Rukini

Served by Barclays (OC)

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I'm being sued by the OC on a "Barclay Card Financing Visa" by a local law firm. The statement of claim includes only this information (along with the statement on jursidiction, which it's in the proper venue):

 

"1. Defendant entered into a credit account agreement with Plantiff.2

2. Defendant breached the credit account agreement by failing to pay as agreed and left an oustanding balance of $2,220 principal.

3. Attached hereto and incorporated herein as Exhibit "A" is a tree and correct copy of the statement showing the amount due and owing.

4. That said claim is in the amount of $2,200 principal, $.00 interest, costs of court, and all future costs of this suit."

 

I have 30 days to file an answer. My understanding that since this is an OC, I literally have no way to fight this beyond finding a technicality. My questions are what's a reasonable court of action from here? Should I rush bankruptcy (I can't afford the lawyer so stalling the case/judgement for as long as possible would be helpful), file an answer, or figure out some way to move this to arbitration?

 

I've tried to find info on the OC suing you, but most everything I can find is about JDBs. Any help would be super thankful.

 

1. Who is the named plaintiff in the suit?

 

Barclay's Bank Deleware

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

McCullogh Payne & Haan

3. How much are you being sued for?

 

$2,200

 

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

 

Served in person, legally.

 

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

 

None.

 

9. What state and county do you live in?

 

Gwinnett, Georgia

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Summer '14

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).

 

Statement of Claim 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 from 12/4

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

 

One statement from April is that was attached.

 

All information in this post in no way asserts responability for any alleged debt.

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I don't know if your cardholder agreement has an arbitration clause - look at the CFPB website to find an agreement and see.

 

If it does, file a motion to compel arbitration.

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Is this in Magistrate or Superior court?

 

Being an OC, I would go with arbitration.  If I recall correctly, Barclays has JAMS in their contract?  For a $2k debt, it is highly unlikely they will actually follow you into arbitration.

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Magistrate. Checked the agreement, it seems to say AAA arbitration only. Is that still as valid as JAMs?

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Magistrate. Checked the agreement, it seems to say AAA arbitration only. Is that still as valid as JAMs?

 

It is as valid but not NEAR as costly as JAMS.  The point to filing in JAMS is that it is so expensive they drop the whole issue.  With JAMS not an option they are likely to follow you into arbitration which is a fast track win for them.  The rules of evidence in arbitration are not near as rigid as court.  

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I would still go with AAA arbitration.  Sure, it doesn't cost them as much as JAMS, but I just finished settling yet another claim in AAA and even though we settled before anything even started (6 days after I filed - no arbitrator was selected yet), the company was still on the hook for $2500 in fees to AAA.  Since the $2500 just to START a claim in AAA is higher than the amount they are seeking from you, I think you have a decent shot at getting them to drop the case.

 

If this were me, I would take that shot. I would play the odds that AAA gives me a better shot at making this go away as opposed to going against an OC in Magistrate, even with the ability to appeal DeNovo to Superior court where my chances of winning would be about the same as Magistrate.

 

Your other option would be to find some counter claims against them and use those.  Counter claims will be a little harder to find against an OC, but you should check into TCPA and TILA violations.  Usually any counter claims in Magistrate will earn a mutual dismissal.  The idea is, they do not like to chance it with an unpredictable Magistrate judge just as much as you don't.

 

@NormInGeorgia has a counter claim template that may have something on it you could use.

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@Rukini   Wow, this is super weird!  I have the EXACT same situation as you.  Everything is identical except my amount is $4000.  

 

Was the process server female?  

Did they leave you ANY other document besides the monthly statement and the Statement of Claim?  

Did they leave you a page that says you were served and by whom?  

Did the monthly statement only show a late payment fee and interest charge?   

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Process server was male. Statement of claim plus just the statement from the chargeoff date. Nothing saying who served me or by whom. Yes it showed late payment and interest. They haven't filed a motion for private process server either.

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This process server thing bothers me because I have never seen one served without the form attached that lists the name and signature of the person who performed service.  I'm going to keep an eye on the court website and see if they file that form this week.  I live fairly close to the courthouse so I will be going there to take a look at what all they actually filed with the court.

 

I have had one case dismissed in the past because of improper service but I was extremely lucky because the process server messed it up so badly.

 

I've never done the AAA arbitration route before but I will have to consider that soon.   Based on what @fisthardcheese stated, it sounds like that might be your best bet to force them to quit the case.   In the meantime I am going to do more research.  I don't think there have been any violations for a counterclaim but I will check it out.

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@Rukini  Do you have a list of phone numbers where Barclays or a third party representing Barclays called you for debt collection purposes?  I am trying to locate numbers on my bill and in my phone memory but having a hard time identifying the right numbers.

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@Rukini  Another question...  Did Barclays or any debt collector working for Barclays send you collection letters?  Did you keep them?

 

I found some debt collection letters sent to me and I think they contain some FDCPA violations that can be used as leverage against Barclays.

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Well the debt collection letters did not have any FDCPA violations after all, so I will forget about that route.

My trial date is tomorrow and I plan to make a motion to compel arbitration per the Barclays credit card agreement document.   Hopefully this will force them to drop or settle the case.   I will let you know how it goes.

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okay so I went to magistrate court tonight.  I will go through the steps I took.  Attached are example documents.


Today before court I mailed the AAA demand for arbitration form and the Credit Card Agreement (got it at the CFPB credit card database online) to  AAA Case Filings Service.      There are  several ways to file it but I chose this one.   Used USPS Priority Express with signature required.  See www.adr.org for getting the form and getting a copy of the entire Consumer Arbitration Rules document.


Here are the AAA rules: https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased

Before court I also mailed the AAA demand for arbitration form and the Cardmember Agreement and the Notice for Arbitration letter to Barclays Bank.

Went to the courthouse in the afternoon and filed the Motion to Compel Arbitration.  I took 1 copy for the clerk and 3 copies for me to all get notorized and stamped.   The 3 copies were for:  me,  the defendant attorney, and the judge (if the clerk failed to put it in the file in time for court that night).   It did make it into the judges file before court time, but you have to prepare for the worst case scenario.

Went home.  Ate a sammich.

Went back to court at 6:30pm.  

Defendant lawyer and I went to hall way.   He did the normal thing where they try to get you to admit it is your credit card and hand you a big stack of every monthly statement and ask if that is your address and did you make these charges.   I did not take the bait.  I told him that what I put in my Answer is true:  I denied the claims because I have no knowledge of this alleged credit account, alleged debt, or the dollar amount specified.

Now for the big reveal !  SURPRISE !   Oh, I looked online and found a copy of the Barclays agreement and saw there was an arbitration clause.  So what I did was elect arbitration, mailed the required documents to Barclays and AAA, so now that means the court will dismiss or stay the case.  Here is YOUR copy of the motion, you can keep that.  BOOM!  hahaha!

He made a feeble effort to still get me to say it was my account but then relented to the fact that I had followed the contract instructions exactly for electing arbitration.   He admitted that the only thing left to do was for the judge to decide to stay or dismiss.  I told him , no problem I will argue to dismiss when you argue to stay.

Then we went to the judge.  The discussion between me, him, and the judge centered around these two phrases in the agreement:

(Make sure you know where stuff is in the agreement and even highlight key items mentioned in your motion it when you file it with the clerk, so it's easier for you to point out to the judge.  She wants to see it in the actual agreement document not just your motion.)

---ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO
LITIGATE THAT CLAIM THROUGH A COURT.

--- 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.

I would have been toast if I had not mailed the stuff to AAA and Barclays earlier in the day.


The judge finally decided just to issue a continuance for one month, set a new court date, and grant my motion to compel arbitration.  


Then I went to the parking lot and did the happy dance because I had jumped the first hurdle in the process of trying to get a good settlement with the bank.  :banana:

 

example MOTION TO COMPEL ARBITRATION barclays bank .pdf

example AAA demand for arbitration form Barclays.pdf

example Notice of arbitration election to barclay bank.pdf

creditcardagreement_12-31-2014 barclay bank.pdf

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1 hour ago, NormInGeorgia said:

okay so I went to magistrate court tonight.  I will go through the steps I took.  Attached are example documents.


Today before court I mailed the AAA demand for arbitration form and the Credit Card Agreement (got it at the CFPB credit card database online) to  AAA Case Filings Service.      There are  several ways to file it but I chose this one.   Used USPS Priority Express with signature required.  See www.adr.org for getting the form and getting a copy of the entire Consumer Arbitration Rules document.


Here are the AAA rules: https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased

Before court I also mailed the AAA demand for arbitration form and the Cardmember Agreement and the Notice for Arbitration letter to Barclays Bank.

Went to the courthouse in the afternoon and filed the Motion to Compel Arbitration.  I took 1 copy for the clerk and 3 copies for me to all get notorized and stamped.   The 3 copies were for:  me,  the defendant attorney, and the judge (if the clerk failed to put it in the file in time for court that night).   It did make it into the judges file before court time, but you have to prepare for the worst case scenario.

Went home.  Ate a sammich.

Went back to court at 6:30pm.  

Defendant lawyer and I went to hall way.   He did the normal thing where they try to get you to admit it is your credit card and hand you a big stack of every monthly statement and ask if that is your address and did you make these charges.   I did not take the bait.  I told him that what I put in my Answer is true:  I denied the claims because I have no knowledge of this alleged credit account, alleged debt, or the dollar amount specified.

Now for the big reveal !  SURPRISE !   Oh, I looked online and found a copy of the Barclays agreement and saw there was an arbitration clause.  So what I did was elect arbitration, mailed the required documents to Barclays and AAA, so now that means the court will dismiss or stay the case.  Here is YOUR copy of the motion, you can keep that.  BOOM!  hahaha!

He made a feeble effort to still get me to say it was my account but then relented to the fact that I had followed the contract instructions exactly for electing arbitration.   He admitted that the only thing left to do was for the judge to decide to stay or dismiss.  I told him , no problem I will argue to dismiss when you argue to stay.

Then we went to the judge.  The discussion between me, him, and the judge centered around these two phrases in the agreement:

(Make sure you know where stuff is in the agreement and even highlight key items mentioned in your motion it when you file it with the clerk, so it's easier for you to point out to the judge.  She wants to see it in the actual agreement document not just your motion.)

---ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO
LITIGATE THAT CLAIM THROUGH A COURT.

--- 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.

I would have been toast if I had not mailed the stuff to AAA and Barclays earlier in the day.


The judge finally decided just to issue a continuance for one month, set a new court date, and grant my motion to compel arbitration.  


Then I went to the parking lot and did the happy dance because I had jumped the first hurdle in the process of trying to get a good settlement with the bank.  :banana:

 

example MOTION TO COMPEL ARBITRATION barclays bank .pdf

example AAA demand for arbitration form Barclays.pdf

example Notice of arbitration election to barclay bank.pdf

creditcardagreement_12-31-2014 barclay bank.pdf

Way to go, Norm!!  Just remember now, you have a court order to arbitrate.  This means when Barclays does not want to pay the arb fees and starts talking settlement, YOU have the leverage in the negotiations and they are coming from the weak side now.  When you are in this position, I would settle for no less than a mutual walk away.  Don't get pressured into making any payments to them!  ;)

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11 hours ago, fisthardcheese said:

Way to go, Norm!!  Just remember now, you have a court order to arbitrate.  This means when Barclays does not want to pay the arb fees and starts talking settlement, YOU have the leverage in the negotiations and they are coming from the weak side now.  When you are in this position, I would settle for no less than a mutual walk away.  Don't get pressured into making any payments to them!  ;)

 

@fisthardcheese  , the only reason I got this far was the good info from you and @Linda7   !!  Thanks!   

Can't wait to see what happens next.  I'm sure I will need more advice soon.   

Would love to get the deal where I end up with  dismissal with prejudice,  no 1099C,  no selling the debt to a JDB, and removal of negative reporting from CRs.

 

 

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6 minutes ago, NormInGeorgia said:

Would love to get the deal where I end up with  dismissal with prejudice,  no 1099C,  no selling the debt to a JDB, and removal of negative reporting from CRs.

You are well on your way there.  In my experience, when they want to push back on this list of settlement demands, I am fully willing to drop the "no selling to a JDB" and "removal from CR" so long as I have a dismissal with prejudice.  This both looks like I am wiling to work with them on a deal, but really, having a court signed DWP actually is all I need because if they do sell it, any JDB coming after me on a DWP case is only giving me $1k bonus checks along the way and I can get things removed from my CR in other ways (either by using the DWP and disputing, or evetually arbitrating with the CRAs if needed). 

Just some things to keep in mind.

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I just received email from the Pro Se Arbitration Administration Team at AAA.   

Attached were an Initiation Letter and an Invoice to Barclays in the amount of $2595.

They default to a Desk Arbitration for any claim under $25,000.  So I have responded and requested Oral Hearing instead and that they change the invoice to reflect that.  It should add another $500 to the invoice for Barclays.

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9 hours ago, NormInGeorgia said:

I just received email from the Pro Se Arbitration Administration Team at AAA.   

Attached were an Initiation Letter and an Invoice to Barclays in the amount of $2595.

They default to a Desk Arbitration for any claim under $25,000.  So I have responded and requested Oral Hearing instead and that they change the invoice to reflect that.  It should add another $500 to the invoice for Barclays.

It should actually add $1250 to their invoice once you request an oral hearing.

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This is the response I got.   Do I need to push back and tell them I expect this will change the initial invoice that must by paid before an arbitrator is appointed?

------------------

From: Pro Se Admin  
Date: Thu, Feb 18, 2016 at 3:43 PM
Subject: RE: N   V. Barclays Bank Delaware 
To: N 
Cc:        @barclaycardus.com  

 
This will acknowledge receipt of your request for an oral hearing in this matter.  Your request will be made part of the record for review by the arbitrator, upon appointment.
 
Thank you
 

----------------------
From: N 
Sent: Wednesday, February 17, 2016 4:06 PM
To: Pro Se Admin
Cc:           @barclaycardus.com
Subject: RE: N   V. Barclays Bank Delaware 
 
Dear Admin:
 
I request an Oral Hearing for this case instead of Desk Arbitration.  Please adjust the invoice as necessary.
 
Thank you.

 

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@NormInGeorgia

That's a new one for me.  I've always had then chance the invoice after my request.  Perhaps your case manager is a friend of Barclays.  According to the AAA rules, there should be an administrative hearing prior to an arbitrator being selected to sort out all the details and schedule before the arbitrator hearing.  If it gets to this stage, that is when I might bring it up and ask why I am only be passed off to the arbitrator instead of guaranteed a phone hearing upon request as stated in the consumer rules.  Perhaps that will force the issue.

If they happen to send the arbitrator strike list without mentioning or scheduling an administrative hearing, then I would request one.  The rules also give you that right to request an administrative hearing before the arbitrator is selected for any clerical type issues.

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I have sent another email to the Admin to get clarification.   I thought they would not do anything at all until that invoice gets paid.  But the invoice needs to be corrected first.  I will let you know what they say.

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