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Another JDB, District Court, WA


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JDB

CFH Investments

Carlson McMahon & Sealby

Washington State

 

Served 2 weeks ago and need to file by this Friday.

Last time I filed an answer and the JDB Portfolio Recovery came back with a MSJ.

 

This time another JDB.  I will file the answer and deny everything.  Can I file discovery at District Court?  Or should I?  Do I need to file at the same time when I file my answer?

 

Thanks!

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You must deny all the allegations in plaintiffs complaint, if not denied they are taken as true and you get the Motion for Summary Judgment.

 

Just admit your name and address and deny the rest.

 

You can also answer like this

Response: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth at paragraph 1 of Plaintiffs petition and therefore denies the same.

or

Paragraph 2 of the Complaint Defendant admits or denies his name is john smith.

 

http://www.creditinfocenter.com/legal/affirmative-defenses.shtml affirmative defenses

 

 

IN THE IN DISTRICT COURT OF YOUR COUNTY

 

CFH

Plaintiff

 

Vs.

 

john doe

Defendant

 

Civil Case # 12345

 

DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINT

Now comes the defendant john doe for answer to the complaint and states as follows:

 

I. Plaintiff is a legal entity having paid all licenses and fees if required by law and is authorized to bring this action.

Response: Paragraph 1 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 1 of the Complaint and leaves plaintiff to its proofs.

 

2.Paragraph 2 of the Complaint Defendant admits his name is john smith.

 

3. Paragraph 3 of the Complaint Defendant denies CFH Investments is the legal owner of the debt and leaves plaintiff to its proofs.

 

4.Paragraph 4 of the Complaint Defendant denies CFH Investments has been damaged In the sum of $2,876 and leaves plaintiff to its proofs.

 

Defendant is without information or knowledge sufficient to form a belief as to the truth
of the allegations contained in ¶ 5, ¶ 6, ¶ 7, ¶ 8,and leaves plaintiff to its proofs.

 

As to all remaining allegations of fact in the numbered ¶ 1 through ¶ 8 of the complaint
not specifically admitted, Defendant denies all such allegations. As to all remaining
allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or
information to respond to such legal conclusions and, therefore, denies them.

 

AFFIRMATIVE DEFENSES ( list any that you may have)

 

FIRST AFFIRMATIVE DEFENSE

 

1.Defendant reserves the right to plead additional defenses or cross-claims or counter claims that may be identified during the Defendant's investigation and/or course of discovery.

 

SECOND AFFIRMATIVE DEFENSE

 

2.

 

THIRD AFFIRMATIVE DEFENSE

 

3.

 

 

Respectfully Submitted,

 

WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for the relief of $,$2,876, deny Plaintiffs’ request for interest, deny Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

 

 CERTIFICATE OF SERVICE

On October 16, 2013, I caused the foregoing instrument to be served by mailing a copy to all counsel of record in this case as indicated below: Attorneys name and address here
By Certified U.S. Mail, Return Receipt Requested By U.S. Mail.

My Name

my address

my phone

Email

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Hi I am sorry if I am posting my problem thru this thread.  I am new in the Forum and I cant find where I can post my questions. I am from Washington State and I am being  sued by Midland Funding.  A summon was sent to me on July 5, 2013.  I sent my Certficate of Service on July 30.  From then on they called me atleast 3 days a week but I never answer the phone.  I requested for the Credit Card Agreement and Proof that they now own the debt and they sent me the aggreement together with an Affidavit from a certain Financial Officer saying that Midland bought the debt from them   Now a hearing is set on Oct 31, 2013 requested by Midland Funding for Motion of Summary of Judgement against me.   The original debt is Walmart or Discover and now its under Midland Funding under Daniel N Gordon.  I am hardly making it coz I am just working partime now.  My husband is sick and I am the only one who can work now they want me to pay 6 grand.  I dont know what to do.  In my answer in the Summon I told in there that I dont know Midland though I said I owe Walmart.  Do I need to answer the Motion for Summary of Judgement and mail it to the CourtHouse ?  Or I just need to go to the hearing?  Can anyone help me how can I asnwer them.

 

I draft an answer that I will be raeding in the hearing that I am requesting for the person who sign the affidavit of transfer of debt to Midland to testify under oath to prove the authenticity of the affidavit what else I can use as a defence?

 

Thank you very much.  And God Bless you all.   

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jewell your only hope might be to elect arbitration. you don't have much time.

 

http://files.consumerfinance.gov/a/assets/credit-card-agreements/txt/creditcardagreement_7275.txt link to credit agreement you should print this out and make a couple copies.

 

Midland Funding has filed a Motion of Summary of Judgment against you if the motion is granted they win.

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ strategy and steps of arbitration - read this

 

 

1. 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 Wal-Mart Stores, Inc. if it relates to your account, except as noted below.
 

 

RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration

1. 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 Wal-Mart Stores, Inc. if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

3. 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.

• No Class Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

• How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

• Governing Law for Arbitration

This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

• How to reject this section

You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to GE Capital Retail Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section.

SECTION IV: OTHER IMPORTANT INFORMATION
WALMART® DISCOVER® CARD ACCOUNT AGREEMENT

This section of the agreement includes state notices, billing rights summary and rewards terms (if applicable) and is not required to be provided as part of the credit card agreement posted online or provided to the CFPB.

FR833282333_WALMART DISCOVER CARD
T&C DC TXT
9/12

 

IN THE IN DISTRICT COURT OF YOUR COUNTY

Midland Funding

Plaintiff

Vs.

jane doe

Defendant

Civil Case # 12345

___________________________________/

 

 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2013, Plaintiff Midland funding filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on 10/16/ 2013, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to Compel Binding Private Arbitration based on the terms and conditions of the Walmart / Discover Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Walmart / Discover Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

( b ) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

( c ) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

5. 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".

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, 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 purpose" of the FAA is to "ensur[e] that private arbitration agreements are enforced according to their terms." Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements "valid, irrevocable, and enforceable" as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims "in accordance with the terms of the agreement"; and §4 requires courts to compel arbitration "in accordance with the terms of the agreement" upon the motion of either party to the agreement. "

7. The Defendant elects arbitration with jams to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with jams pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

 

VERIFICATION BY DEFENDANT

The undersigned, who states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of her knowledge and belief.

 

CERTIFICATE OF SERVICE

I CERTIFY that I mailed a copy of this MOTION to: plaintiffs attorney name and address

My election of private contractual arbitration via JAMS / Request for Fees for arbitration was sent on 10/16/2013 by certified mail return receipt requested.

My name here

My address

My Phone
 

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@JewellaMarie,  I sent you a private message about my experience with Daniel Gordon and how to start your own thread.

 

 

Just a little story about how Midland doesn't like arbitration.  I was contacted by Suttel & Hammer in March saying they intended to sue for Midland if I didn't pay.  I sent a Debt Validation letter electing arbitration.  Never heard another peep from them or Midland on this account and it is now past the statute of limitations.

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@JewellaMarie,  I sent you a private message about my experience with Daniel Gordon and how to start your own thread.

 

 

Just a little story about how Midland doesn't like arbitration.  I was contacted by Suttel & Hammer in March saying they intended to sue for Midland if I didn't pay.  I sent a Debt Validation letter electing arbitration.  Never heard another peep from them or Midland on this account and it is now past the statute of limitations.

Hi PE,

 

 

Can you kindly give me a sample of that Debt Validation Letter electing Arbitration?  How will I do it?  I just want to know so I can file or do it before the hearing on the 31st.  Should I just write DNG or Midland and tell them that I would like to push thru Arbitration? Thanks alot.

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  • 3 months later...

Who was the original creditor?  Was it a credit card like Discover, Capital 1, etc.?

 

When do they claim you stopped paying? 

The original creditor is Chase.  It was a credit card debt.  The charge off date was 2010-5-31.

I called them couple time after sent them the answer.  But they never answer.  Now they come back with the MSJ.

For WA, the SOL is 3 years for credit card debt, right?  How should I answer this one?

 

Thanks!

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Oral and open ended accounts is 3 years. Contracts and promissory is 6 years. What is the cause of action?

If they have filed an MSJ you need to write an opposition to it.

Cause of action?  Meaning?

 

They are trying pushing this case as a contract account which it is not.  There is no signed contract attached in the exhibits.  Anyone can help to find case law regarding this issue?

I will post my MSJ document from them asap.  My court date is end of Feb.

I had an MSJ lost because I didn't denied I owed the debt in my opposition of MSJ.

I will definitely need more help on this one.

 

Thanks!

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