Nebraska1234

Nebraska - served with summons and complaint - next steps?

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I was just served this morning with a summons and complaint and need advice on what I need to do next.

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC Assignee of Wells Fargo Bank

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch, Sturm, Israel, Enerson & Hornik LLC

3. How much are you being sued for? $600

4. Who is the original creditor? (if not the Plaintiff) Wells Fargo

5. How do you know you are being sued? (You were served, right?) served

6. How were you served? (Mail, In person, Notice on door) in person

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I don't remember any from Portfolio Recovery but one letter from the law firm

9. What state and county do you live in? Nebraska Lancaster county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Credit Karma says in 2012 but I don't remember making any payments

11. What is the SOL on the debt? To find out: 5 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). There is no case number of court date so I don't think it has been filed

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). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
30 days claiming that I got a credit card and failed to make payments

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Attached nothing

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There is no case number of court date so I don't think it has been filed

There's a summons? Is there any info on who to contact and a date, location matching your county courthouse? Does Nebraska have pocket docket?

 

 

You don't remember the account or making any payments (account stated), that's one area and Portfolio has to prove they're an assignee, has any standing to sue. Their affidavits and witnesses can't speak about someone else's records.

Read through Nebraska civil procedure, there's also case law there-

http://nebraskalegislature.gov/laws/browse-chapters.php?chapter=25

25-301-304 might be worth looking into.

25-1334. Form of affidavits; further testimony.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

 

The key inquiry under this section, insofar as an expert's opinion and foundational evidence is concerned, is whether such evidence would be admissible at trial, and thus, an expert's opinion may meet the requirements of this section. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).

It was error for court to base decision on affidavits when there was no showing that affidavits were made based on affiant's personal knowledge of the facts set forth therein. First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994).

Affidavits in support of or in opposition to a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).

Statements in affidavits as to opinion, belief, or conclusions of law are of no effect. In re Estate of Villwok, 226 Neb. 693, 413 N.W.2d 921 (1987).

Administrative manager held competent to testify by affidavit to matters concerning records over which he was in charge. Kosowski v. City Betterment Corp., 197 Neb. 402, 249 N.W.2d 481 (1977).

Affidavit opposing summary judgment must set forth facts. Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643 (1957).

Under the terms of this section, affidavits offered for the truth of a particular fact (1) shall be made on personal knowledge, (2) shall set forth such facts as would be admissible into evidence, and (3) shall show affirmatively that the affiant is competent to testify to the matters stated therein. Richards v. Meeske, 12 Neb. App. 406, 675 N.W.2d 707 (2004).

Unsworn summaries of facts or arguments and of statements which would be inadmissible in evidence are of no effect in a motion for summary judgment. Kulhanek v. Union Pacific RR. Co., 8 Neb. App. 564, 598 N.W.2d 67 (1999).

To be effective, evidence opposing the rendition of a summary judgment must be made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated therein. Statements in affidavits as to opinion, belief, or conclusions of law are of no effect. Holt Cty. Sch. Dist. No. 0025 v. Dixon, 8 Neb. App. 390, 594 N.W.2d 659 (1999).
 
 
 
Arbitration an option?
 
25-2603. Proceedings to compel or stay arbitration.

(a) On application of a party showing an agreement described in section 25-2602.01 and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order for the moving party, otherwise, the application shall be denied.

b On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

© If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (a) of this section, the application shall be made therein. Otherwise and subject to section 25-2619, such application may be made in any court of competent jurisdiction.

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

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@Nebraska1234

 

See if you can find a cardmember agreement dated during the time the credit card was open.  If the agreement allows for JAMS arbitration, I'd use that as an affirmative defense and then motion to compel arbitration per the agreement.  It would really surprise me if the JDB would arbitrate a claim for $600.00.

 

Read the following thread.

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

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Wells Fargo does have JAMS agreements.  But it looks like you need a refusal.  I would send a letter to the Attorney that says  Dear attorney,   in reference to the case xxxx file in xxxx court against me,  I dispute this account.   I demand private contractual arbitration per the card holder agreement.  Enclosed is the governing agreement with the Arbitration clause highlighted.  I pick the forum to be with JAMS.  Please Initiate this dispute with JAMS, and dismiss the case number xxxx that you have filed against me.  JAMS is the proper forum to settle this dispute.  Thank you, xxxx.

 

Send it CMRRR.  If they have not responded to you by the date you need to file your answer, I would file a PETITION TO COMPEL ARBITRATION, and Motion to dismiss case or in the alternative stay case pending arbitration out come.  In that motion you will include the card agreement, talk about the non response from attorney, taken as a refusal, and a copy of the letter to him.  

 

If you file an answer, you will have to pay filing fees.  If your motion is denied, you will have 10-20 more days to answer. Some states say filing of an answer waives your rights to arbitration, I do not know if that is the case in NE, it looks like not, but it is better to do it from the get go. 

 

You card agreement will have a clause that says they agree to pay arb fees.  So after you do this, I would initiate with JAMS, ask them to accept a 50.00 good faith effort, and that the Plaintiff has agreed to pay your fees per the agreement.  Include the agreement.  If they want the full amount, it will cost you 250.00 to file, and that is your total fees, it is capped for the consumer.  If they fail to arbitrate, you can go back to the court when JAMS dismisses the case for non payment of their fees, and as for a dismissal with prejudice, and ask for your filing with JAMS fees. (if the case was dismissed, you are out the 250.00, unless you sue them)  I very seriously doubt they will follow you into JAMS.

 

Ill post a motion, you would have to add the part about their refusal to arb.

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PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO
DISMISS
OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING
ARBITRATION





NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2015, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(   B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


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 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 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 courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. 

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2015 


(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief. 



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL) 

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to: 

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address 


By: Your name typed, Defendant

Date: __________________, 2015

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IF they are not consumer lawyers, I can almost guarantee you they will suggest you settle.  It would cost more to pay them than what you owe, and they don't have much faith in the pro se defendant to take it to court. If they are consumer lawyers, unless you have a good FDCPA violation, they may advise the same thing, or they may give you some good direction.  If you have an FDCPA or other violation, they may take the case on contingent.

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@nebraska 1234

 

Take the advice of Shellie and BV and file for arbitration.  It's the easiest option.  Most lawyers don't know much about using arbitration in a credit card lawsuit.

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On 7/21/2015 at 2:16 PM, Nebraska1234 said:

I was just served this morning with a summons and complaint and need advice on what I need to do next.

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC Assignee of Wells Fargo Bank

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch, Sturm, Israel, Enerson & Hornik LLC

3. How much are you being sued for? $600

4. Who is the original creditor? (if not the Plaintiff) Wells Fargo

5. How do you know you are being sued? (You were served, right?) served

6. How were you served? (Mail, In person, Notice on door) in person

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I don't remember any from Portfolio Recovery but one letter from the law firm

9. What state and county do you live in? Nebraska Lancaster county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Credit Karma says in 2012 but I don't remember making any payments

11. What is the SOL on the debt? To find out: 5 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). There is no case number of court date so I don't think it has been filed

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). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
30 days claiming that I got a credit card and failed to make payments

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Attached nothing

What did you end up doing? Any feedback or recommendation. I am now going through the same in Douiglas Co. but with US bank CC

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