P.O. BOX 487
LYNDON, KS 66451
785-828-4418 FAX: 785-828-3269
bbww@bbwwlaw.com
ATTORNEYS FOR PLAINTIFF

By Certified U.S. Mail, Return Receipt Requested
abrennan007
my address
my phone number
my email

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68.3 KB .pdf credit agreement This will be your Exhibit A

Send a meet and confer letter to the attorney.

You will need to send 2 copies of the credit agreement to the attorney.

You will need to send 2 copies of your election of arbitration with jams to the attorney.

You will need to send 2 copies of your motion to the attorney.

Send certified mail return receipt requested jam it all in a large legal envelope.

At trial you will need copies for everyone at court that is yourself, plaintiff ,judge, court clerk.

 

 

Your letter to attorney should say

Todays date

I elect private contractual arbitration via JAMS to resolve any disputes between us pursuant to the credit agreement.

Respectfully submitted,

abrennan007
Defendant

case #

This will be your Exhibit B

 

Good Luck

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If you need more time

 

IN THE DISTRICT COURT OF SEDGWICK COUNTY, KANSAS

PORTFOLIO RECOVERY ASSOCIATES, LLC

Plaintiff

vs.

abrennan007

Defendant,

(Pursuant to K.S.A. Chapter 61)

Case No. 13LM*****

 

MOTION FOR EXTENSION OF TIME

COMES NOW, the Defendant abrennan007 on the case in proper for the limited purpose of requesting an extension of time until November 18, 2013, to file a response to Plaintiffs motion for summary judgment.

 

Defendant requests an extension of time until November 18, 2013 to answer plaintiff's summary judgment motion.

 

WHEREFORE, the defendant, abrennan007 prays that its motion be sustained and that it be allowed an extension of time until November 18, 2013, to file to answer to plaintiff's summary judgment motion.

SUBMITTED BY:

abrennan007

BY:

abrennan007

My address

my phone

my email

Defendant

 

CERTIFICATE OF SERVICE

I, abrennan007 , hereby certify that I caused a true and correct copy of the above and foregoing Motion to be mailed on the 31st day of October, 2013, addressed as follows, to-witt:

MARIAN M. BURNS - 04850

P. O. BOX 487

LYNDON, KS 66451

785-828-4418 FAX: 785-828-3269

bbww@bbwwlaw.com

ATTORNEYS FOR PLAINTIFF

 

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Yes racecar I did, I sent one to the court and one to the plaintiff. Will I get something back from the court giving me a new date or is that something I'm going to have to check up on?

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Well I have some sad news to report. I went to my pre-trial today only to be told there was a judgement against me on Nov. 6 at a hearing that I missed. The clerk said they hadn't filed the judgement yet but that the case was closed and I should try to get in touch with the plaintiff. I told her I had filed an opposition to the summary motion judgement but she said there was nothing she could do because the case was closed. I didn't show up at the hearing that had been scheduled because I never received any notification from the plaintiff or court. So now I'm F*CKED. I would like to thank everyone for their help and support as I went through this crap.

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@abrennan007

 

You should have received notification of a hearing.  See what your rules say about notification, and see if there's anything in your file that indicates you were supposedly notified.

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http://kansasstatutes.lesterama.org/Chapter_61/Article_33/#61-3302

 

61-3301: Default judgment. (a) The court may enter a default judgment in the following situations:

      (1)   If a defendant fails to either appear or file a written answer on or before the time specified in the summons, judgment may be entered against the defendant upon proof of service and at such time as the plaintiff requests same, without further notice to the defendant.

      (2)   If a defendant fails to appear at the time set for a pretrial or trial hereunder, judgment may be entered against the defendant at the request of the plaintiff without further notice to the defendant.

      (3)   If the defendant has filed a counterclaim against the plaintiff and the plaintiff fails to appear at the time set for a pretrial or trial hereunder, judgment may be entered against the plaintiff at the request of the defendant without further notice to the plaintiff.

      ( b ) A default judgment shall not be different in kind from or exceed the amount of the relief sought in the demand for judgment.

      ( c )   If a defendant seeks to set aside a default judgment for failure to appear at the time specified in the summons, the defendant shall file a motion not more than 10 days from the date of such judgment in a lawsuit where the defendant was personally served with summons within the state, or not more than 45 days where service of summons was by other than personal service within the state. If any party seeks to set aside any other default judgment, that party shall file a motion not more than 10 days from the date of such judgment. Any motion to set aside a default judgment, except for the time limits set forth above, shall be in accordance with the applicable provisions of subsection ( b )of K.S.A. 60-260, and amendments thereto.

      (d)   In cases where no service is had, for good cause shown, the court may set aside a default judgment pursuant to the applicable provisions of subsection ( b ) of K.S.A. 60-260, and amendments thereto.

      History:   L. 2000, ch. 161, § 33; Jan. 1, 2001.

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Its not over yet back to work.

 

IN THE DISTRICT COURT OF SEDGWICK COUNTY, KANSAS

PORTFOLIO RECOVERY ASSOCIATES, LLC

Plaintiff

vs.

abrennan007

Defendant,

(Pursuant to K.S.A. Chapter 61)

________________________________/

DEFENDANT'S MOTION TO SET ASIDE DEFAULT JUDGMENT and REQUEST FOR HEARING

COMES NOW, the Defendant abrennan007 on the case in proper for the purpose of requesting Motion To Set Aside Default Judgment and Request For Hearing

I, the Defendant abrennan007 request that the Court enter an order to set aside the Default Judgment entered against me and that I be given the opportunity to present my defense.

The Court should do this because I became aware of this Default Judgment on 11/12/2013.

I found out about this in the following manner by viewing the courts website defendant saw judgment was entered against him.

I did not answer or appear at the hearing because I was not served any notice about the hearing.

If I am given an opportunity, these are the defenses and arguments that I would like to tell the court about.

Defendant has a valid Agreement with GE MONEY BANK To Arbitrate this claim.

Agreement with GE MONEY BANK To Arbitrate (see exibit A attached)

The Defendant elects arbitration with Jams to settle this dispute.

(see Exhibit B, attached)

 

This motion is supported by the attached affidavit of defendant. (see Exhibit C,attached)

 

WHEREFORE, Defendant moves this Honorable Court to To Set Aside Default Judgment and grant the Request For Hearing and And Compel Compliance With Agreement To Arbitrate.

Respectfully submitted,
abrennan007
Defendant, pro'se

 

Certificate of Service

On November 13, 2013, I abrennan007 caused the foregoing instrument to be served by delivering a true and correct copy to all counsel of record in this case as indicated below:

MARIAN M. BURNS
04850 BURNS, BURNS, WALSH & WALSH, P.A.
P.O. BOX 487
LYNDON, KS 66451
785-828-4418 FAX: 785-828-3269
bbww@bbwwlaw.com
ATTORNEYS FOR PLAINTIFF

By Certified U.S. Mail, Return Receipt Requested
abrennan007
my address
my phone number
my email

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I would keep your affidavit short and sweet so the judge might read it.

 

exhibit C

 

Affidavit of Defendant.

 

I 007 am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge.

This record of events was made at or near the time of the act or reasonably soon thereafter.

The relevant information concerning this motion includes the following:

1. I found out about this in the following manner by viewing the courts website defendant saw judgment was entered against defendant.

2. I did not answer and appear at the hearing because I was not served any notice about the hearing.

3. If I am given an opportunity, these are the defenses and arguments that I would like to tell the court about.

(a) Defendant has a valid Agreement with GE MONEY BANK To Arbitrate this claim.

( b ) The Defendant elects arbitration with Jams to settle this dispute between the parties.

I declare and affirm under penalty of perjury that the statements made herein are true and correct to the best of my knowledge, information and belief.

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Keep us posted, good luck 007

She will have a 2 1/2 to 4 hour drive to your county depending on the weather.

I don't think she will show to oppose your motion.

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Well racecar you were right, she didn't show up, in fact NO BODY did. Some scum bag attorney who "occasionally" represents them decided to stand up and announce he would represent Portfolio Recovery. He then frantically called them to see what the case was about and had them fax over their response to my motion. We then went into a court room where I was allowed to present my defense to a judge. He told me that it looked like to him I received a default judgement and now was asking for arbitration. I explained to him that that was my defense before I even realized I had a default judgement. But he seemed like he didn't believe me or he didn't care. He asked why the court should allow my motion and I told him because I was not aware of the default judgement. He then asked me if I received the request for summary judgement and I said yes, he then asked me why I didn't show up for the hearing on the 6th. I told him because I was not aware of the hearing. He then said that I am expected to know the rules of the court the same as any other attorney and that is why people hire attorneys. He then denied my motion and left the court room. The scum bag attorney who stuck his nose into something he knew nothing about picked up his stuff and left the court room with a smirk on his face. And so, that is the sad end to my pathetic story.

Denied Motion_Redacted.pdf

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