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titans1987

Ways to delay lawsuit

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Greetings - I have received a response to my DV request and the firm has given me two weeks to call them to set up payment.  Now - after reading through various topics, the response was junk and if necessary I could challenge the chain of custody because what they sent in (to me at least) offers no proof that the JDB actually bought the account nor includes how the amount they bought was derived at (just a couple old statements and a notorized affidavit from a JDB employee who confirmed their information).

 

What would be ideal for me though is to send them back looking for additional information.  The SOL will be up in 86 days so I want to just stall, stall, stall any further action by them before they file suit. 

 

So my question is, what is the best way to accomplish this?  Depending on what/who you read the response I should send them should either be very vauge - just say the matter is still in dispute. 

 

Or others suggest that I point out specifically what I have issue with and request that they send me the relevant information.

 

I don't know which response to send.  I'm inclined to ask them to send me the Bill of Sale from the OC and an itemized list of transactions which ends with the alleged amount that the JDB bought from the OC.  Not sure what to do right now but want to be sure to get a response sent to them so they do not think I have just rolled over on the matter.

 

Suggestions on what to do?  Short denial?  Detailed?  Pluses and minuses of each?

 

Thanks in advance!

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This is going to be a close race. A dispute usually gets you a 30 day reprieve and you might be able to do that once or twice. Asking for additional information doesn't really gain anything or help your case at this point. If there is identity theft involved a copy of a police report might be helpful in the delay or try to claim dispute still exists and no valid proof of debt has been supplied.  This is kind of like sitting on a hand grenade hoping it's a dud. 

 

If you send a DV -  I would keep it simple as possible in one line. You might get another 30 - 45 days????

 

 

Dear JDB,

 

"I dispute this claim. No valid proof of debt has been supplied".

 

Signature Block etc

Sent CMRRR

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A bill of sale, etc. is not required for validation.  You can request those things, but they don't have to respond.  Also, if you are sued, such requests at this time might give them a heads up as to what you'd request in discovery.  Or, if this particular law firm is lazy, a request for more documentation might convince them to leave you alone.  There's just no way of knowing. 

 

In any case, they're not required to provide you with that information at this time.

 

There's no set way to delay a possible lawsuit.  Whether or not you're sued depends on the JDB, the law firm, and how vigorously they want to pursue an account.  Whatever you decide to do, I'd suggest that you also start studying your court's rules of civil procedure.  It never hurts to be prepared just in case.

 

Also, here are 2 JDB cases from the TN Court of Appeals.  The court ruled for a JDB in one case and against a JDB in the other case.  Study the rulings in order to try to ascertain the differences in the cases and why the court ruled as it did in each case.

 

http://scholar.google.com/scholar_case?case=16828161617734240995&q=%22LVNV+FUNDING,+LLC+v.+MASTAW%22&hl=en&as_sdt=4,43


http://scholar.google.com/scholar_case?case=12253552214496120530&q=%22PHOENIX+CREDIT+v.+Akers%22&hl=en&as_sdt=4,43

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A DV does not necessarily require that they send you detailed documents. You can ask for additional proof but that doesn't stop them from filing suit.

 

You can HOPE it occupies them so that they let the SOL slip by, but you have to assume and prepare for the fact that they may and probably will file suit. Of course, the size of the debt will factor into it.$300 or $400 they probably won't file, but if it is $4000...well....

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http://www.creditinfocenter.com/community/topic/321405-new-sticky-request-regarding-dv-process-and-lawsuits/#entry1261911

 

I am not aware of anything in a DV letter process that can prevent/delay a lawsuit by a party that is planning to bring a lawsuit for an alleged debt.

 

It is likely that the JDB DC attorney either already has the filing of a suit scheduled on their calendar or they are not planning on filing. I would monitor the court docket online (if available). Persistence with a targeted DV letter and followup may have a slim chance of discouraging the weakest players that are already reluctant to file suit.

 

If I had reason to believe that I could milk some free discovery (possible statutory violations are a bonus for me) out of them prior to them filing a suit against me I would make a second request specific to what they had provided me.

 

Studying the opinion and memo decision links posted as well as others will make a party more confident that they have some hope in prevailing if they are in fact sued. Of course, upon filing of a suit the applicable Civil Rules of Procedure will need to become a best friend that the defendant listens to intently.

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What I did in one pending case was to send a DV letter with a paragraph stating that " If this alleged debt is governed by an arbitration clause in the card member agreement then I elect to arbitrate our dispute via binding private contractual arbitration."

 

Never heard from them again.

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Thanks for the feedback peoples! 

 

Also - in case I wasn't clear - I was not trying to throw something at them which would legally prevent them from being able to file.  I'm more looking for anything that could possibly give them pause in doing so, just anything that might make them slow down a little bit - which could potentially allow the SOL to expire.

 

Savior - I had thought about saying something about arbitration - does that amount to acknowledging the debt?  I am pretty sure that arbitration is not available to me as the last payment on the account were in late 2010 which seems to be when a lot of companies removed those clauses.  So if there is no arbitration agreement and I say I want to use that, I was worried of a double whammy of:  admitting to the debt and not getting arbitration!

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As far as admitting the debt by referring to it as an alleged debt in a DV letter (and especially if continuing to dispute the alleged debt) I would not believe there should be an issue that could be used against me.

 

What I did in one pending case was to send a DV letter with a paragraph stating that " If this alleged debt is governed by an arbitration clause in the card member agreement then I elect to arbitrate our dispute via binding private contractual arbitration."

 

Never heard from them again.

If the alleged debt amount is low enough it might be a good option. I like to hold my cards close and depending on controlling case law regarding the timing and successful granting thereof, consider filing an MTC Arbitration. Arbitration has as many moving parts as court IMHO. Any review of options including arbitration should be closely scrutinized IMO.

 

A bad case in court is not likely to improve just because it is moved to arbitration. Now, if the amount of debt alleged is small enough and/or arb costs (like JAMS, if an available arb forum) are high enough then the return on investment for a JDB in arbitration is often not worth pursuing and once they are denied access to the courts they will not pay all the fees required to prosecute their claim in arbitration.

 

From my experience if I have a solid looking case in court I have a more realistic chance of reversing an adverse decision against me than I have in arbitration. In court I am always creating a record for the next higher court to agree with me should it become necessary to have them review for errors and/or abuse of discretion.

 

From my experience: In Arbitration No One Can Hear You ScreamTM

 

Of course with no agreement specifying arbitration the arbitration issue is likely moot. Then again some previous arbitration clauses may have had survivability which included surviving BK of either party and presumably thermonuclear incidents. :eek:

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If the alleged debt amount is low enough it might be a good option. I like to hold my cards close and depending on controlling case law regarding the timing and successful granting thereof, consider filing an MTC Arbitration. Arbitration has as many moving parts as court IMHO. Any review of options including arbitration should be closely scrutinized IMO.

 

A bad case in court is not likely to improve just because it is moved to arbitration. Now, if the amount of debt alleged is small enough and/or arb costs (like JAMS, if an available arb forum) are high enough then the return on investment for a JDB in arbitration is often not worth pursuing and once they are denied access to the courts they will not pay all the fees required to prosecute their claim in arbitration.

 

From my experience if I have a solid looking case in court I have a more realistic chance of reversing an adverse decision against me than I have in arbitration. In court I am always creating a record for the next higher court to agree with me should it become necessary to have them review for errors and/or abuse of discretion.

 

From my experience: In Arbitration No One Can Hear You ScreamTM

 

Of course with no agreement specifying arbitration the arbitration issue is likely moot. Then again some previous arbitration clauses may have had survivability which included surviving BK of either party and presumably thermonuclear incidents. :eek:

 

Of course your options should be fully scrutinized before setting on a course of action and your case is only as good as it is whether in court or in arbitration.

The OP asked for a delaying tactic and I have used election as such.

However, I believe that if a plaintiff is dead set on filing suit, election of arbitration is not going to dissuade him.

Electing early on gives the defendant the option for counterclaim of breach of contract and the exploration of choice of law defenses in arbitration.

Ideally, defendant will be able to obtain the most beneficial card member agreement.

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Of course your options should be fully scrutinized before setting on a course of action and your case is only as good as it is whether in court or in arbitration.

The OP asked for a delaying tactic and I have used election as such.

However, I believe that if a plaintiff is dead set on filing suit, election of arbitration is not going to dissuade him.

Electing early on gives the defendant the option for counterclaim of breach of contract and the exploration of choice of law defenses in arbitration.

Ideally, defendant will be able to obtain the most beneficial card member agreement.

If you are paying attention you can probably beat your opponent with either your forehand or your backhand. Like the song says, "Should I lit or should I arb?" Wait, those might not be the exact lyrics. ;-)

 

Make a plan. Execute the plan. Adapt and improvise as necessary. If you have a plan B and C and your opponent has only one plan then I believe you are better prepared for whatever comes along.

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Who was the OC?

 

When was the alleged account opened?

 

What year was the supposed default?

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Well - I am about 99% confident that if I do not roll over I am going to be served (based on an almost similar situation with the exact same players being mentioned in a different thread).  So, while I will still be sending them a response - will there be any harm done to a future defense by me if I state explicitly that:

 

what they sent was not sufficient to determine ownership of the account in question.  I demand an initial agreement between myself and the OC as well as a list of all transactions from inception of the account through the day the account in question was sold to the JDB to ascertain the amount is true.

 

I realize that they will blow that off and ignore it - but maybe, just maybe it would put them on notice of what I will be requesting during discovery and that I am would be defending myself and could hold off on a suit (or possibly this could backfire and give them a heads up to acquire that info?)

 

Or would the best course still be to just send a simple denial for lack of proof?  If I state in the letter anything about wanting to elect an arbitration clause, if one did exist would I be bound by that request at that time? 

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Who is the original creditor?

You may be able to use arbitration as a tool for delay if the agreement has survivability clause.

With out any information its hard to help you.

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Well - I am about 99% confident that if I do not roll over I am going to be served (based on an almost similar situation with the exact same players being mentioned in a different thread).  So, while I will still be sending them a response - will there be any harm done to a future defense by me if I state explicitly that:

...

I realize that they will blow that off and ignore it - but maybe, just maybe it would put them on notice of what I will be requesting during discovery and that I am would be defending myself and could hold off on a suit (or possibly this could backfire and give them a heads up to acquire that info?)

...

Or would the best course still be to just send a simple denial for lack of proof?  If I state in the letter anything about wanting to elect an arbitration clause, if one did exist would I be bound by that request at that time? 

If I was 99% sure I would be served (unless I paid something) *I* would put a JDB on notice that I do not believe I owe them a dime and...

They have provided me no proof of such.

They should be sure to file soon because the SOL is about to run out.

If they file suit after the SOL runs out I will need to engage counsel to pursue all their statutory violations.

 

That is me. I don't like bluffing so I would either want the experience of beating JDBs/OCs in lawsuits or be willing to learn and do whatever it takes to prevail against them.

 

I doubt anything less than such a strong approach is going to dissuade any but the most reluctant-to-sue JDB from filing. Filing a suit is just the cost of doing business in their world. Defending meritless, evidence-free suits seems to be my world.

 

If a JDB doesn't want to pursue a very aggressive party the above should put them on notice and they will pick on someone else. If they sue after that type of correspondence they were 100% planning to sue so I fail to see any harm in taking such an aggressive stance. I don't believe such an aggressive stance fits with an election of arbitration notice. I do not recommend bluffing as I don't know how to do it well. If a party does bluff well they would probably be better served sitting at a poker table and taking their winnings and settling with the JDBs for a small percentage. IMHO

 

I doubt the possibility/threat of discovery from a pro se would cause any delay in opposing filing a lawsuit. They may file an MSJ prior to discovery anyway. The upside is they probably don't do much discovery so it will likely be from templates. I've had OC's serve me discovery as well as avoid it like the plague. YMMV

 

If going aggressive I would thoroughly review any surviving or applicable arb agreement and trot it out via MTC arb, if it made sense, post suit. I'd review the same, if I somehow was persuaded that a DV electing arbitration was my plan. Of course the Civil Rules of Procedure/Evidence, local court rules, viewing court hearings, forum posts, etc. would be of interest to me. Just because I file an arb claim (based on what? statutory violations??) doesn't mean I will not still end up in court having to enforce that arb agreement.

 

If not going in aggressive and being this close to the SOL I would likely not waste time on a DV letter unless I expected something useful in the form of informal "discovery". The cockiness of DCs can cause them to send the occasional damning information.

 

Whether I was going to send an aggressive DV letter, a "discovery" fishing DV letter, or an election of arbitration letter, all would deny the alleged debt. Different approaches trigger different plans post suit. The letter is based on a plan. I would ask myself what is my plan and draft the followup DV letter (or no letter) around that plan. I would focus on my plan first and determine the letter based on that plan. IMO

 

Knowing I need a plan first I would probably want to post non-specific details (no stuff like "I owe an alleged debt of $12,345.67") to permit those knowledgeable here to assist me in focusing on and developing a plan that works for me and my situation.

 

Oh, and I would want to understand it is just a letter IMHO. There is no reliable way to delay a lawsuit other than some sort of payment or promise to pay FAIK.

 

Of course if I am really only 50/50 on the odds that I would be served keeping my mouth shut about SOL is probably a smarter move. But at 99% that is another story.

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What I did in one pending case was to send a DV letter with a paragraph stating that " If this alleged debt is governed by an arbitration clause in the card member agreement then I elect to arbitrate our dispute via binding private contractual arbitration."

 

Never heard from them again.

 

It seems that I have read in some threads, either here or on other boards, that if you send the JDB's attorney a letter, CMRRR, in which you elect Arb and they subsequently file suit, that they can be held liable for an FDCPA violation.  Has anyone had experience with this?

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@CG in TX

 

To date, I've found no court rulings related to that issue.  As far as I know, there's no case law that supports the claim.

 

In addition, some arbitration provisions include a small claims exception that would allow for the case to be filed in the small claims division of a court.   If the filing of a complaint after a consumer has elected arbitration is a violation, if an agreement includes that exception, a JDB could file in small claims and not be in violation of anything.

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It seems that I have read in some threads, either here or on other boards, that if you send the JDB's attorney a letter, CMRRR, in which you elect Arb and they subsequently file suit, that they can be held liable for an FDCPA violation.  Has anyone had experience with this?

 

As BV80 stated ........ I don't believe that it would be an FDCPA violation ......... what you would have is a breach of contract claim in arbitration.

Most card member agreements that contain an arbitration clause state that 'if either party elects arbitration; this arbitration clause precludes either party's right to litigation in court' (or words to that effect).

This statement is right in their agreement; if the defendant elects prior to suit being filed and they still file......... 'breach of contract'. 

 

BV80 is also correct regarding small claims .......... you have to read your agreement very carefully.

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@Savoir

 

 

As BV80 stated ........ I don't believe that it would be an FDCPA violation ......... what you would have is a breach of contract claim in arbitration.

Most card member agreements that contain an arbitration clause state that 'if either party elects arbitration; this arbitration clause precludes either party's right to litigation in court' (or words to that effect).

This statement is right in their agreement; if the defendant elects prior to suit being filed and they still file......... 'breach of contract'. 

 

That might be a problem.   It might be difficult to claim that the JDB breached a contract that was already breached by the consumer's failure to pay.

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Thanks for the feedback peoples! 

 

Also - in case I wasn't clear - I was not trying to throw something at them which would legally prevent them from being able to file.  I'm more looking for anything that could possibly give them pause in doing so, just anything that might make them slow down a little bit - which could potentially allow the SOL to expire.

 

Savior - I had thought about saying something about arbitration - does that amount to acknowledging the debt?  I am pretty sure that arbitration is not available to me as the last payment on the account were in late 2010 which seems to be when a lot of companies removed those clauses.  So if there is no arbitration agreement and I say I want to use that, I was worried of a double whammy of:  admitting to the debt and not getting arbitration!

When was the alleged account opened?

 

If there was an agreement with an underlining arbitration clause that has a strong survivability clause in it that was in effect

during the time from the account being opened to the last payment, then arbitration can be argued.

 

In a DV, it can be worded to say something like ... If there is an arbitration clause in the agreement for the alleged debt

I hereby elect arbitration to settle any and all disputes.

 

That does not admit anything.

 

As to the actual arbitration end. I tried an end run to avoid a suit being filed by a JDB when I was about 3

months away from SOL on a specific account. I actually initiated in JAMS as soon as the JDB was

starting to Micky Mouse around with phone calls and a dunning....

 

The JDBs inhouse attorney could not move fast enough to get me to drop my claims with very

favorable terms for me.

 

The alleged amount for that account was a little less then $4,000.

 

Not saying this would work in every case, but I do know those JDBs just do not like arb.

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It seems arbitration may be a feasible option but I am still slightly hesitant to go that route: what if arbitration was accepted? Would I not stand a better chance of breaking their chain of custody in court vs that arena? Would the same lack of their ability to prove what they bought was accurate benefit me there as well? My head is just spinning on what to do. I'm really not wanting to go to court but it seems at least a known quantity with a lot of help available - arbitration seems more like a wild card with varying degrees of success. Arghh!

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Ok, some additional info About arbitration →the situation I have above is actual X2 → Same JPB/ Law firm on both but different oc on them. Reading the back of the statements I was sent as validation there is no mention of arbitration on either of these, both of these alleged statements and terms are supposedly from Nov 2010. Whether these are the actual agreements in effect at that time I am not able to Verify. One of these is for HSBC Bank NV and the other is GE Money. I have done a preliminary search but have been unable to locate when arbitration was removed from those oc. To answer A question above, I would say the GE account originated in 2006 and HSBC probably around 2003/2002 with last payment on these accounts both occurring in Nov 2010

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Reading through this again about if I were to request arbitration and they filed suit - it could potentially be a breach of contract.  My questions are:

 

What they sent me, statements from November 2010 do not have anything about arbitration on them.  I have no other information to determine if or when the arbitration clause when away.  With no information other than that - how would one determine if a prior clause had any survivability?

 

I think that I will probably just be sending them:  what they have provided does not provide enough information to determine the validity of their claims.  This alleged debt is still in dispute.

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Another thing I noticed today while drafting a response. The statement they mailed to me was for late Oct through late Nov. It showed a payment was made on the prior statement, and had a due date for the next regular payment. Since no further payments were made, nor charges made on the card - wouldn't it actually be the previous statement that had the latest "agreed to card terms"?

If payment or use constitutes agreement to terms, then I am assuming a statement which was not paid (nor had a purchase on it) would not be the most recent accepted terms.

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OK - so I replied to the law office essentially saying that what they sent contained multiple copies of the same page and nothing relevant and that I would like to have:

 

Information to determined PRA is rightful owners of the account(s) in question

Information to determined ownership of the accounts

Copies of the cardholder agreements in power for the accounts in questions

 

Received a reply to these today from the law offices which consisted of:

 

Bills of Sale from the OC to PRA - nothing in this, just saying that on DATE accounts were sold to PRA -> nothing to indicate that the Accounts in question were involved in such sale.

 

Also included affidavits for the sales.

 

Lastly there were cardholder agreements.  I've only had time glance at these but both of the agreements include arbitration and mention that upon request, the OC will pay for the arbitration costs - does this carry onto the JDB since they have assumed the responsibilities of the OC?

 

Trying to figure out how to play this, I burned 16 days requesting this additional information so not sure if I want to request more information - i.e. there were no account numbers mentioned on the bill of sale so how do I know the account in question was included at that time?

 

Or jump straight to stating I want arbitration and am formally requesting that the JDB foot the bill.

 

(or just ignore this and hope that they don't sue before SOL expires, but looking at my district court calendar this attorney already has several cases filed/ongoing for the JDB so I think silence will ensure action on their part)

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Hey everyone - quick question. In the information for one of the accounts which was sent to me I received the following:

  • Bill of Sale -> 3 copies of same form, each one has different signatures on it by different people at the OC
  • Affidavit of Sale of Account by Original Creditor -> signed by specialist and this states it was signed on and sworn by the notary on June 21, 2012
  • Blanket Certificate of Conformity -> this is by an attorney and states: "...that the acknowledgement or proof upon the affidavits of merit where taken by NOTARY NAME , notary public in the State of Georgia, in the manner prescribed......" and closes with "IN WITNESS WHEREFORE, I have herunto set my signature, on the 20th day of June, 2012"
Now my question -> how can this lawyer swear that everything on the Affidavit was taken by this specific notary if he created his paperwork BEFORE the other form was signed and notorized the following day? Am I not understanding this, because this seems shady and makes absolutely no sense to me.

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