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Sued by Midland in OK by Love, Beal & Nixon


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@saytar I know how to fight a credit suit. I was posting the difference between contracts, they don't need one with your siggy for it to be 5 years vs 3. I'm not even saying don't try that defense, raise it along with everything else, even if you lose, at least you made them work.

But don't be surprised if the court rules it as a 5 year sol. They still have to get the heresay in. Good thing most courts are not like az., they let the JDB authinticate the OC records.

I don't know specifically about how Oklahoma has ruled, but I have seen over and over how most states rule on this very subject of a cc. Being a written vs implied contract. And yes most times if they don't have a copy of the agreement they fall back on account stated. That gives you more ammo to make them prove it. The offer, the acceptance, the amount, meeting of the miss to make the agreement. Pretty tough stuff for a JDB. Throw standing in there and they should never win a case in court.

Good thing is most not all cases where the person being sued and they learn, they prevail. Bad part is a lot of people don't have the time to learn, they just can't grasp the concept, or they are to scared and ignore it hoping it will go away. You just gotta know what your up against and put your energy and learning more toward the things that will help you prevail.

Oh and most the time account stated may be called implied, but it isn't classified as an oral contract. This link says ok. On debt is 5 years.

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@pureguava

 

I know these post at times appear contradictory.....but this is a great way to throw ideas out.......one or two shoot them down............or they suggest another aspect you may have missed, a statute you may have over looked, etc....

 

I am always appreciative of any input, for or against.......They cannot but help anyone improve and sharpen skills to defend one's self........ we get enough bantering around going and suddenly all

 

kinds of methods, statutes, case law get dug up......some that even the poster themselves were not aware of until they looked and Goggled at it in a different way....

 

hope my contributions give you some idea's of your own.....

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@saytar I know how to fight a credit suit. I was posting the difference between contracts, they don't need one with your siggy for it to be 5 years vs 3. I'm not even saying don't try that defense, raise it along with everything else, even if you lose, at least you made them work.

 

Key words make them work...something they hate to do..................wasn't saying you don't.....just that without proving it, it doesn't exist......good points, I love your sharp wit and appreciate any input.

But don't be surprised if the court rules it as a 5 year sol. They still have to get the heresay in. Good thing most courts are not like az., they let the JDB authinticate the OC records.

 

Amen on not like AZ.......something unhinged out there...

I don't know specifically about how Oklahoma has ruled, but I have seen over and over how most states rule on this very subject of a cc. Being a written vs implied contract. And yes most times if they don't have a copy of the agreement they fall back on account stated. That gives you more ammo to make them prove it. The offer, the acceptance, the amount, meeting of the miss to make the agreement. Pretty tough stuff for a JDB. Throw standing in there and they should never win a case in court.

 

That Statute is about the ONLY one that actually breaks it down and actual states a number....a reading of the Consumer Code, Commercial Code keeping that statute in mind is...other than a specific ruling where the Supremes examine that is only way to even get close to understanding it...OK has the most inconclusive, whishy washy definition of it, a real pain........It really varies....ask 50 OKLA attorneys that and half go one way and the other go the other way .................and each has their own spin on it,,,,at least from my experience. That's why I go with 3 and push them to "prove it".........

Good thing is most not all cases where the person being sued and they learn, they prevail. Bad part is a lot of people don't have the time to learn, they just can't grasp the concept, or they are to scared and ignore it hoping it will go away. You just gotta know what your up against and put your energy and learning more toward the things that will help you prevail.

 

Amen on that.......I may even lose mine, but their going to work for it....it is a very time consuming endevor, been awhile since English Writing Classes...had to re write mine at least twice with numeerous tweaks and I'm still not really happy with it....

Oh and most the time account stated may be called implied, but it isn't classified as an oral contract. This link says ok. On debt is 5 years.

 

Oklahoma really hasn't caught up with the Credit Card Era yet....still seem to be operating on contracts, deeds, the old merchant store charge account..ie the pad on the owner's desk, etc..........very poor defining of credit cards. That is why I think it makes it extremely hard to fight them here.....no gloves that fit to punch with.

 

And you just keep on critiquing me...I love and appreciate it....makes me keep learning and from getting lazy..

 

Nice to see such a sharp mind in CO........That was where I got a baptizism in Courts and first learning steps, but its been many years.......Helped my stepdaughter with CPS fight.........made an 8 month slam dunk take them almost 3 years.............Talk about a quicksand of law and procedure......those people make up stuff, use some Federal laws, mix in some ill written CO law and stir violently...sprinkle with psycho babble.

 

They just keep coming out of nowhere some of the oddest stuff.........and they lie wayyy worse than most JDB......

 

Got it as far as getting approved to present an appeal to CO Supreme Court.....just couldn't afford the reproduction costs (a 2000 page CPS file and 20 copies just to start) and the every 2-3 week 600+ mile drives for the constant hearings..

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shellieh98......See what you get from this case....might be useful..

 

Fourth Nat. Bank of Tulsa v. Appleby
1993 OK 153

864 P.2d 827
64 OBJ 3519
Case Number: 74350
Decided: 11/23/1993
Supreme Court of Oklahoma

 

¶20 Section 23 requires us to examine the statute of limitations applicable to ANR's claims upon which their liens were based. The relationship between Appleby and ANR in the wells at issue here was based on an implied contract [864 P.2d 833] arising under a statute. Consequently, the three-year statute of limitations governing implied contracts and liabilities created by statute, 12 O.S. 1981 § 95 , Second, applied.6 

 

¶21 Appleby and ANR clearly intended that ANR would submit monthly statements for its charges and that Appleby would pay them. Appleby paid ANR's monthly statements in the early stages of the drilling and operation of the wells. Thus, the parties treated ANR's bills as statements of an open, running account. "The statute [of limitations] commences to run on an open running account at the time of the entry thereof." Pitts v. Walker, 188 Okla. 17, 105 P.2d 760, 761 (1940). Where a contract provides for installment payments, and the payee has a right to sue upon default on any payment, the statute of limitations on each installment begins to run from the date of the payor's failure to make the payment. Turk v. French, 202 Okla. 60, 210 P.2d 154, 156 (1949). ANR does not contend that it could not have sued Appleby as each monthly billing was unpaid. The record will not support any such interpretation of the parties rights and obligations. Appleby made his last payment to ANR in 1981. Thus, sometime in 1984, ANR's right to sue on unpaid statements over three years old was barred by the statute of limitations. When ANR perfected its liens in July 1989, its unpaid statements submitted before July 1986 were barred.

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@pureguava

 

 

Is that saying I needed to sign something, in order for the SOL to reset, or that I did by only making a payment (never acknowledged the debt).

 

 

 

No. 

 

In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

 

The statute provides for 3 actions to reset the SOL.  Payment, acknowledge, or promise.  However, only "acknowledgment" and "promise" are included in the last phrase. 

 

"but such acknowledgment or promise must be in writing, signed by the party to be charged thereby."

 

The reason is because an oral acknowledgment or promise to pay is not proof that you really promised to pay.  That's why those 2 conditions have to be in writing.  A payment, on the other had, is an action that's provable through records.

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@pureguava

 

This one is very interesting interpretation of what constitutes an initial communication by a debt collection attorney on a debt by OK Appeals Court........

 

Some very interesting reading as to How OK treats a litigation initial communications under the FDCPA..........shadowing etc.

 

Mendus v. Morgan & Associates, P.C.
1999 OK CIV APP 137
994 P.2d 83
71 OBJ 177
Case Number: 92418
Decided: 06/29/1999
Mandate Issued: 12/13/1999

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@BV80

 

I have attached the screenshot of the CR for Citi and Midland. Below is the text version (not sure if the text contains all pertinent information) for Citi.

Experian 10-2014 CR says:

Status: Closed. $2,378 written off. $1,110 past due as of Nov 2011.
Date Opened: 11/2003
Reported Since: 11/2003
Date of Status: 11/2011
Last Reported: 11/2011
Type: Credit card
Terms: NA
Monthly Payment: $0
Responsibility: Individual
Credit Limit/Original Amount: $1,800
High Balance: $2,378
Recent Balance: $2,017 as of 11/2011
Recent Payment: $0
Comment: Purchased by another lender.

 

It shows it was CLS (Closed) on 08-2008 and 11-2011, with 30, 60, etc and CO (Collections) in between. I'm assuming the 1st CLS then CO was it being closed and going to LTD Financial and the last, and final, CLS was before it went to Midland (and they took it over). I'm not sure why there is no mention of it from the last CLS (11-2011) on Citibank until Midland shows up (01-2014) on my CR.

post-167493-0-91167700-1424241155_thumb.

post-167493-0-83734300-1424241542_thumb.

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@pureguava

 

Considering that Citi was reporting in 2011, that means they still owned the account.  That would indicate that in 2010, LTD Financial was collecting for Citi meaning that LTD is not a JDB.

 

If LTD was collecting for Citi, then it's possible that Midland could get a copy of the credit card statement that shows that payment.   Do you have the same account with the same bank that you had in 2010?

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@BV80

 

Yes.

 

A few days ago, I called LTD and they confirmed there was a payment with LTD for that account, and see it in my old bank statements on that (and still existing and current) account.

 

I would assume they could easily do the same thing I did and confirm a payment. I'm not sure there would have been a "credit card statement", as it was an informal payment over the phone, but I do not know what goes on or constitutes a "credit card statement".

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@pureguava

 

If the payment was made to Citi through LTD, then Citi should have a record of it.  Note that I said "should".  Whether they do or not, remains to be seen.   If Citi doesn't have a record of it, then Midland is either going to have to prove that LTD had the right to collect for Citi and that the payment went to Citi, or they're going to have to prove that Citi sold the account to LTD and provide a bill of sale from Citi to LTD.

 

Considering that Citi was still reporting in 2011, I don't think they sold the account to LTD.

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@BV80
 
Well, LTD indicates it is a "debt collector", so I'm not sure if it was "made" or "went" to Citi or not.
 
However, in the FAQ's it shows:
 

Did You Purchase This Debt?

No. We don’t purchase accounts. Most likely, your account is still with your creditor, although we also work for companies that buy debt. We are hired for our expertise in collecting debt. We’re known for our ability to work with you and resolve financial problems.

 

 

If they work for companies that buy debt, and Citibank is the previous "owner" of the debt, then I would think they are doing so on their behalf and it was not purchased, like Midland.

 

Arb will be $250 and a bunch of time and effort. I'm considering offering 40% ($800), but not acknowledging any debt is owed, and that it cannot be sold or used against me (whatever that term is) in the future. Probably along the lines of not wanting to take the time to go to arb and/or whatever brief things I can mention that implies it is not necessarily a money thing, but a time thing.

 

What would be your thoughts, in light of recent discoveries and previous history, on that? 

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@pureguava

 

So, LTD was collecting.  Again, right now, there's no way of knowing whether or not Midland has a Citi record that shows the payment. 

 

I don't know how much work is involved in motioning to compel arbitration.  I don't think there's too much involved if the JDB doesn't oppose the motion,just decides not to arbitrate, and drops the lawsuit, but of course, we don't know what Midland would do.  However, we also don't know if they'd accept $800.00.  They might want more. 

 

If you just want this over and done, settling is definitely the quicker option.  Personally, if I were going to settle, I might offer less than 40% to give me room to negotiate. 

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@BV80 

 

I'm assuming Midland can get a record, as LTD was collecting and I got verification over the phone. If they can do that, I can't see them (given what I know they currently do and/or can have) not saying, "Sure, let's go to arbitration! We'll also be seeking all the fees it costs us to do this, from you."

 

I would think the threat of arbitration might deter them, if it weren't for the previous things mentioned.

 

Start at 30%? Are you aware of any forums/post/sites that offer advice on how to go about it (phone?), what to say, and more importantly what not to say?

 

I very much appreciate the help you've already given me.

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If you want to settle..I'm with BV80....but  wouldn't start at 30% that's way too much...try 10-15....and make them dragggggg you slowly and painfully up % by %.....very small steps and lots of them.

 

Pay nothing without ALL your terms met, in writing...then like I said at least 14 days to go over it and make payment...IF it meets the terms....and don't Pay from any Bank account you own....Cashier's Check or Money Order....and keep the Reciepts.......................for a long long time.........and off your credit file.

 

They paid maybe 100 for the account..their court cost (their darn fault in my opinion) about 205 or so right now....if they file a MSJ add $65 to that......20% max would cover it all. And that's being too generous...............800 grow a long white beard and your Santa Claus...

 

Remember though.....I looked through the last 5 yrs or so in my little sparsely populated county ....................and any time they met resistance at all from an attorney...they dismissed and folded like a cheap suit....then its 150 miles to My Court for them too.......

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@pureguava

 

So, LTD was collecting.  Again, right now, there's no way of knowing whether or not Midland has a Citi record that shows the payment. 

 

I don't know how much work is involved in motioning to compel arbitration.  I don't think there's too much involved if the JDB doesn't oppose the motion,just decides not to arbitrate, and drops the lawsuit, but of course, we don't know what Midland would do.  However, we also don't know if they'd accept $800.00.  They might want more. 

 

If you just want this over and done, settling is definitely the quicker option.  Personally, if I were going to settle, I might offer less than 40% to give me room to negotiate. 

 For FYI............its mine....

 

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION

NOW COMES the Defendant, Pro Se Broke Debtor, and hereby moves this court for an order compelling the parties to submit ALL matters regarding  Case Number  .  XXXXXX to private contractual binding arbitration and to stay or dismiss all actions in this Court.

 

In support of this motion, Defendant shows the Court as follows:

 

1) On or about October 11, 2014, Plaintiff filed and served its Complaint against the

Defendant referencing a GE Capital Retail Bank-Care Credit account.

 

2.) Defendant has failed to initiate arbitration as is required by the Care Credit Card Account holder agreement ("Agreement") and attached a copy of the referenced Agreement to the complaint served (Exhibit A).      

 

3) The Agreement (page 6 of 8) contains an binding arbitration provision pursuant to which

either party “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 providers that accept the card or program sponsors if it relates to your account.......” Furthermore, the Agreement  clearly does not exclude “any purchaser of your Account, and all of their officers, directors, employees, agents and assigns or any and all of them” (page 6 of 8).

 

4) According to the "Agreement" The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), www.adr.org, or JAMS, www.jamsadr.com. Defendant chooses JAMS.

 

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 a 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 a 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 if there is an arbitration clause in the contract, that clause must be honored. Their ruling only allows limited exceptions to the mandate, which they clearly spelled out (Exhibit C, full ruling from The Supreme Court of The United States of America).

--Only limited exceptions to this mandate are permitted.

This case:

-- Is based on a contract with an arbitration clause in it.

-- The bases for the limited exceptions do not exist.

 

7.) Under the Federal Arbitration Act and the Uniform Arbitration Act adopted by Oklahoma, 15 O.S. 1991 §§ 801-818, there is a strong presumption in favor of provisions for arbitration. Thus, the court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), stated that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration."

 

8.) 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.

 

WHEREFORE, pursuant to the above reasons stated, Defendant respectfully requests this Court to enforce the arbitration provision contained in the Agreement, to compel private contractual binding arbitration, and to stay these proceedings pending the outcome of arbitration.

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Thank you, every once in a while I get lucky.....I have always been confused quite a bit myself by the splitting hairs of the 3 vs. 5...so did a little searching for more solid clarity and hit that....

 

That's the first case I've seen that really makes the distinction very clear, it will be nice to have an opinion on the issue, especially when it is one from the OK Supreme Court.

 

I think the OP is leaning real hard towards trying to settle, versus doing arb or fighting in court........personally think that answering the discovery, since it will only be responding under duress of discovery statute's requirement, won't affect a decision on a arb motion and I'd file those first...answers, motion for arb.............THEN I would have quite a bit more "leverage" for a much smaller percentage settlement in any negotiations.

 

Yes I agree, since they didn't bring it up in initial answer they can always claim that they found out about the arb provision researching their answers to plaintiffs discovery, and include it in the motion for arb.....maybe a motion to amend answer and motion for arb.....combine it in one filing....I think that's what you are saying.

 

If the plaintiffs see a real possibility of 2K+ beginning to slip out of their hands they might be more amiable to a lower settlement. I'd start at 10% and make them drag me up inch by inch for any more..........40 or 50% on a 5yr old more than likely out of SOL debt that could possibly be well defended in court seems a little high to me.............that would still leave open the ability to go to court and argue the points and if they don't negotiate a reasonable amount include an argument they failed to negotiate in good faith and JAMS hosted arbitration is the only option for a reasonable settlement.(further arm twisting for a lower settlement here).

 

I wouldn't have the money personally to afford 10%, but if OP feels comfortable and has the ability to pay a 400-800 settlement (I think they will want much more) without causing themselves more financial problems and make it all go away...........why not

 

Knowing LB&N though, I am concerned they may smell blood in water (offer to settle) at this point in the suit and they will stall on any settlement at this point, while working a way to sink the arb option. Right now they are thinking they are in the Cat Bird seat.

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  • 3 months later...

Update: 

 

I went to LBN and gave them the responses to their inquiry stuff, at the end of February; very convoluted with the stuff they need to have, show and prove (THANKS GUYS!). In person. And got them to sign they received it. And recorded the conversation(s).

 

I asked did they have the CC agreement, because the arbitration place wanted a copy of it.

Apparently they requested it a 'while ago' (around December 2014), but haven't yet gotten it; "It can take a while". 

 

I think someone actually showing up in person, asking for stuff and mentioning arbitration made them less than happy :)

 

To date, they have not contacted me (phone or mail) about anything at all. So, I think they have zilch and want to have this thing dismissed based on inactivity and whatever else sounds good (and is probably true).

 

Does anyone know the name of what that would be and have any links/suggestions to the verbiage.

 

I might just get this whole thing taken care of!!!

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Update: 

 

I went to LBN and gave them the responses to their inquiry stuff, at the end of February; very convoluted with the stuff they need to have, show and prove (THANKS GUYS!). In person. And got them to sign they received it. And recorded the conversation(s).

 

I asked did they have the CC agreement, because the arbitration place wanted a copy of it.

Apparently they requested it a 'while ago' (around December 2014), but haven't yet gotten it; "It can take a while". 

 

A copy of the CC...............well seeing as how most CC companies don't retain those even themselves any longer than 6 to 24 months..........................."the little while" could be eternity, yea quite a while. In other words the OC doesn't have it.................and their not going to get what nobody has.........................heck of deal...... :yahoo:  :ROFLMAO2:  :ROFLMAO2:  :yahoo:

 

I think someone actually showing up in person, asking for stuff and mentioning arbitration made them less than happy :-)

 

Yep, one they know your going to fight (fight = cost more money to collect), two they know they can't get a SIGNED C/C agreement, and three their stalling because they can't figure out how to move forward from this point. Heck if they do.........heck if they don't.

 

To date, they have not contacted me (phone or mail) about anything at all. So, I think they have zilch and want to have this thing dismissed based on inactivity and whatever else sounds good (and is probably true).

 

Did they mention anything in this vein at your "recorded converstion"? You could do one of 2 things.............its only been 90 days or so from court, but 6 months from when "they" state they sent for it. You could wait another 30 days or so and file a motion for summary Judgment with dismissal with prejudice as a remedy (which could be appealed) or file a motion for dismissal for lack of prosecution (dismissal on a motion is NOT appealable as it is not a dispositional  action)...depends on how willing this judge is to give them unlimited time to "correct their deficiencies" Some judges are impatient and 90 days or so is too long...others might let it stretch out forever. I am pretty sure that somewhere in statutes that any action not moved upon after 12 months is to be dismissed as a matter of law (doesn't happen very often as most judges don't put that high on their priority list, especially if friendly to the plaintiffs. But upon a motion to dismiss after 12 months for sure, they have little choice to not dismiss, if pushed.

 

Personally I'd either move for motion to dismiss for lack of prosecution OR drag out a copy of the CC (unsigned of course) motion to move forward with the motion to compel arbitration. Push them to ***&* or get off the pott. They've had time enough...............filing without the proper instruments or able to obtain the proper instruments (that they AND the judge knows and has told them they need) is pushing and laying the groundwork for a possible FDCPA violation.....suing on an instrument they don't or can't prove they own..............no standing. False prosecution....................

 

Does anyone know the name of what that would be and have any links/suggestions to the verbiage.

 

I might just get this whole thing taken care of!!!

 

Yes BV80 a motion to dismiss for lack of prosecution or action (refer to statutes for proper verbage under Time Limits for Actions). Think 6 months is long enough to wait???

 

I do, but then maybe the courts are more patient than I............or the OP.................... ::USA::

 

Stating the statute, some case law if any can be drug up on a plaintiffs failure to perform/prosecute the action (wouldn't be necessary that it be a credit card case, just one demonstrating the OK courts procedure on this type inaction), and a statement (written transcript ?/) of your conversation and date of their original request (as per their own statements) and the fact that they have not and appear not to be able to comply with the courts orders and instructions. Then move for dismissal with prejudice.

 

I'm not up real well on FDCPA yet but, suing without the right to do so (no standing) I'm pretty sure is a FDCPA violation.......................I'll let others more familiar with that weigh in on that for sure, but I'd be tempted to present that as a "veiled threat" (NOT one I'd file in State Court, do this in Federal District Court..with aid of a consumer attorney if you can find one not worthless ... check with 2 or 3 on a free consult, just to see if they bite on it before veiling threats)....................just another "costly reason" for them to drop it and walk away clean.

 

Or you could make up and get them to sign a stipulation agreeing to dismissal with prejudice..........which you'd gladly file......just to help them out you know cause your just a nice guy.... :ROFLMAO2:

 

If not then put your shoulder behind the arb motion and push like heck......................

 

Edited to add Definition from USLegal.com:

 

Dismissal for Want of Prosecution (DWOP) Law & Legal Definition

 

 

A case may be dismissed for want of prosecution (DWOP)on failure of any party seeking affirmative relief to appear for any hearing or trial, or failing to take certain specified actions of which the party had notice (judge told them they had to have the CC agreement right?). Once signed, the DWOP dismissal order has the effect of closing the case. It constitutes a final order disposing of all claims. The dismissal for want of prosecution is without prejudice, (but you can always request the judge dismiss WITH prejudice, never hurts to ask, worst thing is judge doesn't do it ) meaning that the case can be refiled and res judicata will not be a viable defense. It is also referred to as a judgment of non-prosecution.

 

Although normally without prejudice it is not likely they would try again................maybe sell it off to another JDB and have it come up later, but by then you might have the statute of limitations on actions on your side Plus if LB&N can't get the agreement and the chain of ownership gets more complicated their odds go down.................

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