Jump to content

Sued by Jerold Kaplan Law Office


Recommended Posts

Hi everyone,

 

I'm being sued by Barclay Bank Delaware represented by Jerold Kaplan Law Office, P.C. 

This is my first time dealing with the courts. I'm requesting assistance in preparing a response.

 

I have several intitial questions:

I'm thinking about going to Legal Shield to get help, has anyone had experience with them?

They listed my wife as Jane Doe and claim her as also liable for the debt. We weren't together at the time of this debt. Can they still go after her?

The address they have on the summons is wrong. Do I just call up Jerold Kaplan and let them know of my current address?

 

 

1. Who is the named plaintiff in the suit?

Barclays Bank Delaware

2. What is the name of the law firm handling the suit?

Jerold Kaplan Law Office, P.C.

3. How much are you being sued for?

$1998.50

4. Who is the original creditor?

Barclays Bank Delaware

5. How do you know you are being sued?

Served a Summons

6. How were you served?

Delivered to my parents house and I picked it up there.

7. Was the service legal as required by your state?  

Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

No contact.

9. What state and county do you live in?

Maricopa County, Arizona

10. When is the last time you paid on this account?

12/03/2012

11. What is the SOL on the debt?

If I read my agreement correctly, it states that Delaware law applies to this card and the SOL is 3 years.


12. What is the status of your case? Suit served? Motions filed?

Court site says, "01 - New Case"

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). 

20 Days. The filing date on the summons is the 19th of June, but I was served on the 29th. Do I have 20 days from the 19th or the 29th?

 

Claim 1: I'm a resident of Hassayampa Precinct Maricopa County. That my spouse is also responsible for the debt because the debt was incurred during the marriage.

Claim 2: I owe "$1998.50, cost and for such other and further relief as to the court may deem just."

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  

An affidavit from a Barclay employee.

Link to comment
Share on other sites

Can you post the affidavit?  Redact (mark out) any personal info if you do.

 

Are they claiming 'breach of contract' or an 'account stated' claim?

 

Were you married when you opened the account?  Did you use it at any time while you were married?  Is your spouse named as a defendant (upper left corner of the complaint where it says 'Barclays vs. you')?

 

You have 20 days to respond from the date you were served.  The counting begins the day after you were served (if you were served on a Friday, Saturday would be day #1).  If the 20th day falls on a weekend or holiday, the due date rolls over to the next business day.  To update your address, file a "Notice of Change of Address" with the court and serve a copy on Kaplan.  You can do this with your response.

 

I don't know anything about Legal Shield.    A quick glance of their website, I don't see anything about representation for debt collection lawsuits.  And under the "financial" section there is a phrase that says something like lawsuits against you must be filed in "state court".  You're in county Justice Court.  Even if they provided representation on debt collection lawsuits, they probably wouldn't do it for Justice Court cases.  It wouldn't hurt to call and see what they have to say, though.

 

Barclays is an "Original Creditor", so depending on what the affidavit says, you may want to consider trying to settle this account as opposed to fighting it.  Due to the age, you can bet on them having all of the original records on this account, and if you fight it and lose, you could realistically be looking at a judgment against you not only for the debt but for $10,000 in Barclays' legal fees.

 

The other option to look into is arbitration.  Your agreement will spell out the terms and what company you can use as the arbitrator.  If it says Barclays is responsible for paying the costs of arbitration and will absorb their own legal fees, this could be your golden ticket.

Link to comment
Share on other sites

Thanks for the response Harry.

 

I've attached the affidavit below.

 

The complains is composed of two sections.

 

Section I:

That the defendant(s) is/are residents of HASSAYAMPA PRECINCT MARICOPA County State of Arizona, and this Court therefore has legal authority over the subject matter of the claim(s) and over the Defendant(s). The above named Court is the proper location for this action. That the Defendant's spouse, if any, is also responsible for the debt that forms the basis of this action pursuant to Arizona Community Property Law because, upon information and belief, the debt was incurred during the marriage of the Defendants.

 

Section II:
 

That heretofore and prior to the filing of this action Defendant(s) did, for valuable consideration enter into a contract with Plaintiff, that the balance remaining due and unpaid on said contract at the time of the filing of this complaint is in the amount of $1998.50. That said Defendant(s) has/have failed and refused to pay said balance and that said balance is justly due and owing to Plaintiff herein.

 

WHEREFORE, Plaintiff demands judgement against Defendant(s) and each of them, for $1998.50, costs and for such other and further relief as to the court may deem just.

 

 

If I try to settle, do I contact Jerold Kaplan or Barclay's directly?

 

I found these two sections in my agreement.

 

Default/Collection Costs.
 

Unless otherwise prohibited by law, your Account will be in default and we may demand immediate payment of the entire amount you owe us if: 1) in any month we do not receive your Minimum Payment Due by the Payment Due Date; 2) you make Purchases, initiate Balance Transfers, use a Check, or obtain Cash Advances in excess of your credit line; 3) you fail to comply with this Agreement; 4) there is a filing for your bankruptcy; 5) you die or become incapacitated; or 6) we believe in good faith that the payment or performance of your obligations under this Agreement is impaired for any other reason. As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account) and, in the event we refer your Account after your default to an attorney who is not our regularly salaried employee, you agree to pay the reasonable fees of such attorney. We will not be obligated to honor any attempted use of your Account if a default has occurred or we have determined to terminate your Account or limit your Account privileges (as discussed below).

 

ARBITRATION

At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, arising from or relating in any way to this Agreement or your Account, or their establishment, or any transaction or activity on your Account, including (without limitation) Claims based on contract, tort (including intentional torts), fraud, agency, negligence, statutory or regulatory provisions or any other source of law and (except as otherwise specifically provided in this Agreement) Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration. For purposes of this provision, “you” includes yourself, any authorized user on the Account, and any of your agents, beneficiaries or assigns, or anyone acting on behalf of the foregoing, and “we” or “us” includes our employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns, and to the extent included in a proceeding in which Barclays is a party, its service providers and marketing partners. Any Claims sought to be made or remedies sought to be obtained as part of any class action, private attorney general or other representative action (hereafter all included in the term “class action”) shall be subject to arbitration, and arbitrated on an individual basis between you and us, not on a class or representative or other collective basis.  The arbitrator shall not have any authority to entertain a claim, or to award any relief, on behalf of or against anyone other than a named party to the arbitration proceeding.  If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial.

Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action.

The arbitration shall be administered by the American Arbitration Association, www.adr.org, 950 Warren Avenue, East Providence, Rhode Island, 02914, 1-866-293-4053 (the “Administrator”). The Administrator provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its web site or by mail as set forth above. The Administrator will apply the rules and procedures in effect and applicable to the claim at the time the arbitration is filed. The Claim will be heard before a single arbitrator.  The arbitration will not be consolidated with any other arbitration proceedings. The Administrator shall resolve each dispute in accordance with applicable law.

If you commence arbitration, you must provide us the notice required by the Administrator’s rules and procedures. The notice may be sent to us at Barclays Bank Delaware, P.O. Box 8801, Wilmington, DE 19899-8801. If we commence arbitration, we will provide you notice at your last known billing address. We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed.

This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16.  No class actions, joinder or consolidation of any Claim with a Claim of any other person or entity shall be allowable in arbitration, without the written consent of both you and us.  In the event that there is a dispute about whether limiting arbitration of the parties' dispute to non-class proceedings is enforceable under applicable law, then that question shall be resolved by litigation in a court rather than by the arbitrator; and to the extent it is determined that resolution of a Claim shall proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration.

A party can file with the Administrator a written appeal of a single arbitrator’s award within 30 days of award issuance, requesting a new arbitration in front of three neutral arbitrators designated by the Administrator. The panel will reconsider all factual and legal issues, following the same rules of procedure, and will make decisions based on majority vote. Any final arbitration award will be binding on the named parties and enforceable by any court having jurisdiction. Judgment upon any arbitration award may be entered in any court having jurisdiction.  

We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator.  Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings.  Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.   In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court.  If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request.

This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

 

ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION.

 

 

From my understanding of the above this means that they only incur the costs if I win arbitration. What would be the difference between going to court and arbitration?

 

Thanks again for your help.

post-165959-0-12166900-1404236516_thumb.

Link to comment
Share on other sites

Based on this:

"We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator.  ...  Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.  ...  If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request."

 

I think I would arbitrate this baby.

 

I'm not clear from reading the AAA fee rules (https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004102) but it seems like if you elect arbitration they would have to pay a total of $975 that they cannot recoup.  Then they will have legal expenses on top of that, which, if I read the agreement correctly, they cannot ask you to pay for either.

 

Let's see what @Public Enemy @lheart @BV80 and @nobk4me has to say on the arbitration issue...  In the mean time, you can read this thread to see how arbitration works: http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

 

 

As far as the affidavit is concerned, it's not sufficient to render a judgment in Barclay's favor in trial court.  "The purpose of a custodian's affidavit is to authenticate evidence — such an affidavit is of little value when it does not attach the evidence at issue."  Wells Fargo Bank, NA v. Allen, 292 P. 3d 195 - Ariz: Court of Appeals, 1st Div., Dept. D 2012.  (http://scholar.google.com/scholar_case?case=16306185451700995909) BUT! Barclays can always go back and get a new affidavit that references specific evidence (e.g. account statements) and then attach that evidence, and in that case, it will probably get them a win.  If it was a $20,000 debt, I'm sure they would go to this trouble.  For the amount of your debt, there's no way to know what they will do and to be safe, I would still count on them doing it.

 

Also, keep in mind that you're in justice court and the JP will likely grant anything Barclays puts in front of him/her and they will probably get a judgment based on the affidavit you attached.  In that case, it will be on you to appeal it to get the judgment reversed.

 

Here's my advice:  If my reading of the arbitration agreement and rules is correct, I'd go that route.  Failing that, if you have 2-3 years of your life you can dedicate to fighting this in court, you have a chance of being a big enough pain their backside to where they will dismiss.  If neither of those options work for you, you can try to work out a settlement you can live with.

Link to comment
Share on other sites

@Harry Seaward

 

This one's difficult in my opinion.  You're dealing with an OC, and more than likely, they have to evidence to prove their claims.   But, the amount claimed is relatively low, os it's up for grabs as to whether Barclays would bother with arbitration.  But since we don't have a crystal ball, we don't know if they'd go through with it or not.

 

If they don't go through with it, it's over.  But they could sell the account, and the OP might have to deal with a lawsuit by a JDB.  If they do go through with it, he could lose.

 

Whether in court or in arbitration, an OC is more difficult to defeat if it provides any evidence and a sufficient affidavit (unless the defendant has a valid defense, of course).

Link to comment
Share on other sites

@BV80

@Harry Seaward

 

This one's difficult in my opinion.  You're dealing with an OC, and more than likely, they have to evidence to prove their claims.   But, the amount claimed is relatively low, os it's up for grabs as to whether Barclays would bother with arbitration.  But since we don't have a crystal ball, we don't know if they'd go through with it or not.

 

If they don't go through with it, it's over.  But they could sell the account, and the OP might have to deal with a lawsuit by a JDB.  If they do go through with it, he could lose.

 

Whether in court or in arbitration, an OC is more difficult to defeat if it provides any evidence and a sufficient affidavit (unless the defendant has a valid defense, of course).

Yeah, this is sort of where I was at as well.

 

What are your thoughts on the arbitration agreement?  Does it seem to you that Barclays will have to eat all of their costs, including legal fees?  If that's the case, I don't see them spending $7,000 that they cannot recover to collect a $2,000 debt.

Link to comment
Share on other sites

@Harry Seaward

 

 

@BV80

Yeah, this is sort of where I was at as well.

 

What are your thoughts on the arbitration agreement?  Does it seem to you that Barclays will have to eat all of their costs, including legal fees?  If that's the case, I don't see them spending $7,000 that they cannot recover to collect a $2,000 debt.

 

Well, the agreement says:

 

Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.

 

Does the above statement include a possible award of fees by an arbitrator?   I don't know about AAA, but the JAMS rules say that an arbitrator can award fees unless prohibited by the contract.  Does that sentence prohibit the arbitrator from awarding fees?   If it doesn't, and fees were to be awarded and included with a judgment, would the OP have to pay them?

 

If I were going to choose arbitration, I'd speak to an attorney first to get those questions answered.

 

The OP has several choices.

 

1.  Arbitration.  If the OC dismisses, he may still have to deal with JDBs in the future. 

 

2.  Fight it out in court.

 

3.  Settle for hopefully less than the full amount.

Link to comment
Share on other sites

@organiceggs

Thank you all for the responses.

 

Let's say I go through with arbitration instead of settling, what happens if I lose arbitration? From what I've read a loss means they'll gain a judgement on me, am I correct in this?

 

Yes, it would be the same as if you fight it in court and lose.

 

The only advantage to arbitration is a strategic one which is that a plaintiff will not follow you into arbitration knowing they will lose $5,000+ to possibly recover a $2,000 debt.

Link to comment
Share on other sites

You would have to get the court to sign off on that. If you initiate in JAMS and pay the fee, but the agreement does not provide for JAMS, you run a likely risk of having the court order you to use whatever arbitrator provided by the agreement and then you could lose the fee paid to JAMS.

(JAMS might refund depending on how far into the case you get, I don't know. I personally wouldn't risk it.)

Link to comment
Share on other sites

  • 1 month later...

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.