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When is it too late to request a debt validation?

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I've received several letters from local lawyers saying that I've been listed as a defendant in a case filed by Cavalry SPV I, LLC. I have not yet been served. Is it too late to contact them and request debt validation? If so, what do I do next? Please help! I'm totally clueless and have no idea what to do! 

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Howdy, 

 

If a lawsuit has already been filed, then requesting validation would be a waste of your time.  The first thing to do is verify that a lawsuit has been filed against you.  You can do that by checking with the court clerk's office in your county.  Some places allow you to call them, while others require you to show up in person.  Call them and check to see what they can tell you over the phone.  You will want to know when the case was filed, and keep an eye out for what they claim as far as serving you.  Sometimes, they will claim to the court that you were served when you actually were not.  But before you can go any further, you need to know what you are being sued over.  The court clerk's office is your first step.  Once you get some info on what the deal is, you can post here about it.

 

Wheels up, 

 

Stick

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I've never really been fond of the attorneys who scan the docket and then email defendants looking for a fee, but I'm sure they have good intentions.  You may be interested in calling them and asking them what they charge and what is included.  

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If you would like help to beat Calvary - which is possible because I have done it myself and have seen many here do it - then we need more info to help you.

 

What state are you in, what bank was the alleged credit card originally with, and what is the amount being sued for (you can round, we don't need specific amount)?

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If you would like help to beat Calvary - which is possible because I have done it myself and have seen many here do it - then we need more info to help you.

 

What state are you in, what bank was the alleged credit card originally with, and what is the amount being sued for (you can round, we don't need specific amount)?

I'm in Missouri. I have to call/go to the court clerk's office to see that info, but I'm assuming it was a credit card issued through Target. The amount is around $9,000. 

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I'm in Missouri. I have to call/go to the court clerk's office to see that info, but I'm assuming it was a credit card issued through Target. The amount is around $9,000. 

Ok, actually...I just called the court clerk's office. I have not yet been served but it is showing up in their system that I will be. It is NOT Target, but CareCredit, and the amount is around $3,000. 

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Ok, actually...I just called the court clerk's office. I have not yet been served but it is showing up in their system that I will be. It is NOT Target, but CareCredit, and the amount is around $3,000. 

 

This will work in your favor.  CareCredit is backed by Synchrony Bank.  All Synchrony Bank card agreements have an arbitration clause in them that names JAMS as the arbitration firm.  JAMS would cost CareCredit $5,000 just to START an arb case.  Your potential fee would be capped at $250.   Since arbitration will easily cost them double what they would even win from you, it would mean they lose money either way and usually they decide to give up and just drop the case instead.

 

Now, since they already sued, you must first get the court to order private arbitration per the card agreement.  You do this by filing a Motion to Compel Private Arbitration.  Here is a sample:

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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 ________________, 2014

(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: __________________, 2014

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This will work in your favor.  CareCredit is backed by Synchrony Bank.  All Synchrony Bank card agreements have an arbitration clause in them that names JAMS as the arbitration firm.  JAMS would cost CareCredit $5,000 just to START an arb case.  Your potential fee would be capped at $250.   Since arbitration will easily cost them double what they would even win from you, it would mean they lose money either way and usually they decide to give up and just drop the case instead.

 

Now, since they already sued, you must first get the court to order private arbitration per the card agreement.  You do this by filing a Motion to Compel Private Arbitration.  Here is a sample:

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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 ________________, 2014

(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: __________________, 2014

ReplyQuote

Thank you so much!! I'm a little confused, though...Do I send this to the law firm that is working with Synchrony? Or the Court Clerk? I have not yet been served, so do I have to wait till I've actually been served to send this, or can I do it now?

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Howdy, 

 

First, you need to be served.  Once that happens, you file this motion with the court, and you also send a copy via certified mail to the attorney for the plaintiff.  I am no expert on the laws of even my own state, let alone every state, so I would recommend checking the rules of procedure in your state.  In some states, as I understand, you can file this motion instead of an answer.  In other states, you may have to answer first.  Someone with more smarts than I've got can confirm this.

 

Wheels up, 

 

Stick

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Make sure you change the sample motion to reflect the actual facts of your particular case.  For instance, #2 should be removed if you have not or will not send a letter to the attorney first electing arbitration. (I don't believe this is necessary, others like to do this if it says to in the card agreement).  Also change #4 to quote what your actual Synchrony card agreement says about arbitration.

 

Additionally, I would attach a copy of the card agreement as an exhibit and include a notarized affidavit that swears that the card agreement you have submitted is a true and correct copy to the best of your knowledge.

 

As @stick&rudder said, take this to the court and file it with the clerk AFTER you are served.  I like to take 3 copies for the clerk to stamp.  One copy is for the court to file, another copy I send to their attorney and the 3rd copy I keep for myself as proof that I filed the motion on that day. I never trust the court or the other side to know or have the motion (things get lost) ... so having my own copy stamped by the court will show I did file it if ever needed.

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I can't find my carecredit user agreement anywhere. I just requested the user agreement from my account when I signed up from their website, but it said it could take up to 30 days. That's more time than when I'm supposed to appear in court. If I call, will I get that information faster? Or should I avoid calling at this point?

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https://www.carecredit.com/YourTerms/Aug2014.pdf

 

Page 5 is where it states the arbitration clause. This is from carecredit's site. I signed up in 2012, but this is from 2014... Do you think this will work? Is this what I need to include as exhibit A?

 

Yes, I would print that and use it.

 

Notice that it says if you ask "we WILL pay your arbitration fees".   Also notice it says whoever asks the court for arbitration must initiate.

 

You have plenty of time, don't panic.  First thing I would do is look up your court rules on answering a lawsuit.  Make sure that they allow a motion to be filed in lieu of an answer,.  If yes, then you can proceed with only filing the MTC.  Most courts allow this, you just want to make sure.

 

Next, you need to edit the sample motion I posted to fit your case and your card agreement.

 

After that, I would go to the JAMS website and fill out the demand form:  http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

 

You have the option of sending this to the attorney now with a cover letter that says you are electing arbitration and asking that they forward your consumer filing fee per the card agreement.  You may also choose to send this with a copy of the motion at the same time after you file it with the court.

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Yes, I would print that and use it.

 

Notice that it says if you ask "we WILL pay your arbitration fees".   Also notice it says whoever asks the court for arbitration must initiate.

 

You have plenty of time, don't panic.  First thing I would do is look up your court rules on answering a lawsuit.  Make sure that they allow a motion to be filed in lieu of an answer,.  If yes, then you can proceed with only filing the MTC.  Most courts allow this, you just want to make sure.

 

Next, you need to edit the sample motion I posted to fit your case and your card agreement.

 

After that, I would go to the JAMS website and fill out the demand form:  http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

 

You have the option of sending this to the attorney now with a cover letter that says you are electing arbitration and asking that they forward your consumer filing fee per the card agreement.  You may also choose to send this with a copy of the motion at the same time after you file it with the court.

Thanks! I'm a little confused by the JAMS demand form... The filing fee is $1,200. Do I need to pay that?

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I would take that to mean that they will pay it, so I would contact them through their counsel and request that they abide by their own written agreement and front the costs.  If they refuse to, it might be more ammunition for you to use in court because it would then create a breach of their own contract.  The key phrase is "if you ask", right?  So dont be afraid to ask.

 

Wheels up, 

 

Stick

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@stick&rudder

 

If they refuse to, it might be more ammunition for you to use in court because it would then create a breach of their own contract.

 

 

Probably not.  All the other party has to do is show that the contract was previously breached by the OP.   You can't claim a breach of a contract that you've already breached.

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@stick&rudder

 

 

Probably not.  All the other party has to do is show that the contract was previously breached by the OP.   You can't claim a breach of a contract that you've already breached.

 

 

But this is something that junk buyers like Cavalry are normally not able to do.  They cannot prove that you breached a contract when they have nothing but their own claims and fake affidavits.  It's really of no consequence though, because it goes further than one should have to go in order to get them to fold due to arbitration.

 

Wheels up, 

 

Stick

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But this is something that junk buyers like Cavalry are normally not able to do.  They cannot prove that you breached a contract when they have nothing but their own claims and fake affidavits.  It's really of no consequence though, because it goes further than one should have to go in order to get them to fold due to arbitration.

 

Wheels up, 

 

Stick

How can they not prove it? You really think if I request arbitration that they'll just throw in the towel? 

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@stick&rudder

 

Most JDBs are able to provide at least one credit card statement.  Whether or not the court considers a JDB's documents to be valid is up to the court. 

 

Also, to sue for a breach of contract, both parties must be a party to that contract.

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@gettingoutofdebt

 

 

How can they not prove it? You really think if I request arbitration that they'll just throw in the towel? 

 

Most of the time, JDBs throw in the towel because they don't want to pay for arbitration especially if the debt is a lower amount.  It's just not worth their time and money.

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Thanks! I'm a little confused by the JAMS demand form... The filing fee is $1,200. Do I need to pay that?

 

I would suggest reading the JAMS comprehensive rules of arbitration as well as the Consumer Minimum Standard rules.   They will answer all of your questions about JAMS arbitration, such as the fact when a consumer case is involved, the consumer's fees are capped at $250 and the business must pay the rest.

 

You would have been obligated to pay $250 of that $1200 filing fee.  However, since your card agreement says they will pay all your fees, you don't even have to pay the $250.  They will be on the hook for $1200 right off the bat.  Then, after that they get a bill for a $5,000 retainer before the first hearing is even scheduled.  And it just goes up from there.  This is why no JDBs follow through with arbitration.  They will lose money on the deal even if they win, so it does not work with their business model to participate in arbitration.

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On Thursday, December 31, 2015 at 9:56 PM, fisthardcheese said:

 

I would suggest reading the JAMS comprehensive rules of arbitration as well as the Consumer Minimum Standard rules.   They will answer all of your questions about JAMS arbitration, such as the fact when a consumer case is involved, the consumer's fees are capped at $250 and the business must pay the rest.

 

You would have been obligated to pay $250 of that $1200 filing fee.  However, since your card agreement says they will pay all your fees, you don't even have to pay the $250.  They will be on the hook for $1200 right off the bat.  Then, after that they get a bill for a $5,000 retainer before the first hearing is even scheduled.  And it just goes up from there.  This is why no JDBs follow through with arbitration.  They will lose money on the deal even if they win, so it does not work with their business model to participate in arbitration.

Thanks! I swear before you had included a link with all of that information about the JAMS stuff but I'm not finding it now. Any chance you could reshare it?

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