Jessa519

Sued by Midland Funding in South Carolina - Help!

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1 minute ago, Jessa519 said:

And yes, it would have been on application if they asked for phone number, we don't have a home phone .. so he would have used it. 

No he didn't ! You never prove your enemy's case for them. NEVER ! Lesson 101

Your husband should ask for proof if they ever said he did. "I DON'T RECALL" is a good way to start !

I would never bring up that we have no landlines or other phones, stay mum, it's not your problem , Burden of proof is on the party who is claiming something. They say he did " Show me your evidence"!

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ARBITRATION AGREEMENT: The Arbitration Agreement provided to you with this Agreement governs the enforcement by you and us of your and our legal rights under this Agreement.

ARBITRATION

PLEASE READ THIS PROVISION OF YOUR CARD AGREEMENT CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATEIN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. IN ARBITRATION, YOU MAY CHOOSE TO HAVE A HEARING AND BE REPRESENTED BY COUNSEL.

Agreement to Arbitrate:

You and we agree that either you or we may, without the other’s consent, require that any controversy or dispute between you and us (all of which are called “Claims”),be submitted to mandatory, binding arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement.

Claims Covered:

• Claims subject to arbitration include, but are not limited to, disputes relating to the establishment, terms, treatment, operation, handling, limitations on or termination of your account; any disclosures or other documents or communications relating to your account; any transactions or attempted transactions involving your account, whether authorized or not; billing, billing errors, credit reporting, the posting of transactions, payment or credits, or collections matters relating to your account; services or benefits programs relating to your account, whether or not they are offered, introduced, sold or provided by us; advertisements, promotions, or oral or written statements related to (or preceding the opening of) your account, goods or services financed under your account, or the terms of financing; the application, enforceability or interpretation of this Agreement, including this arbitration provision; and any other matters relating to your account, a prior related account or the resulting relationships between you and us. Any questions about what Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced.

• Claims subject to arbitration include not only Claims made directly by you, but also Claims made by anyone connected with you or claiming through you, such as a co-applicant or authorized user of your account, your agent, representative or heirs, or a trustee in bankruptcy. Similarly, Claims subject to arbitration include not only Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and the employees, officers and directors of all of these entities), but also Claims for which we may be directly or indirectly liable, even if we are not properly named at the time the Claim is made.

• Claims subject to arbitration include Claims based on any theory of law, any contract, statute, regulation, ordinance, tort (including fraud or any intentional tort), common law, constitutional provision, respondeat superior, agency or other doctrine concerning liability for other persons, custom or course of dealing or any other legal or equitable ground (including any claim for injunctive or declaratory relief). Claims subject to arbitration include Claims based on any allegations of fact, including an alleged act, inaction, omission, suppression, representation, statement, obligation, duty, right, condition, status or relationship.

• Claims subject to arbitration include Claims that arose in the past, or arise in the present or future. Claims are subject to arbitration whether they are made independently or with other claims in proceedings involving you, us or others. Claims subject to arbitration include Claims that are made as counterclaims, crossclaims, third-party claims, interpleaders or otherwise, and a party who initiates a proceeding in court may elect arbitration with respect to any Claim(s) advanced in the lawsuit by any other party or parties. Claims subject to arbitration include Claims made as part of a class action or other representative action, and the arbitration of such Claims must proceed on an individual basis.

• If you or we require arbitration of a particular Claim, neither you, we, nor any other person may pursue the Claim in any litigation, whether as a class action, private attorney general action, other representative action or otherwise.

• Claims are not subject to arbitration if they are filed by you or us in a small claims court, so long as the matter remains in such court and advances only an individual claim for relief.

Initiation of Arbitration: The party filing an arbitration must choose an arbitration administrator. Arbitration administrators are independent from us, and you must follow their rules and procedures for initiating and pursuing an arbitration. If you initiate the arbitration, you must also notify us in writing at Credit One Bank, P.O. Box 95516, Las Vegas, NV 89193-5516. If we initiate the arbitration, we will notify you in writing at your then current billing address or (if your account is closed) the last address we have on file for you. Any arbitration hearing that you attend will be held at a place chosen by the arbitrator or arbitration administrator in the same city as the U.S. District Court closest to your billing address, or at some other place to which you and we agree in writing. You may obtain copies of the current rules of the arbitration administrators, and other related materials, including forms and instructions for initiating an arbitration, by contacting the arbitration administrators as follows:

American Arbitration Association JAMS

335 Madison Avenue, Floor 10 1920 Main Street, Suite 300

New York, NY 10017-4605 Irvine, CA 92614-7279

Web Site: www.adr.org Web Site: www.jamsadr.com

Procedures and Law Applicable in Arbitration: A single arbitrator will resolve Claims. The arbitrator will either be a lawyer with at least ten years experience or a retired or former judge. The arbitrator will be selected in accordance with the rules of the arbitration administrator and will be neutral. The arbitration will be conducted under the applicable procedures and rules of the arbitration administrator that are in effect on the date the arbitration is filed unless this arbitration provision is inconsistent with those procedures and rules, in which case this Agreement will prevail. These procedures and rules may limit the amount of discovery available to you or us. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, and will honor claims of privilege recognized at law. The arbitrator will take reasonable steps to protect customer account information and other confidential information, including the use of protective orders to prohibit disclosure outside the arbitration, if requested to do so by you or us. The arbitrator will have the power to award to a party any damages or other relief provided for under applicable law, and will not have the power to award relief to, against, or for the benefit of, any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Upon a request by you or us, the arbitrator will provide a brief statement of the reasons for the award.

Costs: If we file the arbitration, we will pay the initial filing fee. If you file the arbitration, you will pay the initial filing fee, unless you seek and qualify for a fee waiver under the applicable rules of the arbitration administrator. We will reimburse you for the initial filing fee if you paid it and you prevail. If there is a hearing, we will pay any fees of the arbitrator and arbitration administrator for the first day of that hearing. All other fees will be allocated in keeping with the rules of the arbitration administrator and applicable law. However, we will advance or reimburse filing fees and other fees if the arbitration administrator or arbitrator determines there is other good reason for requiring us to do so, or we determine there is good cause for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, except that the arbitrator shall apply any applicable law in determining whether a party should recover any or all expenses from another party.

No Consolidation or Joinder of Parties: All parties to the arbitration must be individually named. Claims by persons other than individually named parties shall not be raised or determined. Notwithstanding anything else that may be in this arbitration provision or Agreement, no class action, private attorney general action or other representative action may be pursued in arbitration, nor may such action be pursued in court if any party has elected arbitration. Unless consented to by all parties to the arbitration, Claims of two or more persons may not be joined, consolidated or otherwise brought together in the same arbitration (unless those persons are applicants, coapplicants or authorized users on a single account and/or related accounts or parties to a single transaction or related transactions); this is so whether or not the Claims (or any interest in the Claims) may have been assigned.

Enforcement, Finality, Appeals: You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if any such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Failure or forbearance to enforce this arbitration provision at any particular time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. Any additional or different agreement between you and us regarding arbitration must be in writing. Within fifteen days after an award by the single arbitrator, any party may appeal the award by requesting in writing a new arbitration before a panel of three neutral arbitrators designated by the same arbitration administrator. The panel will consider all factual and legal issues anew, follow the same rules that apply to a proceeding using a single arbitrator, and make decisions based on the vote of the majority. Costs will be allocated in the same way they are allocated for arbitration before a single arbitrator. An award by a panel, or an award by a single arbitrator after fifteen days has passed, shall be final and binding on the parties, subject to judicial review that may be permitted under the FAA. An award in arbitration will be enforceable as provided by the FAA or other applicable law by any court having jurisdiction. An award in arbitration shall determine the rights and obligations between the named parties only, and only in respect of the Claims in arbitration, and shall not have any bearing on the rights and obligations of any other person, nor on the resolution of any other dispute or controversy.

Severability, Survival: This arbitration provision shall survive: (i) termination or changes in the Agreement, the account and the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer or assignment of your account, or any amounts owed on your account, to any other person. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.

 

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Here is a MTC using Credit One bank's own arbitration clause word for word.

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 ___________, 2015, Plaintiff filed its Complaint against Defendant.

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

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

a) PLEASE READ THIS PROVISION OF YOUR CARD AGREEMENT CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. IN ARBITRATION, YOU MAY CHOOSE TO HAVE A HEARING AND BE REPRESENTED BY COUNSEL.

(b) Agreement to Arbitrate: You and we agree that either you or we may, without the other’s consent, require that any controversy or dispute between you and us (all of which are called “Claims”),be submitted to mandatory, binding arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement.

(c) Claims Covered: • Claims subject to arbitration include, but are not limited to, disputes relating to the establishment, terms, treatment, operation, handling, limitations on or termination of your account; any disclosures or other documents or communications relating to your account; any transactions or attempted transactions involving your account, whether authorized or not; billing, billing errors, credit reporting, the posting of transactions, payment or credits, or collections matters relating to your account; services or benefits programs relating to your account, whether or not they are offered, introduced, sold or provided by us; advertisements, promotions, or oral or written statements related to (or preceding the opening of) your account, goods or services financed under your account, or the terms of financing; the application, enforceability or interpretation of this Agreement, including this arbitration provision; and any other matters relating to your account, a prior related account or the resulting relationships between you and us. Any questions about what Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced.

(d) • Claims subject to arbitration include not only Claims made directly by you, but also Claims made by anyone connected with you or claiming through you, such as a co-applicant or authorized user of your account, your agent, representative or heirs, or a trustee in bankruptcy. Similarly, Claims subject to arbitration include not only Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and the employees, officers and directors of all of these entities), but also Claims for which we may be directly or indirectly liable, even if we are not properly named at the time the Claim is made.

(e) • Claims subject to arbitration include Claims based on any theory of law, any contract, statute, regulation, ordinance, tort (including fraud or any intentional tort), common law, constitutional provision, respondeat superior, agency or other doctrine concerning liability for other persons, custom or course of dealing or any other legal or equitable ground (including any claim for injunctive or declaratory relief). Claims subject to arbitration include Claims based on any allegations of fact, including an alleged act, inaction, omission, suppression, representation, statement, obligation, duty, right, condition, status or relationship.

4. 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”.

5. 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 . . . "

6. The Defendant elects arbitration to settle this dispute in JAMS.


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



Respectfully submitted this day ________________, 2016


(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: __________________, 2016

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@Jessa519

Howucan2 is exactly right about your cell phone number.  The FCC has said that it's the responsibility of the caller to prove they have prior express permission to use an autodialer to call a cell phone.

@howucan2

Considering an MSJ has been filed and a response is required, how would a MTC arbitration affect that?

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I thought the poster has already drafted a response /Objection to MSJ  in one of her links ? No ?

MSJ must be definitely opposed. OP has to write an opposition to it ,  if it was me I'd ask for a continuance to respond to  MSJ.  I don't think any court will deny pro se that !

In my MSJ I would indicate that the Plaintiff omitted the fact that there was a card agreement in place and that agreement has an arbitration clause.


 

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This is their Motion for Summary Judgement (I converted it to words) : Look at how many times it has "Breach of Contract" but yet they failed to provide one. I believe OP can refute this easily.

 

I.             INTRODUCTION  AND FACTS

On or about September 13, 2009, the Defendant entered into a credit agreement with CREDIT ONE BANK, N.A., creating a revolving line of credit on an open account on which the Defendant could make purchases at certain retail establishments. Under the terms of this agreement, the Defendant agreed to pay any purchases charged to said account. The account was subsequently assigned to Plaintiff making Plaintiff the holder of the account. Plaintiff further alleges that the Defendant's account had certain purchases charged to it, and that the Defendant failed to make payments on the account pursuant to the terms of the credit agreement. The Plaintiff has made demand upon the Defendant for the sums due and after such demand the sum of $1,239.23 still remains outstanding. Thereafter, the Plaintiff instituted this collection action for breach of contract to collect the amounts due them.

H. DISCUSSION

In order to recover under a breach of contract cause of action, the Plaintiff must establish three essential elements by the greater weight of the evidence:

1.            That the parties entered into a binding contract;

2.            That the Defendant· breached or unjustifiably failed to perform this contract; and

3.            That the Plaintiff has suffered damage as a direct and proximate result of the breach.

See Tom J Ervin, Ervin's South Carolina Request to Charge/Civil § 22/13, at 181 (1994). 17A Am.Jur.2d Contracts § 716. The Plaintiff offers evidence to meet its burden of proof for each of the aforementioned elements by documentation, affidavit, and the Defendant's admissions. Pursuant to Rule 56(e) of the SCRCP, once a party meets its initial burden of proof, "[the opposing party] may not rely on mere allegations contained in [his/her] pleadings to withstand a Motion for Summary Judgment but must set forth specific facts showing there is a genuine issue for trial." Peterson v. West America Ins. Co., 336 S.C. 89, 518 S.E.2d 608 (Ct. App. 1999).

On September 2, 2015, the Plaintiff served the Defendant with Interrogatories, Requests for Production, and Requests for Admissions as is evidenced by the Certificates of Mailing attached and incorporated herein as Exhibit A. These requests sought either an admission or denial of essential facts and elements that are necessary to establish the liability of the Defendant to the Plaintiff for damages sustained as a result of the Defendant's breach of contract. A copy of the Plaintiffs Requests for Admissions are attached hereto and incorporated herein as Exhibit B.

The Plaintiff s Request for Admissions addressed the following facts and issues:

A.            The existence of the contract between the parties, the essential terms of the contract upon which the Plaintiff relies upon for recovery under its cause of action;

B.            The Defendant's default on one of more terms of the contract and subsequent breach of the contract;

C.            The actions taken by the Plaintiff as a result of the Defendant's default and breach of the contract; and

D.            The direct and consequential damages suffered by the Plaintiff as a result of the Defendant's breach of the contract.

Subsequently, the Defendant responded to Plaintiff's Interrogatories and Requests for Admissions dated October 8, 2015; attached hereto and incorporated herein as Exhibit C. Plaintiff will show that Defendant admits to entering into the agreement, admits to the subject account, and admits to defaulting on the payment as they became due on the subject account. Plaintiff will further show that it has provided ample evidence to its claims and Defendant has failed to provided any evidence to his claims and/or defenses.

In addition to the Plaintiffs Request for Admissions, the Plaintiff includes along with its motion and Memorandum of Law a true and accurate copy of the Affidavit of Account from the Plaintiff, a copy of the Bill of Sale, and a copy of the Charge-off statement attached hereto and incorporated herein as Exhibit D, Exhibit E, and Exhibit F, respectfully. The Plaintiffs affidavit clearly establishes the breach of the agreement in the amount and measures of damages sustained by the Plaintiff as a result of the Defendant's breach. As such there are no material issues of fact and summary judgment is appropriate.

Counsel for the Plaintiff now files this Motion for Summary Judgment alleging that no material issues of fact remain and that summary judgment is appropriate. When no issue of material fact exists, the appropriate action is summary judgment. Midland Mut. Life Ins. Co. v. Harrell, 331 S.C. 394, 397-98 (S.C. App. 1998).

Ill. CONCLUSION

The evidence provided by the Plaintiff in this case has clearly shown that the Defendant entered into the credit agreement with the Plaintiff; that the Defendant defaulted under the terms of said agreement; and that the Plaintiff has been damaged as a result of the Defendant's breach of the agreement. When taken as a whole, no material issue of fact remains to be decided. Thus, when no issue of material fact exists, the appropriate action is summary judgment. Spencer V. Miller, 259 S.C. 453, 192 S.E.2d 863 (1972). Accordingly, the Plaintiff prays that the Court award its summary judgment as to its cause of action  and the relief requested  in its Complaint.

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If you didn't draft an OPPOSITION TO MOTION SUMMARY JUDGEMENT , then it is a MUST.

Here are things to consider 

I.   Jurisdiction -  Court does not have jurisdiction
   
     --  Contract says arbitration; contract wins
     --  Arbitration elected at whim
     --  Laws and Case law
          --- F.A.A.
          --- State arbitration law
          --- ATT Mobility v Concepcion
          --- State case law

II.   Dispute of Material Fact

         --  Business records as hearsay.
         --  Rules of Evidence (Applicable Section)
         --  State case law.

         --- Deception (hiding the contract when the base of the law suit is on its "breach")

 

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@howucan2

 

Quote

Look at how many times it has "Breach of Contract" but yet they failed to provide one. I believe OP can refute this easily.

Contracts can be implied by the actions of the parties, so there doesn't have to be a written contract.   Credit card statements showing charges and payments can evidence an agreement.

"An implied in fact contract is a contract which arises when the assent of the parties to the agreement is manifested by conduct.  Rolandi v. City of Spartanburg, 294 S.C. 161, 164, 363 S.E.2d 385, 386-87 (Ct. App. 1987).

 

Quote

  Business records as hearsay.

We have an AZ version of State v. Parker which allows a third party to authenticate business records.

The OP should, of course, object to everything, but her best bet is to focus on standing to sue since there's no bill of sale from the OC to Sherman (1st JDB).

Standing to sue is a fundamental requirement in instituting an action. Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 639, 528 S.E.2d 647, 649 (1999).


"Generally, a party must be a real party in interest to the litigation to have standing." Hill v. S.C. Dep't of Health & Envtl. Control, 389 S.C. 1, 22, 698 S.E.2d 612, 623 (2010) (internal quotation marks omitted). "A real party in interest for purposes of standing is a party with a real, material, or substantial interest in the outcome of the litigation." Id. (internal quotation marks omitted).

Along that vein, what I'd argue is absent a bill of sale or assignment from Credit One, there is no evidence to show that the credit card statements provided by Plaintiff were created by Credit One Bank.   In it's affidavit, Plaintiff's "Legal Specialist" made no mention of Sherman Originator from whom Plaintiff allegedly acquired the account in question.   There is no explanation offered by Plaintiff indicating the means by which it came into possession of those billing statements.  The "Legal Specialist" does not claim that Sherman Originator acquired the credit card statements from Credit One, nor does she claim that Plaintiff acquired them from Sherman. 

If a witness's testimony conveys information from a person "with knowledge" at the time the records were created, the witness may be deemed qualified to testify despite not being the custodian "at or near the time" the records were made. Twelfth RMA Partners, L.P., 335 S.C. at 642, 518 S.E.2d at 48 (noting this is "a situation expressly allowed under Rule 803(6)").

_____________(the legal specialist) cannot truthfully testify that the records were kept in the regular course of business and that the information conveyed came from a person "with knowledge" at the time the records were kept due to the fact that there is no evidence that Credit One Bank sold any accounts at all to Sherman Originator.

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@BV80

I agree that there are  express or implied contracts.

If they're claiming breach then there was a contract in place, with some sort of terms which was kept in disguise.  what I was referring to was how many times there's an indication of the " contract" or " breach" but nothing attached to show the terms of it being breached.

If they were under account stated I wouldn't agree more but look at how many times that phrase account stated has been used? Zero

Again, under my state law (which is different than SC) the party claiming contract must attach the written agreement or the suit can be dismissed upon asking.

 

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@howucan2

Unfortunately, SC doesn't require the written agreement to be attached.  I understand what you mean, but it might be a problem because the OP admitted to entering into an agreement with the OC.   BUT, I agree with you about "terms".

B.            The Defendant's default on one of more terms of the contract and subsequent breach of the contract;

You're right and good point.  No copy of those terms has been provided.

 

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I would hammer that point in MSJ .

It's a lot easier now that Plaintiff did not provide the contract b/c  there would be material facts in dispute. I see a win here, but Jessa must get busy.

I'd ask for continuance  first, does SC have a specific for asking for continuance? I saw the documents /MSJ had a date of December 14 th. If MSJ hearing was after the tenth day (so odd that no time or room /court is supplied) then MSJ fell on  or a day before Christmas add another few days then Monday after Christmas would be the time of the MSJ. I would check the court filings online (if available) to see any updates.

This kind of notice for motion hearing would not pass muster in my state. Time, date, room, address must be noticed to all.

 

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@howucan2

 

Yes, a motion for a continuance would need to be filed.

The notice states that 10 days after service, the plaintiff would move for an order.  That usually means that it would be filed at that time. 

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@Jessa519

 

In September, the Encore Capital Group (Midland's owner) settled a lawsuit filed against it by the Consumer Financial Protection Bureau.   The Bureau determined that Encore and its subsidiaries engaged in illegal debt collection tactics which included filing lawsuits without proper documentation. 

Here's some interesting excerpts from the Consumer Financial Protection Bureau's Order:

Page 4

10.  "Effective Date" means the date on which this Consent Order is issued.  (Which would be September 3, 2015)

14.  "Encore" means Encore Capital Group, Inc., as well as its current (as of the Effective Date) or former, direct or indirect, affiliates, subsidiaries, parents, divisions, or branches, and all of their successors and assigns, that are directly or indirectly engaged in the purchase, transfer, or collection of U.S. Consumer receivables, including, but not limited to, Midland Funding, LLC, Midland Credit Management, Inc., and Asset Acceptance Capital Corp.

Page 5

16.  "Relevant Time Period" means the period from July 21, 2011 to the Effective Date.

Pages 34-35

PROHIBITION AGAINST THREATENING OR FILING COLLECTION LAWSUITS WITHOUT AN INTENT TO PROVE THE DEBT, IF CONTESTED

     iT IS FURTHER ORDERED that:

131.  Encore, Encore's officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Consent Order, whether acting directly or indirectly, are permanently restrained and prohibited from:

     a.  Initiating a Legal Collection lawsuit unless in possess of the following:

iii.  A certified or otherwise properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive owner, including Encore.   Each of the documents evidencing the transfer of ownership of the Debt must include a specific reference to the particular debt being collected upon;

 

There's no bill of sale from Credit One to Sherman.  Also, motice that very last line.  In order to file a lawsuit, a bill of sale offered into evidence by Midland must include a specific reference to the debt being collected upon.    The bill of sale from Sherman to Midland makes no reference to the account upon which the lawsuit is based.

The CFPB's Order is not law, but it's a settlement upon which Encore, and thereby its subsidiaries, agreed.

http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

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I'd file a short two  line motion right away .

 I Ask for 30 days extension.

DEFENDANT’S MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFF”S MOTION FOR SUMMARY JUDGEMENT

 

                                Defendant (Name) Pro Se respectfully asks the Court for a 30-day extension, until 

(Whatever date) , to file his response to Plaintiff Midland’s Motion for Summary Judgement.

In support of this motion, Defendant states as follows;

1.            Defendant  requires additional time to file his objection on this matter.

WHEREFORE, Defendant respectfully asks for a 30-day extension, until XYZ date, to file his response to

Plaintiff’s Motion for Summary Judgement.

 

                                                                                                                                Respectfully Submitted,

                                                                                                                               Defendant  (Pro Se )

A copy of this motion must be mailed to the otherside upon filing.

 

 

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I just spoke to someone in the clerk of court office, they said the next motion roster will not be created until next week, so I have time to file my Motion for Continuance. 

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1 hour ago, Jessa519 said:

So, step one for me is file a motion for continuance? 

Yes. Like ASAP.

Also include a certificate of service  which tells the court you have served the notice on them.

Here is a sample (if the attorney has a fax number fax a copy to his office for insurance).  Take 3 copies of the Motion for continuance  (one for court, one for them and one for your files) get all stamped.  Make sure to sign the  required documents , in my state a judge can strike the motion if it's not signed.

 

                                                             CERTIFICATE OF SERVICE

Plaintiff’s Attorney ( Name)

Address

Telephone

Fax

 I, (NAME)  a non-attorney, on oath states that on January 7th, 2015, I served the foregoing “Motion for extension of Time” upon the parties listed above by  fax and enclosing copies thereof in envelope, addressed as shown with First Class mail.                                                   

                                                                                         ____________________________  (sign)

                                                                                        Defendant  ( Pro Se) 

                                                                                        Name , address, phone                        

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1 hour ago, Jessa519 said:

 

P.S. - you guys are awesome!! 

;)

Start working on Motion in opposition to their MSJ.

Also make sure to have the MTC ready and have 3 copies of everything made You must get the affidavit notarized  too.

When you have OMSJ  ready come back and post it for review.

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@Jessa519

Those 2 sections are in reference to court-mandated alternative dispute resolution (ADR) (either mediation or arbitration) meaning the court must send it to one or the other.

All civil cases in SC are subject to court-mandated mediation.    However, not all cases are subject to court-mandated arbitration.

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@Jessa519

 

Correct.  If your agreement had stated that disputes MUST be resolved by arbitration only, then that could be considered a form of court-mandated arbitration because the court would have no choice but to order arbitration (assuming arbitration had not been waived).

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