azneb

Capital One Attorney fighting my request for Arbitration

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Agree with ArtVandelay.  Cap One attorneys will fight to the death regardless of the amount.

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Anyone know where I can find an example of motion to oppose MSJ.    I have no idea how to write one up.

 

Thanks

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Just about done with my motion opposing MSJ. I will file that this week. Mediation is set for I believe June 3rd. I will assume at that time they will offer to settle. Does any one know if Cap1 offers decent settlement terms? The way they are fighting I would be surprised if they do.

Thanks

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...

Does any one know if Cap1 offers decent settlement terms? The way they are fighting I would be surprised if they do.

Thanks

Without significant leverage I am unaware of Capital One Bank DC attorneys offering "decent settlement terms". They litigate because they are DC attorneys and suing consumers (they are typically less enthusiastic about arbitrating consumers) is the primary purpose of their existence YMMV. They euphemistically refer to their distasteful destruction of families as the "protection" of creditor rights.

 

For those that want some hard data on odds of Capital One DC attorney giving "decent settlement terms" there is likely a limited amount of it available in the court records and the country recorders office.

 

A quick online search of one county recorder office's records in AZ, using capital one or capital one bank as grantor and the type of recording judgment produced:

 

The first record that I saw in the county records was for Kaplan and was a 2001 judgment renewed in 2006 and again in 2010. That one was released as satisfied in 2011. All for a little less than $1k.

 

The first Hammerman & Hultgren, P.C. judgment I found in the county records was a stipulated judgment. It appeared to be for the full alleged debt and court costs at around $5.5 k. It appears that the willingness of the consumer to agree to a stipulated judgment caused Capital One's business partner Hammerman & Hultgren, P.C. to generously waive their attorney fees.

 

Whenever I spend my time researching the data it always convinces me that I must obtain leverage, write a check, or live collection proof for decades. No leverage equals a bigger check. My efforts always focus on leverage.

 

Reading the court or county records on defaults and stipulated judgments is something I find distasteful and the activity reminds me why I try to contribute to the failures and losses of the collection machine that is busy destroying lives & families and lining their own pockets. At the same time I am focused on trying to help others avoid or mitigate the fear and pain the collection machine intentionally inflicts.

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I won my motion to reconsider arbitration.   Went and filed my motion opposing summary judgment and when asked about the motion to reconsider she said it was granted back in April.   I also asked her what the OC's attorneys were trying to do by filing the MSJ.  She stated, "they filed it because they don't want to arbitrate or come to court and are hoping judge sides with them in their quest for SJ.

 

It hard to believe I actually won a round in this on going mess.

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Did the court issue a stay pending arbitration?  If so, I would say the Cap One attorneys have violated the FDCPA, by taking an action they are prohibited from taking: continued litigation when the case has been stayed.  They are also violating a court order.

 

I would suggest consulting with a consumer attorney.  You may have some major leverage here against the Cap One lawyers.

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I am looking for 2003 agreement.   Anyone know where to find it?   Also the big question is which agreement is in effect once someone defaults?   I have read that the agreement that's in place at time of default is the proper agreement.    Is that true?

try this

http://www.consumerfinance.gov/credit-cards/agreements/

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I won my motion to reconsider arbitration.   Went and filed my motion opposing summary judgment and when asked about the motion to reconsider she said it was granted back in April.   I also asked her what the OC's attorneys were trying to do by filing the MSJ.  She stated, "they filed it because they don't want to arbitrate or come to court and are hoping judge sides with them in their quest for SJ.

 

It hard to believe I actually won a round in this on going mess.

I don't recall ever being granted a motion I filed without being noticed by the court. It seems a bit odd not to receive notice.

 

I don't know what the specific terms of the court's order are in the MTR "win". I would want to read and reread the actual order by the court regarding the motion to reconsider and be sure I fully understood the terms and implications.

 

Under A.R.S. §12-3007. Motion to compel or stay arbitration

G. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

 

My concern when compelling arbitration is whether the opposing party can convince the court that my continued participation in litigation somehow waives my right to enforce contractual arbitration. Whether opposing attempt to paint the filing of an MOSJ aas continuing litigation and waiver of arbitration IDK.

 

The timing of the court issuing the MTR "win" (as well as the specific terms of the order) and the timing of the plaintiff's filing of the MSJ may have significant implications FAIK.

 

Did the court issue a stay pending arbitration?  If so, I would say the Cap One attorneys have violated the FDCPA, by taking an action they are prohibited from taking: continued litigation when the case has been stayed.  They are also violating a court order.

 

I would suggest consulting with a consumer attorney.  You may have some major leverage here against the Cap One lawyers.

Consulting a competent winning consumer attorney is usually a good idea. Especially when the litigation doesn't seem to be routine.

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I was never notified by the court.  Maybe the post office delivered to wrong address.    I was granted my motion of reconsideration therefore meditation has been put on hold.  Since the time the motion was granted the OC has filed a MSJ in which I answered. 

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Update:   I called the Oc's attorney to ask them who Cap 1 uses for arbitration.   They told they dont arbitrate, however I filed motion to arbirtate which was granted.

As of now I have no idea how to proceed.   On the judges order it states " place inactive for 90 days pending arbitration"  cancell mediation.    I have until the 20th to do something.   Is there anything I can file to get the OC to play ball?

While on the phone their attorney couldnt believe we were fighting over 2k.    He asked what my defense was and I told him they have all that info and to go back and read it.    Ask me about a settlement and I told him to put something in writing.  His response was "thats not how it works"   I wanted to call bs because discovers oc presented the first offer when I was fighting them.

 

Oh found out their MSJ was denied.

 

Thanks

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Nice job - perhaps referring him to other instances of Cap 1 arbitrating would refresh his memory. Sounds like he's not used to anything but default judgement.

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Update:   I called the Oc's attorney to ask them who Cap 1 uses for arbitration.   They told they dont arbitrate, however I filed motion to arbirtate which was granted.

As of now I have no idea how to proceed.   On the judges order it states " place inactive for 90 days pending arbitration"  cancell mediation.    I have until the 20th to do something.   Is there anything I can file to get the OC to play ball?

 

Yes, you file with JAMS and open arbitration.  You are the one who motioned to compel it therefore you must file to start the process.  If they refuse to do their part once you initiate JAMS then you can motion for dismissal based on their refusal to arbitrate as ordered by the court.

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Would anyone have a little more information on this thread?

 

I have been trying to find information on Motioning the court for private arbitration. my case has been assigned into the manditory arbitration here in oregon, i do not believe the court manditory arbitration is fair to the consumer and that i have the right to choose how to handle this, i was looking into JAMS,  and when i came to the part in the application were it asked about the,

 

*ARBITRATION AGREEMENT: This demand is made pursuant to the arbitration agreement which the parties made as fallows (cite location of arbitration provision and attach two (2) copies of entire agreement).*

 

I realized this was asking for something in an account agreement, I do not have a copy of any account agreement (this is for a Fingerhut account) because i never had an account, there was no account agreement attached to the summons/complaint that i received and so i got to thinking what is the account agreement for a FH account and when i found online there is a arbitration clause in there for Manditory Private Arbitration with AAA, so what should i do? Motion the court for JAMS or play this card and request the account agreement Arbitration with AAA?  and dose this look like im accepting the account is mine if i do this? any thoughts?

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When you filled your MTC Arb. did you send an affidavit attached to it saying to the best of my knowledge this agreement is blahh, blahh....................... 

 

Also when you submitted the MTC Arb. paper work with the court did you file with Jams, And submit everything as if you were approved for it (for lack of a better term) Every one involved should have received a Packet/Booklet worth of paper work and supporting documents.

 

Should have included cover letter to Jams, notice to elect Arb. full copy of whatever card agreement your using outlining the Arb. clause, affidavit for the agreement your using,    Everything as if you were heading to Arb.

 

Then let them fight at the MTC Arb. hearing. There 1 page of a 10 page agreement/contract  VS. your well crafted clearly spelled out path to Arb.     

 

Another thing is about a week or so after you file with Jams you will receive a "Notice of intent to initiate arbitration" It is not a confirmation or a notice that your in Arb. but shows absolute intent and that Jams is on board and ready for the ride.

_______________________________________________________________________________________

Edit:  

 

Sorry I missed the last update, But congrats on winning your motion. Now regarding the time limit put in place by the Judge (It's BS but that's a fight for another time and place) Because you initiated you will need to follow the language of the agreement you used. If it says they have to pay no mater who initiates then no problem you can just let the clock run out, Then the case should get dismissed because they did not comply. If the agreement says you both pay (Your only responsible for $250.00) and if they don't pay and you also don't pay then you will be back in court. So in this case where the Judge has placed a time limit don't play cat and mouse, Pay the $250.00 and think of it as the cost of doing business.

 

 

Since your fighting the OC there is a good chance they will not lay down they have all the resources. But no mater there is a point were your $2000 is not worth it to them anymore. Maybe it's the 2 nd. day of bleeding them dry with motions and wittiness who knows.

 

If they accept the fight then your beyond just pushing paper work around. So save ever conversation with them especially anything with them saying they never arbitrate. Don't talk to them on the phone anymore. Use email or USPS RRR that way anything they claim you will have in writing and they can't deny it.         

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nobk4m.

Thank you for your response to my post, sorry it took me so long to get back to thank you.

It really pointed out to me what a bad ideal it might be to start attaching a card agreement to a card i never had.

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