Going to battle with Midland in AZ

[craneguy]

Thanks for all your help. My 20th day is tomorrow so is it ok to send midlands attorney the letter to arbitrate and file my answer in same day. Or would i be better off just filing the asnswer denying the claim for lack of a contract to prove anything. Getting bervous that if i admit to debt and elect arb. If the court denies it im screwed.

[craneguy]

If the judge denies arbitration and proceeds to pre trial am i still able to argue the case the other way.

[Goody_Ouchless]

I would put something in the answer that matches Harry's verbiage. There are multiple recent stories online where the plaintiff's #1 weapon to derail arbitration is arguing that litigation has taken place. You are admitting nothing using Harry's verbiage.

 

Unless you are going to take the stand and claim identity theft, everyone in the court room already knows it's your debt. Don't take your eye off the ball.

[craneguy]

Chase dropped arbitration in first quarter of 2010 when the alleged default was. Dont think arbitration is going to work anymore. There is no arbitration clause in any cc agreement i looked at

[craneguy]

I also still have bankruptcy in my back pocket. I will probably have 3 or 4 of these coming down the road. Should i just file the answer denying the debt so i can buy some time to file the bk. If i lose this case it will become a secured debt which they have more rights in bk.

[Harry Seaward]

Thanks for all your help. My 20th day is tomorrow so is it ok to send midlands attorney the letter to arbitrate and file my answer in same day. Or would i be better off just filing the asnswer denying the claim for lack of a contract to prove anything. Getting bervous that if i admit to debt and elect arb. If the court denies it im screwed.

Yes,  mail the letter tomorrow before you file your answer. 

[Harry Seaward]

Chase dropped arbitration in first quarter of 2010 when the alleged default was. Dont think arbitration is going to work anymore. There is no arbitration clause in any cc agreement i looked at.

 

 

I'm pretty sure I have a Chase agreement with an arb clause circa 2005-2007.

 

If you opened the account under an agreement with an arb clause they have to argue the agreement was amended and that you received a copy of the updated agreement and used the account under the new agreement. 

[Harry Seaward]

The Chase agreement I have is dated 2002.  Any chance you had the account that long ago?

[craneguy]

No if a had it would only have been from around 2008 at earliest

[Goody_Ouchless]

Add the arb election to the answer anyway - make them prove that it's not there.

[BV80]

@Harry Seaward

 

The agreement almost always says that once arbitration is elected, neither party has the right to litigate in a court of law.  If it's a JDB, you probably have a claim for them trying to take action they are not legally entitled to.

 

 

I've seen this claim made over the years, but to date, there's no court precedent to support it.   I can see the possibility in support of it, but I can also see the invalidity of the claim.

[BV80]

@Goody_Ouchless

 

 

Add the arb election to the answer anyway - make them prove that it's not there.

 

I agree with arbitration election anyway, but unless the JDB has nothing or simply chooses not to argue, they'll provide an agreement.   This could depend upon the date of default.   The OP provided the date of last payment, but when did the OP default and never again bring the account current?

[Goody_Ouchless]

As Harry has pointed out (and I have discovered), so much of this can come down to luck. The sight of an arb claim, combined with the plaintiff's case load, may be enough for them to drop the matter.

[BV80]

@Goody_Ouchless

 

 

As Harry has pointed out (and I have discovered), so much of this can come down to luck. The sight of an arb claim, combined with the plaintiff's case load, may be enough for them to drop the matter.

 

I agree that this can come down to luck.  However, one should not depend on luck.  If one truly wants the matter submitted to arbitration, he should also be prepared just in case he isn't so lucky.  

[Harry Seaward]

I'm all for being prepared,  but I say fire the first shot as a demand for arbitration.  I can't think of a downside in this case. 

[Coffee_before_tea]

@craneguy

 

Just to clarify, you opened the account after 2008?  What date was the account opened approximately.?

[Coffee_before_tea]

@craneguy

 

Here is a Chase 2008 agreement, it has AAA available.  

 

http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2008-Chase-Agreement-with-AAA.pdf

 

I also have a 2007 agreement that you can use, although it depends on when you opened the account.  Hope this helps.

[cwrose79]

Hi Craneguy- 

 

Just checking in to see how your case is going.  Any updates after turning in your Answer?

[saytar]

The motion to compel is a separate filing. But there is a problem. Earlier I said to file the motion to compel with your answer and in accordance with ARS §12-1502, but I read this statute closer and the problem is that it requires 1.) the party filing the motion to show the agreement and, 2.) the other party's refusal to arbitrate. Right now you have neither of these things. I'm now thinking you should send Midland's lawyers a letter via certified mail notifying them that you want to arbitrate, and then attach a copy of that letter to your answer. When they ignore your letter, you then have one of the two required components for a motion to compel. When they produce the agreement, you'll then have both components and at that point is when you would file the motion to compel.  (I.e. file your answer now and the motion to compel later.)

 

Unless you have a copy of the agreement that you received from the OC when you opened your account, don't attach any agreements.

 

Something like this in the "denies jurisdiction" part of your answer should do: "Plaintiff has not produced a contract upon which it believes it's lawsuit is based.  However, upon information and belief, Defendant asserts the contract governing the debt in question provides that any dispute may be resolved via private, contractual arbitration.  Defendant has notified Plaintiff that he elects said arbitration to resolve any and all claims Plaintiff has alleged against him and as such, this court has no jurisdiction over the subject matter of this lawsuit.  As of the filing of this pleading, Plaintiff has not responded to Defendant's notice of arbitration election."

 

So at that point they should be forced to produce a contract because they shouldn't be allowed to continue the lawsuit without it.

I know this might be late to the party.......but.....

 

Except they will dodge the agreement......and fall back on the "old" "account stated theorem".

 

I'm with @fisthardcheese on this........."I would choose the agreement closest to the time they alleged I defaulted on the account they filed suit on. I would then use this agreement to compel arbitration based upon my "information and belief" that this is the correct agreement on which suit was filed against me.  My information and belief would be based upon the information provided in their complaint, any exhibits in their suit and the information from the CFPB website.  I am not acknoledging that this is my account.  I am acknowledging that a suit was filed against me and from what I can tell, this is the underlying agreement the suit is based upon..............."

 

I'd put this forward for consideration............OR do it in separate motions, just file them at the same time.

 

SWORN DENIAL AND MOTION TO COMPEL CONTRACTUAL ARBITRATION

 

I deny that this is my debt and if it is my debt, I deny that it is still valid debt and if it is a valid debt, I deny the amount sued for in the amount of $_________  principal, $_________ as interest including attorney fees is the correct amount.

 

Further, Defendant elects private contractual arbitration which is included in the attached credit agreement provided to the Consumer Financial Protection Bureau by the Original Creditor from whom the Plaintiff claims to have purchased or acquired the debt instrument. A copy of this agreement is attached to this motion as Exhibit A, therefore Unless plaintiffs can refute this agreement by producing the actual credit card agreement, signed by the defendant the agreement so attached should be considered the controlling agreement as is indicated by it's inclusion and filed with the CFPB a government agency by the Original Creditor and downloaded by the Defendant from that official government site.

 

START:

 

Include your argument for Arbitration in here, just as you would for normally.

 

END:

I,  Broken Down Debtor, being duly sworn, or having duly affirmed to tell the truth, stated personally

before me that they are competent under the law to give this affidavit and unless stated have

personal knowledge of the facts stated herein and written statements herein are true and accurate

to the best of my knowledge.:

 

 

CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing SWORN DENIAL AND MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION upon counsel for all parties, by depositing a copy of same in the United States mail in an envelope with sufficient postage thereon addressed as follows:

 

This _____ day of _________ 20__.

_____________ (your name)

_______________________________________________

Defendant

Address:

Telephone: (___) ___-____

 

Sworn and subscribed before me this ____ day of _______ 20__.

__________________________________

Notary Public, State of _________

 

 

 

Just saying.....................

[craneguy]

Update

This is a very slow process i guess. Turned in my answer. And was told to wait for a court date in the mail. Been a few months and nothing yet. Midland sent me a packet full of credit card statements, its just the front page with balance on all of them.

[Coffee_before_tea]

@craneguy

 

What did your answer contain?  Are you going to Arbitration route?

[debtzapper]

I hope you are going the arb route.  It is the only way you stand a chance in AZ.  Or maybe alleging identity theft, and you didn't do that.

[craneguy]

Im going to try i might have messed up. My answer basically denied their claim because they provided nothing to prove the debt. But i pulled a 2007 chase cc agreement and there is arbitration election through aaa. I was going to elect arbitration at the pretrial conference. But i saw i should have mailed my request to them no more than 21 days after i filed my answer. Plaintiff has served me disclosure in mail.

[craneguy]

In my answer i did elect arbitration if it was proven to be my account and there was a clause for that in the cc agreement.

[shellieh98]

You better get on it.  I think it may be to late if disclosure was sent, but you could motion to compel Arbitration, pointing out you did elect it in your answer.  Worth a shot.