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SOL expired per the Agreement JDB insists upon -- time to MTD?

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JDB, in an attempt to get out of JAMS, presented a 2007 agreement that does not name JAMS specifically.

 

JDB has had multiple opportunities to concede to Jams, but keeps taking it up a notch in order to get the judge to side with them.  The latest is JDB references the OC's affidavit (which JDB has forgotten they have never filed with the court).

 

So JDB wants to avow that 2007 is the correct Agreement.  

 

However, credit cards update their agreement annually:  This means that any versions beyond 2007 would not apply (and that account activity would have necessarily ended in 2007 to make JDB's agreement true and correct)

 

This *also* means the JDB has provided evidence that would place them past the SOL.

 

We have an additional hearing scheduled on this issue.  Given that JDB has made an extraordinarily Big Deal out of their insistence --- I'm ready to argue, with my own evidence, that their evidence has placed them past the SOL and MTD with Prejudice. 

 

Thoughts?

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JDB, in an attempt to get out of JAMS, presented a 2007 agreement that does not name JAMS specifically.

 

JDB has had multiple opportunities to concede to Jams, but keeps taking it up a notch in order to get the judge to side with them.  The latest is JDB references the OC's affidavit (which JDB has forgotten they have never filed with the court).

 

So JDB wants to avow that 2007 is the correct Agreement.  

 

However, credit cards update their agreement annually:  This means that any versions beyond 2007 would not apply (and that account activity would have necessarily ended in 2007 to make JDB's agreement true and correct)

 

This *also* means the JDB has provided evidence that would place them past the SOL.

 

We have an additional hearing scheduled on this issue.  Given that JDB has made an extraordinarily Big Deal out of their insistence --- I'm ready to argue, with my own evidence, that their evidence has placed them past the SOL and MTD with Prejudice. 

 

Thoughts?

You are in court I assume?

 

If this is correct you have not passed SOL because once in court the SOL count is tolled.

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Ok...you're confusing me (which is not difficult to do).  What exactly are you claiming that indicates the account would be outside the SOL?

 

Has proof of a last payment been provided?

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We are in court.  

 

The case did not commence until 2012.

 

SOL on credit cards here is 4 years, so anything complaints citing a date before 2008 would have been out of SOL.

 

 

Any presentation of a credit card agreement has absolutely no bearing on the actual

passing of SOL.

 

Any agreement presented would be for the OC/JDB benefit of an arbitration forum

for their benefit and nothing else.

 

You should have your own bank records showing the date of last payment or even

check into what the CRAs have to say... although that is not evidence accepted by a court.

 

If you had thought it was time barred then SOL should have been brought up as an affirmative defense.

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Sorry, BV80  :)   

 

 

 

No proof of last payment has been provided.  JDB attached nothing to complaint.   Nor did they mention payment dates in their complaint.

 

At the action's outset, I motioned for arbitration with Jams using an agreement I found online.

 

JDB did not have an alternate agreement handy to oppose my motion, and I won.

 

 

 

Now, late in the game, they are bringing an outdated, Bogus agreement solely for the purposes of getting out of Jams --- shooting themselves in the foot (I'm not sure they've done the math.). 

 

To support their Bogus 2007 Agreement, JDB is also citing an OC affidavit which they (incorrectly) think has already been filed with the court  --- however, the court has never seen the affidavit, and I will object to it if JDB tries to present it at the hearing.

 

 

 

Being that civil court is a Preponderance of Evidence standard, my strategy is to show that the OC produces Agreement updates annually.  Example.... 2004, 2005, 2006, 2007.  

 

Then I plan to argue that if Plaintiff believes that 2007 is the true and correct Agreement, then it must also true that 2007 would have been the time when activity ceased on that account.   (If activity had continued into 2008, then a 2008 Agreement would have been true and correct, and so on.)

 

 

Then MTD based on the statute/code.   ....basically embracing their lie and using it against them.

 

 

 

 

 

 

 

 

 

Hopefully, that was a little less confusing?    Sorry!

 

 

Thoughts now?  :)

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You should have your own bank records showing the date of last payment or even

check into what the CRAs have to say... although that is not evidence accepted by a court.

 

If you had thought it was time barred then SOL should have been brought up as an affirmative defense.

 

 Just received this, DonqIII, sorry   :-)

 

The agreement I submitted was for 2009.  However, the JDB has even been fighting me on this issue: why is Defendant is hung up on the 2009 date?.....Touche', JDB:   I never should have asserted 2009.  My error.  

 

So, instead of promoting my 2009 date, I have turned my focus to their 2007 date.

 

These guys are going to A LOT of work in order to avoid Jams.

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I see what you mean now.  :-)

 

A cardmember agreement is not updated if there are no amendments or changes to any of the terms in the agreement.  It's possible you might need to show that the 2007 agreement was amended and updated in 2008 just to support your claim that the 2007 agreement could not have applied to an account that would have gone into default in 2008.

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SOL on credit cards here is 4 years, so anything complaints citing a date before 2008 would have been out of SOL.

 

Well, we here like to say the SOL is 4yrs, but the other side will say 6 years.  There is no appellate court decision for either position.

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  It's possible you might need to show that the 2007 agreement was amended and updated in 2008 just to support your claim that the 2007 agreement could not have applied to an account that would have gone into default in 2008.

 

BV80, I believe I may have just the thing!  At least I hope I do:  It's a 2008 amendment to part of the agreement ---- which, based on their "Entire Agreement" Clause, the 2007 Agreement would have been updated in 2008.  

 

My biggest setback at this moment is that the OC keeps an ironclad grip on their agreement versions.  The only ones I can find are the ones posted by individuals  :/

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Well, we here like to say the SOL is 4yrs, but the other side will say 6 years.  There is no appellate court decision for either position.

 

Yes, I'm well aware of this quandary, debtzapper.   I'm hoping I have found the correct Statutes to argue otherwise.   :/

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