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I'm in Macomb County, Michigan, I'm being sued by Portfolio Recovery for the amount of $716.28. Summons and Complaint was issued 6/2/15. I answered their complaint, I mentioned that their affidavit was made more than ten days before the complaint was filed and I also stated in my Affirmative Defenses that I there is an Arbitration clause in the agreement (that I provided because Portfolio Rec doesn't have it) and that I seek to choose arbitration. 

 

I don't know how much weight Affirmative Defenses hold but the judge seemed to ignore it as it continued on to Pre-trial (Dec.3rd 2015). I then filed a Motion to Dismiss, or in the alternative, stay case and compel arbitration. However, I forgot when the pre-trial date was and submitted the motion only a few days before the pre-trial. The plaintiffs lawyer made very little attempt to negotiate a deal, instead she had a very rude and demeaning attitude, apparently she didn't even know that I filed for the motion (which I did send a copy to the plaintiffs law firm a few days before I even submitted it to the court) and that seemed to have made her angry or something. Nevertheless, at the pre-trial, the judge mentioned that he looked at my motion. The plaintiffs lawyer said that what I (the defendant) was doing is just common tactics to buy time and based on her experience I'm not going to file for arbitration. The judge asked her if she wanted to adjourn and she said no, he then denied the motion saying that we will see if he (The defendant) files for arbitration and if not then it will come back to court.

 

That is where we stand now, the pre-trial was yesterday (Dec.3rd), and I'm pretty confused right now. I didn't expect the judge to dismiss my motion as the combination of their affidavit being expired and the arbitration clause in the agreement basically throws their argument out the window. My main questions and concerns are, how (at this point in the case) do I file for arbitration and who do I notify and how do I notify them? I've read many posts on how to initial arbitration but my situation seems a little different and I want to make sure I'm doing it correctly. Also, my concern is that if the plaintiffs lawyer send a summary disposition at this point, do I have to answer it or does that mean I am forfeiting my right to arbitration? 

 

Any help at all will be greatly appreciated, I'm really a tadpole in a lake when it comes to law, I'm just learning as I go basically.

 

-- Abe

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File for arbitration and paint them into a corner.  Then when PRA doesn't arbitrate demand they pay your fees back to you with a motion to the court for failing to arbitrate.  She called your bluff and now you either answer it or wait for the judgment.

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@FightTheCollectors

 

Note that if you file for arbitration as @Clydesmom has suggested, read the arbitration forum's rules carefully.    Since you don't have a court order compelling arbitration, the rules may require that you send a copy of the agreement to the arbitration forum because it will need to be shown that the agreement contains that forum.

 

What exactly did the judge say was the reason for his denial of your motion?

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@Clydesmom The credit card agreement gives me the option to choose AAA or JAMS to arbitrate, I've been told that JAMS is the more favorable choice for the consumer. The agreement also states that if I act in good faith then I don't have to pay any fees, the fees are to be paid by the other party. I do know that JAMS has a $250 fee to initiate arbitration. I plan to initiate arbitration with JAMS, how long do I have before I can file a motion to the court for failing to arbitrate? assuming that they ignore my initiation to arbitrate for example. 

 

I attached a copy of the credit card agreement (Section 3 arbitration) 

creditcardagreement_6737.pdf

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@BV80 I remember reading that there is a quite a process and some paper work to get the arbitration process going, thanks for pointing that out. From what I know, with JAMS there is a form that I need to fill out and I need to make multiple copies of that and the credit agreement, along with a cover letter. I need to send to JAMS, the plaintiff, as well as notify the court. I think that is how the process goes. 

 

It was really odd, after the plaintiffs lawyer said that I wasn't going to file for arbitration, the judge (I can't remember his exact wording) he asked her twice if she wanted to adjourn, she said no, and then he said he is going to stay the case and in his exact words "we will see if he files for arbitration and if he doesn't then we will come back" at this point he was already signing papers, the plaintiffs lawyer asks the judge "so just for record keeping purposes, are you denying his motion" and the judge replies, "yes, I'm denying his motion" and as he finished that sentence he already handed us the paper to sign. I was pretty shocked that I barely got a chance to even ask why exactly he denied it, he basically denied it and signed it before he even said that he denied it. 

 

What I understood was that, I didn't initiate arbitration or even make an attempt to, I think my mistake was that I should have filed the motion and filed arbitration at the same time. 

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The judge said he was going to Stay the case until you file for Arbitration?   This means the case is placed on hold.  You need to get a copy of the judges order to know for sure.  

 

Although, I'd proceed with JAMS.  File the paperwork according to their consumer rules,  and resubmit your Motion to Compel Arbitration, with the JAMS docs as your exhibit.  Request the court compel arbitration and stay the case until the completion of arbitration.  

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If the judge actually denied your MTC, then I would file with JAMS immediately, then file a motion to reconsider on the MTC.  I would attach the JAMS filing papers to my Motion to Reconsider.

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Is there anyone that can help me find a lawyer that will take my case (hopefully with contingent fees) to fight PRA, as I have found they are responsible for multiple violations. The Consumer Financial Protection Bureau took action against PRA and another collections agency, they prohibited PRA from collecting debts that they cannot prove, filing false or misleading affidavits, and placed a list of criteria that they must meet, mainly providing documentation that can prove the debt, to collect, criteria that they did not meet in my case. They didn't even have the contract, I had to give it to them. 

 

I am located in a city in Macomb County, Michigan. 

 

Link to CFPB document on PRA: http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

 

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Howdy, 

 

First thing I'd do is handle the mess they caused right now.  Then go on the attack.  What's your goal in this?  If you want to just shut them up and make them go away, you can do that in a couple of different ways.  You can file the arbitration and provide proof to the court with a motion to reconsider.  Or, you could amend your answer and include a counter claim for their violations.  But that's a gamble.  How solidly can you prove the violations?  That is the question.  I would be more comfortable personally with arbitration.  I would finish their case first, call their lawyer's bluff.  Then, you can always go after them for their violations at a later time.  Be careful here, if you intend to pursue arbitration, you should not try to litigate any issue in this case at this time in that court.  

 

I would file the arbitration.  They most likely would not follow you into arbitration for such a small amount.

 

Wheels up, 

 

Stick

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@stick&rudder Well, it started out with me just wanting them to leave me alone but I started losing faith in my ability to do that as I've noticed this judge tends to sway towards PRA's side. (My brother also defended himself in a lengthy trial and the judge sided with PRA, Although he did not play the arbitration card when he had the chance.) PRA's attorneys filed a Motion for Summary Disposition on December 14th with a hearing scheduled for a proposed date of January 28th. Do I have to answer this Summary Disposition or can I ignore it as long as I file for arbitration and file the motion to reconsider?

 

Thanks for the advice Stick, it is much appreciated

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@stick&rudder Well, it started out with me just wanting them to leave me alone but I started losing faith in my ability to do that as I've noticed this judge tends to sway towards PRA's side. (My brother also defended himself in a lengthy trial and the judge sided with PRA, Although he did not play the arbitration card when he had the chance.) PRA's attorneys filed a Motion for Summary Disposition on December 14th with a hearing scheduled for a proposed date of January 28th. Do I have to answer this Summary Disposition or can I ignore it as long as I file for arbitration and file the motion to reconsider?

 

Thanks for the advice Stick, it is much appreciated

 

NEVER ignore anything from the court.  That is the fastest way to lose your case.

 

You can go to www.consumeradvocates.org and find a consumer attorney in your area.  Most if not all will do the first consultation for free and if you do have solid violations will likely take the case on contingency.  

 

The motion for summary disposition needs to have an opposition filed to it.  There is also the motion to compel arbitration you need to file if you are going to go that route.

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For $716.....the only way an attorney will handle this is if there is a FDCPA countersuit. If not, it will cost you much more than the $716 you owe to hire an attorney.

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I NEED AN URGENT RESPONSE TO THIS PLEASE**

I haven't posted in a while but true to my name, I was still fighting. I answered their Motion for Summary Disposition, filed for arbitration with JAMS, and refiled a motion to dismiss or stay the case and compel arbitration. The January 28th hearing was postponed until feb 25th because I filed the responses too close to the date for the Judge to look at everything. Shortly after, PRA's attorneys at weber olcese were calling me, left several messages, I ignored them. I got contacted by JAMS, they approved my demand for arbitration and also my request that PRA pay for all the costs including my $250 filing fee. February 15th I got a letter from Weber Olcese stating that they filed a response to my motion to compel arbitration, mainly arguing that I couldn't file for arbitration because i didn't do it correctly and it was untimely. They completely ignored the 60 page Consent Order (that i included in my response)  from the Consumer Financial Protection Bureau stating a multitude of violations committed by PRA, including false and misleading affidavits and starting lawsuits with no intention to go through with it.  They also filed a response to my response to their motion for summary disposition. Now, 3 days later on feb 18th, they sent me a document titled Consent Order For Dismissal. I just received this document today in the mail, they want me to sign it and  fax it to them no later that Feb 23rd. It seems pretty straight forward, that they want to dismiss the case "without prejudice and without costs to either party." 

I want to run this by everyone just to make sure I'm not missing anything. Is this normal? The hearing is on feb 25th, I plan to still go to the court as I don't trust these people, they lied several times already. 

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1 hour ago, FightTheCollectors said:

I'm concerned about the "without prejudice" part as I'm afraid they will bring the case up again.

I doubt they bring it up again.  You already cost them WAY more than that $716 and PRA is about the quick easy default judgment.  Simply filing motions showing you will fight told them it isn't worth the time to pursue it.  My guess is they disappear.

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I would tell them with prejudice or no deal.  That way when you dispute it with the CRA's, they will half to take it off your reports

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12 hours ago, FightTheCollectors said:

I'm concerned about the "without prejudice" part as I'm afraid they will bring the case up again. I don't think they will though. 

for $716 sounds ridiculous that they would pursue this at another time.

 

12 hours ago, FightTheCollectors said:

I got contacted by JAMS, they approved my demand for arbitration and also my request that PRA pay for all the costs including my $250 filing fee.

Can't do both at the same time. Are you sure you're not headed to arbitration?

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I would tell them I agree to a dismissal WITH prejudice.  However, if they really fight this, I will give in and agree to dismissal without prejudice.  Even if they tried to file again, it will be an instant FDCPA violation and a Motion to Dismiss for improper venue should be granted because you have now already filed a case in arbitration.  Anything they do outside arbitration from here on out is a violation of federal law (once the pending case is dismissed).

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6 minutes ago, fisthardcheese said:

I would tell them I agree to a dismissal WITH prejudice.  However, if they really fight this, I will give in and agree to dismissal without prejudice.  Even if they tried to file again, it will be an instant FDCPA violation and a Motion to Dismiss for improper venue should be granted because you have now already filed a case in arbitration.  Anything they do outside arbitration from here on out is a violation of federal law (once the pending case is dismissed).

Dismissal with prejudice operates as adjudication on the merits. Even dummies like PRA know that if they dismiss with prejudice, then continue to pursue collection through any other means, including arbitration, they're violating FDCPA. Can't arbitrate after claim has been extinguished by dismissal with prejudice.

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17 hours ago, FightTheCollectors said:

I NEED AN URGENT RESPONSE TO THIS PLEASE**

I haven't posted in a while but true to my name, I was still fighting. I answered their Motion for Summary Disposition, filed for arbitration with JAMS, and refiled a motion to dismiss or stay the case and compel arbitration. The January 28th hearing was postponed until feb 25th because I filed the responses too close to the date for the Judge to look at everything. Shortly after, PRA's attorneys at weber olcese were calling me, left several messages, I ignored them. I got contacted by JAMS, they approved my demand for arbitration and also my request that PRA pay for all the costs including my $250 filing fee. February 15th I got a letter from Weber Olcese stating that they filed a response to my motion to compel arbitration, mainly arguing that I couldn't file for arbitration because i didn't do it correctly and it was untimely. They completely ignored the 60 page Consent Order (that i included in my response)  from the Consumer Financial Protection Bureau stating a multitude of violations committed by PRA, including false and misleading affidavits and starting lawsuits with no intention to go through with it.  They also filed a response to my response to their motion for summary disposition. Now, 3 days later on feb 18th, they sent me a document titled Consent Order For Dismissal. I just received this document today in the mail, they want me to sign it and  fax it to them no later that Feb 23rd. It seems pretty straight forward, that they want to dismiss the case "without prejudice and without costs to either party." 

I want to run this by everyone just to make sure I'm not missing anything. Is this normal? The hearing is on feb 25th, I plan to still go to the court as I don't trust these people, they lied several times already. 

Couple of thoughts,

First, I'm pretty sure they did not ignore the 60 page consent order from the CFPB, that is why they sent you a mutual dismissal consent order.  They will talk tough, claim that you have no right to do what you have done, that it is untimely, that it will not work, and lots of other things.  And then, they ask you to agree to dismissal without prejudice.  If all their claims about how you were untimely and everything else were as solid as they try to tell you they are, then they would not have followed this with a consent order three days later.

It's difficult for us to know what to say about their proposed consent order because we do not know exactly what it says.  Since you have to respond by today with it, maybe you can post it up and let us know how they worded it?  Does it have any other statements or conditions aside from "without prejudice and without costs to either party"?  My thought on this without knowing exactly what it says is that PRA will not do you any favors in this.  If they are trying to get the case dismissed, it is for their own benefit.  But I am curious, seems to me that if they wanted their own claim dismissed, all they would have to do is voluntarily dismiss without prejudice at plaintiff's cost.  You have no attorney, it's not like you racked up a huge bill in the process of defending their lawsuit, right?  the only benefit I can see for them to use this consent order is that you would be liable for all the costs you incurred in filing motions.  Their decision to dismiss in court has no bearing on the arbitration costs either.  I would consider following what others here have said, and counter their offer with an offer that they dismiss with prejudice, at THEIR cost, and if they agree to do so, you will not file suit against them for the multitude of violations that you both know they have committed.  There comes a point in time in this process where bottom feeding JDBs like PRA try to get out from under this mess as cheaply as possible, and it's worth a shot IMHO that they might change to "with prejudice" to prevent being sued for violations. 

One more thought, keep the records of all of this stuff in a safe place.  If PRA ever tries to come after this debt again, you will have a lot of useful evidence to show their violations. 

Wheels up,

Stick

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