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Asset Acceptance wants to dismiss case.....


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I can't find my original post, or the 2nd one a few months later...so I am starting up a new thread for a new question....

 

A very brief summary:

 

Dell is the OC.  AA is the JDC. Johnson Mark, LLC is their attorney.

 

Case was time-barred in California.  I am now in Oregon, they found me here, AFTER time-barred and filed in court.  Court sent it to court appointed arbitration. I lost, of course....I was prepared for that. And...I was PREPARED.

 

Several violations in the way arbitration was handled, to include not following Oregon mandated time limits for setting up hearing, holding hearing, and issuing award.

 

14 violations on the part of AA in the manner in which they have attempted to collect the debt (to include the judgement issued against them by Federal court in 2011 for going after time-barred accounts - $2.7 million fine and ordered to not do it again).

 

I kept demanding JAMS..wouldn't ease up on it. The Johnson Mark agreement presented in Arbitration was for another company. I had my original agreement; however, both agreements state JAMS must be used...they filed in court anyway (cheaper). The original agreement Dell supplied to me states they pay all JAMS fees to include any and all fees I have to pay.

 

They are not smart people; don't care if they are attorneys. I believe I actually now know more than they do...of course, I have been fighting for my life here.  They (Johnson Mark) was told by the Arbitrator to write up the award notice and he would sign whatever they wanted. Pfffft.  Pissed me off big time.  They did...increasing it by several thousands of dollars. It was signed and submitted by the Arbitrator almost 2 months after the hearing date. Johnson Mark typed on the award form that I had 21 days to appeal. So...I appealed it...which I was going to do anyway.

 

Appeal was approved, and my fees were waived. At the time I filed the appeal, I filed a MTC to JAMS. I also requested they reimbursement me for the fees based on the copy of the agreement I submitted to the court stating they have to pay all the fees.  This past Friday, there was a 3-way phone conversation between the clerk of the court, Johnson Mark, and myself to set up dates.  JM had apparently filed a brief several weeks ago and did not copy me.  He verified my address and said he would mail one to me.  I have been given til the 31st to respond to the brief.  We are to meet again on the 14th for the hearing.  I will be there in person, it's like 2 miles away. JM attorney will be on the phone.

 

QUESTION:  I found this. Portland State University has it posted on one of their websites. As well, I found it on several other websites.

 

7. Can an attorney appear for me?

Small claims court does not allow attorneys to appear for clients except in extremely limited circumstances where the judge authorizes the attorney to appear. 

Even though an attorney may not appear for you at the court hearing, all parties are free to seek legal advice.  An attorney may also accompany you to the mediation hearing.  If the other party consents, an attorney may be present during the mediation.

If this is true, why am I dealing with an attorney?  Is this another violation?  Does it apply to appelate court?

 

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QUESTION: At the end of the phone conversation, JM attorney asked me (while the clerk was on the phone) if it was okay to call me to speak briefly about the case. I was praying for this; said yes.

The phone call consisted of him explaining that it was costing a lot of money for this case and we both knew it wasn't worth it. I told him flat out I had nothing to lose and would continue to fight. I told him they violated even their bogus, made-up agreement and that in my JAMS demands I have listed 14 violations. I did NOT tell him I am filing with both consumer agencies and sending something, however that works...don't know yet how to do it...to the Federal Court that slammed them for the $2.7 advising them of another violation.

 

He wanted permission from me for him to contact me regarding a possible settlement. He gave me his email address for me to send and email. I have not yet done it. I want to word it right and will think on it today.  He said he wanted permission to speak with his client about dismissing without prejudice. Well, that ain't happening. I told him he didn't need my permission to speak with his client.  

 

 

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QUESTION:  If I take anything from them...it would be dismiss with prejudice. Correct?  Does this not mean that they did something wrong and they agree to not ever file against me again on this matter?

 

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QUESTION: If I do accept dismiss with prejucide, I can still file the complaints, correct?

 

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QUESTION: What are my benefits, if they make the offer and I decline and move it on into JAMS?  

 

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QUESTION:  Is it best to take a dismissal?

 

 

And THIS was the short version!   LOL. Any comments/thoughts on this would be greatly appreciated.

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The fact they dismiss with prejudice just means they cannot refile.  It doesn't mean any admission on their part that they did anything wrong.  If they dismiss without prejudice they can turn around and sue you again.  That's why folks on this board recommend you try for dismissal with prejudice.

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You've done a lot of work to get to this point and are in a good position. Don't accept anything other then a DISMISSAL WITH PREJUDICE.  It's really costing the attorney at Johnson Mark a ton of money to continue this action and I'm speculating JM gets a flat fee for each case and they are now deep  in the red. Take the dismissal and file your cost bill so you can get reimbursed for your expenses. 

 

We sent JM (Out of Newburg) a letter at this exact point stating that  our previous efforts were minimal (just 27 filings & action required documents) and just a practice dress rehearsal to get through Oregon's Kangaroo Court Arbitration and that we will aggressively pursue the appeal in earnest and to anticipate a minimum  of $50,000.00 expense for Midland to maintain this action.  Have not heard a thing since and JM will not take our calls to confer on setting up a Court date. No dismissal yet but it's forth coming. Midlands dragging their feet. JM's very tenacious here in Oregon so I would take the dismissal. You can file for any of the FTA violations within one year after the commencement of action.  If JM won't dismiss at least hold your guns on the JAMS. You can always vacate and appeal if they prevail. 

 

HP

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The fact they dismiss with prejudice just means they cannot refile.  It doesn't mean any admission on their part that they did anything wrong.  If they dismiss without prejudice they can turn around and sue you again.  That's why folks on this board recommend you try for dismissal with prejudice.

Will do, VADebtor. Thank you so much.

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You've done a lot of work to get to this point and are in a good position. Don't accept anything other then a DISMISSAL WITH PREJUDICE.  It's really costing the attorney at Johnson Mark a ton of money to continue this action and I'm speculating JM gets a flat fee for each case and they are now deep  in the red. Take the dismissal and file your cost bill so you can get reimbursed for your expenses. 

 

We sent JM (Out of Newburg) a letter at this exact point stating that  our previous efforts were minimal (just 27 filings & action required documents) and just a practice dress rehearsal to get through Oregon's Kangaroo Court Arbitration and that we will aggressively pursue the appeal in earnest and to anticipate a minimum  of $50,000.00 expense for Midland to maintain this action.  Have not heard a thing since and JM will not take our calls to confer on setting up a Court date. No dismissal yet but it's forth coming. Midlands dragging their feet. JM's very tenacious here in Oregon so I would take the dismissal. You can file for any of the FTA violations within one year after the commencement of action.  If JM won't dismiss at least hold your guns on the JAMS. You can always vacate and appeal if they prevail. 

 

HP

Thank you, HP.  Will tell you a bit more I have learned about JM. They are NOT in Newburg, Oregon. :D

 

In their initial summons I freaked me out when it said I had to serve them in person, so I jumped in the car and drove almost 5 hours to that flippin place.  It is a lock box facility. I asked the clerk there (Kevin) how to get it to them that they said this was their address. He was very nice, just explained the do that so they don't have to be in Oregon. They have their mail forwarded to them in Utah. The slimes.  I turned around in tears and drove home...walked into the Clerk's office, I'm sure with red, swollen eyes, and they all looked like they wanted so badly to help me. The gentleman at the front desk (the one with the gun!!!) said...USPS, Certified, return receipt and go home and rest. 

 

It's been a learning experience.

 

As long as I can still file the complaints, I'm good.  

 

QUESTION:  They were given til this Friday (25th) to have the brief at my doorstep. They have been late on literally EVERYTHING...what if they miss that date?  I can't find anything stating what their punishments are for ignoring court dates, etc. I figure I will file a Motion to Compel to give me more time to file my response noting their untimeliness. My response is due on November 1st.

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I received the document yesterday. It is HUGE.  I had to look twice knowing just why they are losing money on me.  It is "PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (BY SUBMISSION ONLY)"

 

MOTION

 

Pursuant to ORCP 47, Plaintiff moves the Court for an order granting Summary Judgment in favor of Plaintiff because there is no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law. In support of this motion, Plaintiff relies on the provisions of ORCP 47 , ORCP 45B, the pleadings and file in this action, the Declaration of Counsel, and the following points and authorities.

 

 

This document has me seeing red. It's filled with even more lies. I am just....grrrrrrrrrrrr......not happy. They don't prove anything in this stupid document. They just say I did this and that. NO DANG PROOF OFFERED ON ANYTHING!!!  Dang these guys make me mad.

 

ARGUMENT AND CONCLUSION

 

The Court shall grant a motion for summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law. Oregon Rules of Civil Procedure 47©. There is no genuine issue of material fact if, viewing the evidence in the manner most favorable to Defendant, no objectively reasonable juror could return a verdict for Defendant.

 

Plaintiff has sued Defendant for a breach of contract. A contract is a binding obligation. Ashyby v. Employment Division,  21 Or. App. 265, 268 (1975). For a contract to exist there must be an offer that is accepted. Klimek v. Perisich, 231 OR 71, 78 (1962). By use of the credit card, Defendant agreed to the terms and conditions of the card. See Citibank South Dakota v. Santoro, 210 Or. App. 344, 348 (2006) (holding that a debtor's conduct in "using the [credit] card constituted mutual assent to the terms of the credit card agreement."). A breach of contract occurs when a party to the contract fails to perform this duty as required by the contract. Kantor v. Boise Cascade Corp., 75 Or. App. 698, 703 (1985).

 

Defendant breached his contract with Plaintiff when he defaulted on the payments of his credit account with Plaintiff. Plaintiff has been damaged by Defendant's breach of the contract. The measure of damages for a breach of contract is to put the non-breaching party in the position they would have been in had the contract not been breached. Siler v. Turnbull,  71 Or. App. 787, 790 (1985).

 

Plaintiff's First Set of Requests for Admissions  were served on Defendant via first class mail sent to the Oregon address Defendant provided in his Answer on April 17, 2013. Oregon Evidence Code Rule 311(q) (ORS 40.135) provides for the following presumption: A letter duly directed and mailed was received in the regular course of the mail. ORCP 45B states that each matter is admitted unless, within 30 days after service of the request the party to whom the request is directed serves upon the party requesting the admission a written answer or objection. More than 30 days have lapsed with no written response provided by the Defendant; therefore, the matters are deemed admitted leaving no genuine issues of material fact. I DID respond to this. I filed it with the Court and they got a copy of it. They KNOW I filed. So how can they even say this??? It's a lie..out and out lie.

 

Therefore, Defendant admits he had a credit account with the original creditor, that he received a copy of the terms of the credit account, that he agreed to pay for the credit balance on the account, and that Defendant used the credit account to obtain goods and services. He admits that he received periodic statements from the original creditor regarding the account and that he did not object in writing to any charges or fees on the account within 60 days of the receipt of the periodic statement reflecting an allegedly disputed charge/fee.

 

Defendant admits that he stopped making payments on the account and that he was notified that the account was in default. Defendant admits that he is indebted to Plaintiff, the lawful assignee of the original creditor, for the full current account balance. Moreover, Defendant admits that he has no evidence to disprove or defend against Plaintiff's claims in this action. Lastly, Defendant admits that per the terms of the agreement, Defendant agreed to pay interested at the rate stated in the complaint on the principle balance of the account plus any additional court costs incurred to enforce the agreement.

 

Plaintiff's Affidavit attached hereto as Exhibit 4 demonstrates that Plaintiff is the real party in interest by purchasing the Defendant's account from the original creditor.  This business records affidavit verifies the amount of damages suffered.  There remain no genuine issues of material fact and Plaintiff is entitled to prevail as a matter of law.

 

Dated:  September 25, 2013

 

illegible signature with an x by the attorney "William McMillen OSB# 070314"

 

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I would love some weigh-in on this....That entire summary is full of crap. First, I am not not a man...William blah blah knows this. We have spoken. He seems to be showing he has a lack of interest here or is just senile.  He says in there that I admitted to all this crap. I denied it all.  And I never defaulted on anything. I was layed off, I called them and said..help, now what do I do. My credit report shows I was always on time (no, I have not shared my credit report with JM or anyone). I called them, they gave me a hardship letter. They said I would receive an invoice in 12 months. I never got one. 2 years later (AFTER it was time-barred), AA contacts me and claims I defaulted.  They have shown nothing. They say they have all this stuff, but admitted in arbitration that it was too costly to acquire. Well, I called Dell. They said it was off their system so could not help. So I signed into my Premier Account and voila...shows I owed nothing. They wiped it off.  They don't have invoices. And it was not a credit card. And there is no proof of an agreement. And, now they claim they were injured????? They didn't have to buy that block of accounts they purchased. They lost nothing.  I had no agreement to pay them squat.  I don't even really know who they are.  Just some company saying I owed them money.  And the business record affidavit is a joke. I called AA..the person that made it doesn't exist. I asked to speak with him/her...called again today and amazing...there is no one "here by that name". And all he says is:

 

1. I, J Gianuario, am an employee of ASSET ACCEPTANCE, LLC, and am competent to testify to the matters stated herein.

 

2. I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records, including computer records of its accounts.

 

3. ASSET ACCEPTANCE, LLC business records demonstrate that ASSET ACCEPTANCE, LLC purchased the receivable at issue in this case from DELL FINANCIAL SERVICES/CIT ONLINE BANK.

 

4. The original creditor in this matter is DELL FINANCIAL SERVICES/CIT ONLINE BANK and the original account number is XXXXXXXXXXXXXXX-4156.

 

5. The business records associated with the receivable demonstrate that our claim against the Defendant is in the amount of $2,379.69 together with the interest at the statutory rate of 9.00%

 

Then someone signed yet another illegible signature

 

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Can I in my response ask for copies of the records?  They ignored my first request.

 

Can I use their argument about the 30 days to my benefit as they responded 76 days (or was it 71) after I stated it was time-barred to bring it up and say they disagreed. They responded 3 days prior to arbitration (with was supposed to occur within 49 days but was held on day 50 something. So many violations.

 

The award request didn't come for 2 months. The Clerk at the Courthouse told me they had 14 days to file it.  They didn't do it.

 

Obviously, I am responding to this. But I am moving forward with JAMS. I told William Blah Blah with JM that he has until 11am tomorrow to make the offer. At 11am I am going to be sending JAMS out.

 

And I am working on wording all the violations properly to file those.

 

QUESTION:  Where do I send notice of violation of the Federal Court Order from Feb 2011, that they are not to pursue time-barred accounts?  I'm not so sure about that one. 

 

Thanks so much for the weigh-ins. Y'all are wonderful.

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I'm a baaaaaaaaaaaaaad girl. So why do I feel so good?

 

I got an email from JM...William whozit.  He turned his words around. Said he was attaching a form for me to complete if I wanted this dismissed without prejudiced.

 

Oh I was livid. Told him to stop playing games. I was tired of it. Told him he was not to contact me again unless it was an offer to DISMISS WITH PREJUDICE. Anything less is not acceptable. I reminded him that he made the offer, I did not ask for it; and would not ask for it.

 

Pretty much told him where to go, without telling him where to go.

 

JAMS and Court it is! 

 

I AM WOMAN, HEAR ME ROARRRRRRRRRRRRRR.  LOL

 

Dang..and I'm not even worried about him.

 

Sounds like he conferred with someone and they said, say this...send her that. She will sign. pffffffffffttttt

 

I would still like any comments.  

 

********************************************************************************************************************

 

HIS EMAIL:

 

Dear xxxxxx,

Ultimately, the party responsible for the costs associated with resolving this dispute is the party that loses the case; this will be the result regardless of whether we go to private arbitration.  Your only defense is that this claim is outside the statute of limitations which my client and the arbitrator expressly rejected as the Oregon statute of limitations applies.  I am preparing my opposition to the motion to compel arbitration and I suspect it will be submitted later today.  In the meantime, if you are interested in my client considering closing the account for hardship based on your unemployment, disability, and lack of assets then you may complete, sign, and return the attached document for consideration.  In the meantime the litigation continues as do collection activities.

Sincerely,

 

William R. McMillen

Attorney at Law (070314)

JOHNSON MARK LLC

901 N. Brutscher St. Ste D PMB 401

Newberg, OR 97132

Phone: 801.285.5708

Fax: 503.538.2588

 

This communication is from a debt collector and constitutes an attempt to collect a debt.  Any information obtained as a result of this communication will be used for that purpose.

 

 

*************************************************

 

Hey, I just thought of something...the Clerk told him to send me their opposition that was filed. He was told he had until the 25th to get it to me, and I had til the 1st to respond. This is not the opposition, it's the motion to make the award.  They would both be considered. So, why is he saying he is going to file another one?  So do I wait until the 28th to file and make the statement that as JM did not do as the court ordered, that it be tossed out?  LOL.  Told you, I love words. I nitpick.

 

Thanks in advance.

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If J&M doesn't do as ordered, you can file a motion for sanctions for failing to follow the order... 

 

 

Also, if you have violations, filed in Federal against Asset AND J&M - see which one throws the other under the bus... 

 

Thank you, 1stStep.  I have everything ready to file my response on Monday morning.  JAMS almost went out today, but decided since I'm not in any real hurry, I will read through it again this weekend and send it out on Monday as well.

 

There are 14 documented (written) violations.  I want to make more, LOL, but all I can do is a he said/she said...and I realize that's not what will fly in court.

 

I'm anxious to get this going again. I am hoping JAMS responds quickly.  Fingers crossed.

 

Thank you to all of you again. Without y'all, I would have gone nuts....oh wait...I DID go nuts.  LOL.

 

Life is still good. I will get through this.

 

Thanks!

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I need some quick help.  I received another letter from JM after I pretty much told them where to go...they changed some of their responses. Now, I don't know what I'm supposed to respond to. They sent me the copy of their opposition as the court clerk told them to by October 25.  However, today I got another one. They mailed it on the 24th, and I just got it. My response was about to be filed, now I have another one to respond to and have it filed in 3 days????  

 

1. The Judge is out of town til next week. Can I file a Motion to Compel to get a few more days or a week to get this 2nd one done?

 

2. I can't find an example of Petitioning for Sanctions for the multiple violations on how long it took them to respond...JM AND the Arbitrator. Is there someone that can help me write that up or provide a link where I can go read on how to write it up?

 

3. I read on Nolo.com that we are not allowed to have attorneys represent us in Small Claims Court. http://www.nolo.com/legal-encyclopedia/oregon-small-claims-court-31785.html   Is this true?  I can't find anything to back this up.  Can I get JM tossed out of the mix so AA has to show up themselves?

 

and finally....

 

4. FEDERAL RULES OF CIVIL PROCEDURE   “Rule 36(a)(3) of the Federal Rules of Civil Procedure Rule 36. Requests for Admission, states, (3) Time to Respond: Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” (Emphasis added)    

 

They did not respond for 71 days (something like that...paperwork is in the other room in the file...it was 3 days before the arbitration hearing, which was held on day 56 when it was supposed to be between 14 and 49 days)

 

 

This is referencing my very first response to their first request for discovery.  1st question. My 1st answer. They never addressed it. It was that the suit was time-barred.  As I read it, they did not respond so they agreed and it should not even be in court. Am I correct on this?

 

 

I apologize for the time being so short. Because of their games, yet again, I don't have time to think this one through and respond on my own. I really could use some help here.

 

Thanks so much.

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I think y'all are tired of hearing from me.  ::daisy::   I figure even if no one responds, I should at least be thoughtful enough to give updates.

I filed my response to the Plaintiff's Opposition to my appeal request. It turned out to be 24 pages. I had phoned the Clerk of the Court and asked at what point I would list my complaints and reasons for requesting the appeal. She said it was proper to do it in the response since it was all about them saying I had no right to appeal.

 

I nearly fainted at the length, but covered almost everything. This morning when I awoke, the first thing I realized was that I'd forgotten 2 complaints. But then dismissed them because I have already sent request to JAMS for arbitration and it's in there.

 

I want to thank everyone for your help. All the private messages with such detail...thank you so much. I actually had in writing 4 instances of what I termed as "mental abuse" by the Plaintiff.  And I think they will fly.  They called me names...totally uncalled for....said I was trying to "get a piece of the apple"...what that was about, I have no clue as I never asked for any money..just that they leave me alone.  They said I was "stirring up unnecessary trouble". They said my effort to get the case into JAMS was nothing more than "just a ploy" on my part to drag this on and cost them more money.  That was rude, considering even the  Terms of Service they said was the real one states its mandatory arbitration through JAMS or NAF or the AAA. Said it can't go to court.  

 

Anyway....I'm tired mentally.

 

Filed yesterday and sent off their copy CRRR.

 

Court date is the 14th and I'm nervous.  The Judge is actually a friend of ours (our town is teeny tiny...we are ALL friends). So I'm absolutely mortified that he is seeing all of this anyway.  And I have no clue if knowing him will hurt or help me. We haven't spoken about it and it's so tempting to pull him aside and say..."Please help". But...I know I can't do that. And he's a good, fair man. I just hope he understands what's happened.

 

I was able to speak to AA; their HR dept. Found out the person that supposedly signed the affidavit about knowing how the company does business does not appear to work there. They said he is not on their computer.  Yes, I brought that up.

 

Found out something else interesting. I was told by the Clerk of the Court to call JM and tell the attorney I had until Nov 4th to file because of his tardiness in sending me the OPPOSITIONS. (He sent 2 of them.)  When I called, I was transferred to someone (yes I have her name) and she was having problems talking because of a cold. I'm really a nice person so I was asking her about the cold. It was taking so long to get his extension that I finally made a comment about how large the company had to be for it to take so long. She divulged to me that the attorney in question didn't actually work for Johnson Mark, that he was in another firm in Oregon and she had to find his phone number. Said he only did work from time-to-time for JM. I finally researched it all out. Found the firm. It's a debt collection agency...Regency Judgment Recovery.  Called them and yep, he was there. I hung up when they transferred me. Bunch of liars. I did bring that up as well. They can't do that. Apparantly, he had to disclose the proper company name, etc that he works for or it is considered deception.   At least that's how I read the Act.  I put it in there anyway, just in case.

 

I am fairly certain that even it is a bit long, that the Judge know me...knows I'm not one to fly off the handle, and hopefully he will show a bit of understanding that I'm not a lawyer and am doing this the very best I can do without having been to law school.

 

Anyway...will let you know when I hear something more.

 

Thank you, everyone, again. You are all wonderful!

LC

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Thanks, BTO. I have learned so much during this process.  And, no, it won't happen again. Once is quite enough, thank you very much!  Now if I can only win this. If not, not sure it matters. I have no job, no assets, am going on medical disability....can't get blood from a turnip. So far, my credit is fine.  I was never late on any payments so my Dell account is just fine on my credit report. I went and checked it. All current up til the write off. Still not so sure about all that...Dell won't discuss it..BUT...my Premier Account is still open and still fine.  Crazy.

 

Life is good., Could be worse!

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