BummedByDebt

Sued by Unifund CCR, LLC in Colorado

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Hello everyone! I am being sued and I got lots of help from this group previously so I was hoping I could do so again. This time its not an OC it is a JDB so I think I have a chance to win.

1. Who is the named plaintiff in the suit?

Unifund CCR, LLC

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

David A. Bauer P.C.

3. How much are you being sued for?

12k plus

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

Citibank I believe as it was a Citicard

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

Served at my workplace.

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

In person.

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

Service seems legal to me.

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

They sent me a letter and I replied with a DV. I believe they sent a few statements from the account and an internal document saying I owed them and that is it. I will find it exactly and post with more detail when I do. I think it took them a few months to send it.

9. What state and county do you live in?

Colorado, Boulder

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

Probably in 2010 but possibly at the beginning of 2011. Not exactly sure so I will try to find out.

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

I am fairly certain Colorado has a 6 year SOL on consumer credit card debt.

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).

I received the Summons and filed an answer.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

I haevn't, is this something I should do?

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.

Yes I sent  DV after their first letter. They replied but it took a few months I believe and they send some copies of account statements an that is it.

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?

I replied already to the Summons deny all allegations brought forth by the Plaintiff.

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

They attached Exhibit "A" with Summons, which was the very last statement from the card showing no payments or charges and an internal screen print of theirs with my info on it. Nothing else.

What is my next move for this, looking forward to pre-trial and figuring out what to request for discovery and interrrogotories?

Any and all help or prior experience with the JDB or attorney would be greatly appreciated!

Thanks all!

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Not sure an Arbitration route is good for this because of amount and local law firm representing the JDB. Would the cost still be prohibitive to collect the amount?

I saw and commented on the CFPB order and think it could be something useful for sure! I plan on reading it in detail and seeing what I can apply.

Anyone have an experience with Colorado money cases? I read the court rules and it is a lot to take in. Looks like here we go to pretrial conference where it is the only place and time or last one to bring up discovery etc? Do I wait for them to make a move or ask for something or do I proactively start asking them for info and such?

How does disputing the original debt and the purchased version of the debt on my credit report help things if it does at all?

Sorry for all the questions an stream thinking but I am trying to figure it all out, thanks everyone for help and comments.

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Unifund or CCR isn't registered with AAA if that's an arb choice in your cardmember agreement, so you'd go with AAA if you decide on arb.

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5 hours ago, CCRP626 said:

Unifund or CCR isn't registered with AAA if that's an arb choice in your cardmember agreement, so you'd go with AAA if you decide on arb.

So if I opted for Arbitration and filed a motion to compel as well as paperwork with AAA would they not be able to go forward? Or they could get registered? I have tried Arb route before and gotten shot down by the judge in another case. Also, if Arbitration ends up happening isn't the "proof" that they will need or the amount of evidence even less than in court? Lastly, is there any nice or legal way to hint or mention that if I lose the case chances are I could likely declare bankruptcy anyways so they may as well drop it?

Thanks for any and all ideas or advice.

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12 hours ago, BummedByDebt said:

Not sure an Arbitration route is good for this because of amount and local law firm representing the JDB. Would the cost still be prohibitive to collect the amount?

I saw and commented on the CFPB order and think it could be something useful for sure! I plan on reading it in detail and seeing what I can apply.

Anyone have an experience with Colorado money cases? I read the court rules and it is a lot to take in. Looks like here we go to pretrial conference where it is the only place and time or last one to bring up discovery etc? Do I wait for them to make a move or ask for something or do I proactively start asking them for info and such?

How does disputing the original debt and the purchased version of the debt on my credit report help things if it does at all?

Sorry for all the questions an stream thinking but I am trying to figure it all out, thanks everyone for help and comments.

I think Arbitration would be your best bet.  Especially if you can do it in JAMS.  Local attorneys usually know squat about Arbitration forums, and it would cost them over 5k just to get started.  AAA would only cost them 1200 to get started, they might bite, at least at first, but there are things you can do to drag it out, and cost them more $.  Jams fees are capped at 250.00 to you, and AA fees at 200.00 to you. But if they do go through with it you would probably have to pay the AAA fees if they win, vs. Jams fees, they just don't get those back.  

The problem is it is for a lot of money.  I don't know if your county has mandatory ARB or not, some counties do, and you do NOT want the court arb. I would file with a motion to dismiss/motion to compel arb.

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12 hours ago, BummedByDebt said:

Not sure an Arbitration route is good for this because of amount and local law firm representing the JDB. Would the cost still be prohibitive to collect the amount?

I saw and commented on the CFPB order and think it could be something useful for sure! I plan on reading it in detail and seeing what I can apply.

Anyone have an experience with Colorado money cases? I read the court rules and it is a lot to take in. Looks like here we go to pretrial conference where it is the only place and time or last one to bring up discovery etc? Do I wait for them to make a move or ask for something or do I proactively start asking them for info and such?

How does disputing the original debt and the purchased version of the debt on my credit report help things if it does at all?

Sorry for all the questions an stream thinking but I am trying to figure it all out, thanks everyone for help and comments.

It would be imperative for you to know the rules in Colorado. There is no discovery unless the amount they are suing for is over the threshold for your court.  I can't remember what the magic number is, but if you want to do any discovery, you have to motion the court for it. They are supposed to send you everything they plan to use against you so many days after you have answered.  What ever they send you in the initial disclosure they cannot supplement without a good reason.   You can ask at the pretrial hearing, or you can file for arb, and let him rule on your motion for arb at the pre trial.

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What happened in the last case for you to get turned down for arb?

They could get registered but like Midland probably won't although Midland has been rejected about six months ago and still isn't registered. It isn't just paying a fee, they have to disclose their procedures. You can see the steps they'd have to take at adr.org.

See if your agreement has detail on the other side paying your fees. Pushing that and asking for a court waiver for any court fees (usually some disclosure of any assets for the Judge) there would show you don't have much to collect if they win.

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I think you should pursue arbitration.  But if you want to go through the regular court process,  you would probably be better off hiring a consumer lawyer rather defending yourself because of the amount of money that is involved.

www.consumeradvocates.org

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On 3/18/2016 at 5:22 AM, CCRP626 said:

Have you looked for your cardmember agreement from when the account went into default for an arbitration clause? You can also find agreements here-

http://www.consumerfinance.gov/credit-cards/agreements/

My last payment was July 2010 and it appears all they sent in their complaint was the last statement issued by Citi in February 2011. I would use these dates to figure out which agreement was in effect at the time right? Are older agreements before 3rd quarter 2011 available somewhere (I couldn't find them after several internet search attempts)? I even downloaded the Q3 2011 agreements from the link you posted before and looked through them but I don't know which agreement is the correct one for Citi, or if it is even in there at all because they are listed as "Agreement 1", "Agreement 2", . . ."Agreement 60" etc.

The current agreement from their website lists AAA and JAMS and the Arb clause seems pretty strong overall.  Only a few things in it I am not sure about the wording on but probably would do if they let me use it. . .

I see the value in Arbitration but the amount is over $12k they are suing for. Will the arbitration costs be enough to scare a JDB away at that amount?

On 3/22/2016 at 4:23 PM, CCRP626 said:

What happened in the last case for you to get turned down for arb?

They could get registered but like Midland probably won't although Midland has been rejected about six months ago and still isn't registered. It isn't just paying a fee, they have to disclose their procedures. You can see the steps they'd have to take at adr.org.

See if your agreement has detail on the other side paying your fees. Pushing that and asking for a court waiver for any court fees (usually some disclosure of any assets for the Judge) there would show you don't have much to collect if they win.

Last time I filed a Motion to Compel for Arb and the judge denied it. He didn't give much of an explanation but the OC's attorney's did fight it and filed something arguing against it and he sided with them. With the wording of the Arb section of the agreement I am not sure how it was even possible but it is what happened. The only thing I could think of is that I filed the Motion to Compel after the pretrial conference so maybe they said it was too late? I objected to it so that I could use it in an appeal and had already filed with JAMS and paid the fee etc.

Where can I see the steps at adr.org? I looked up some of the Consumer Arb stuff but can find what hoops they will have to go through to get registered and such? If you don't already know don't spend too much time on it as with the way it is worded and the way AAA words their rules I might go JAMS so if I lose I don't incur more fees etc.

When I find the agreement in effect (see above to see if you can help with that) then I will check out about other side paying fees.

Thanks for the help all I feel like I am getting somewhere.

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Citi has a lot of agreements but for a certain time period the arb clauses should be standardized. If you're not sure, one thing that has worked is submitting a complaint through the CFPB at their site and Citi will give you the one in effect at the time even if they don't hold the account any longer.

If the Judge turns the MTC down, post back since you only have so much time to counter that.

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Update. I didn't go the arbitration route (because it is over 12k they are asking for and I have had MTC with same judge denied previously) but I have a consumer attorney helping me. We went through court ordered mediation (which is a complete and utter waste of time for these cases) but the JDB Unifund seems to be one that has their stuff together more than most. I was willing to settle for up to 30% but they refused that amount. My attorney is pretty good but he is a busy guy and I know my case well enough to be able to help him, so I am going to try to do so with some help from you guys as well!?

I will attach the redacted pleadings and other documents soon and hopefully some of you on here have some time to help or comment on them. Their original pleadings and evidence are typical trash, but they are attempting now to supplement the reliability of those documents with a "Daniel J Fisher" Affidavit from Citibank.

Any and all help or comments are appreciated and people with Colorado experience are especially sought after!

Documents will be attached and included in a post tomorrow (later today I guess now technically). Thanks all!

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The fact that you hired a consumer attorney, and yet have to come back here to CIC speaks volumes.  Not necessarily about you, but the attorney you hired.

If this were me, I'd save yourself some money and a potential judgment against you, and fire your attorney and file a Motion to Compel Arbitration with JAMS.

This is a citi account which has very permissive & explicit rules for arbitration.  On top of that, you can appeal the first Arb decision by a 3-Judge/Arbitrator panel, which is VERY expensive. Uni$fund will have to spend much more than 12K on the Arb fees alone, not including the Attorney's fees.

If your judge denys your MTC Arb, then you should immediately appeal that decision.  SCOTUS is very clear on honoring Arbitration clauses as they stand.

Here is a 2010 Agreement for Citi

Citi2010_Card_Agreement.pdf

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35 minutes ago, Coffee_before_tea said:

The fact that you hired a consumer attorney, and yet have to come back here to CIC speaks volumes.  Not necessarily about you, but the attorney you hired.

No it doesn't that is your assumption.  Besides the OP was back here 6 hours ago.  Not returning to this forum says NOTHING about the lawyer or the OP.

36 minutes ago, Coffee_before_tea said:

If this were me, I'd save yourself some money and a potential judgment against you, and fire your attorney and file a Motion to Compel Arbitration with JAMS.

Go back and read where the OP clearly states they have had a MTC arb denied by this Judge before.

Looks to me like the OP is handling all of this just fine even if you don't agree.  

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That was a previous case, and we have no idea what was in his MTC, and more importantly he didn't appeal the denial.  Arbitration precedent is well established...especially with the citi agreement, which is arguably the best, most permissive Arb agreement of the CC industry.

On 3/24/2016 at 11:06 AM, BummedByDebt said:

Last time I filed a Motion to Compel for Arb and the judge denied it. He didn't give much of an explanation but the OC's attorney's did fight it and filed something arguing against it and he sided with them. With the wording of the Arb section of the agreement I am not sure how it was even possible but it is what happened.

A high-dollar consumer attorney doesn't have the time for your case, nor, presumably the strategy to prevail.  Then the OP comes back to CIC for advice & help on the pleadings.  This specifically, is the attorney's job, and should have a good grasp on not only providing a good outcome for his client, but also negating the need for his client to seek out assistance from a public forum.  I've dealt with several consumer attorneys, and some need to find another line of work.

 

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It's good the OP is back to update. Too many of these long threads where they just disappear. Not having much detail on why the arb was turned down you could consider an interlocutory appeal but most likely only have 30 days to do so, motion to reconsider is another angle but only if it tolls the clock on the appeal. This case has Citi as the card agreement and you should look at the fine print to see if it says something like can elect arbitration anytime up until final judgment or trial.

Also, if you have another case in the future with the same Judge, just ask for a substitution (check your rules) when you make an appearance if it looks like you'll be doing arb. You may have an anti-arb Judge.

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The OP did not state for how much he was sued in the previous lawsuit.  Citi's has a small claims exclusion in arbitration, so perhaps that's why it was denied.    Or perhaps the judge felt he had gotten too far into litigation.  I'm not sure most judges know enough about private contractual arbitration to be considered anti-arbitration.   The usually prefer to "free up the docket".

In any case, it would appear he's not being sued in small claims this time.   The JDB is going to argue waiver.   It will claim the OP did not raise arbitration as an affirmative defense, participated in mediation, and, depending upon when he was served, waited too long before invoking the right to arbitrate. 

I'm not saying the JDB would be correct, but those are the possible arguments they'll put forth. 

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Waiver in CO  City and County of Denver v. Dist. Court, 939 P. 2d 1353 - Colo: Supreme Court 1997

I would argue that the Citi agreement, where it states:   "At anytime you or we may ask an appropriate court to compel arbitration of claims, or to stay the litigation of claims pending arbitration, even if such claims are part of a lawsuit, unless trial has begun or final judgment has been entered"

That this is a contractual right, to bring or compel arbitration claims, anytime before the trial or final judgment.  Arbitration clauses shall be enforced based on their terms.
Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U., 489 US 468 - Supreme Court

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Thanks for the info all. Lots of good points and things to think about. I can keep the MTC in my back pocket if things don't go my way as that is exactly how I read the Citi agreement previously. My case before WAS in small claims court so that might have been a factor. Further, it was CapOne and the OC suing me through a debt collection attorney.

Before when my MTC was denied, I filed it at the same time as filed my original answer. I was told that maybe I should have filed it BEFORE I filed my answer and that might be partly why it was denied. I ended up going to court on the day of the trial and settling with the attorney for 30% in a payment plan ($50 per month for a little over $300 total, the total debt was a little over 1k).

I didn't get a chance to redact and scan the documents but I will try to get that done tomorrow. I want to win but I want to help others too who are sued by this JDB as I haven't been able to find a ton of content about them on the net through these boards.

Thank you all and either way I will come back to let everyone know how things are progressing through the end, whatever the outcome. Trial date is set for September and we haven't done much yet so I will think about Arb and ask for it before we get going in the process if I decide to go that route.

More to come and thank you all, any and all information and opinions are welcome and appreciated.

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36 minutes ago, BummedByDebt said:

Further, it was CapOne and the OC suing me through a debt collection attorney.

Cap1 removed arbitration after 2008 or 2009, so if you defaulted after that time, that was probably why the motion was denied.

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This case is very similar to mine (almost identical documentation with Uni$und).  If I were to do it again, I would send them to Arbitration (and I won my case in court).  They gave you a gift by providing you the card agreement with the Arb clause.  If it were me I'd file with JAMS & Compel today.

However, if you choose to fight in court, this can be won, but the odds aren't in your favor.  Do you still have an attorney working on this?

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Yes I still have an attorney helping me with it, though he is pretty busy. I have seen the Arbitration option and read on it several times but no nothing about actually going through it. My worry is that if they decide to follow through and complete the Arbitration will my chances be as good to win there as they are in court? Will the same rules of evidence and such apply or are they simply going to ask me "did you make the charges? Do you owe the money?" We did court ordered mediation and the mediator basically wanted us to settle and pretty much assumed I owed the money or made the charges. Unifund wouldn't budge when it came to settlement amounts and I offered them almost 30%.

Also, my attorney (and any I have talked to or seen others tried to talk  to through these forums) doesn't know anything about Arbitration and has never gone through it. Will electing it be enough to scare them away (over 12k is being asked for)? If I could get the case dismissed I think that the SOL would come into play for any future tries (7/2/2010 was last payment).

I am glad someone else has dealt with Unifund and I want to help others through my experiences and documentation to figure out how to fight them most effectively. I should have done a MTD before I filed my answer because they don't give any documentation to start out. At this point if I can get any kind of dismissal so they have to start again I believe that the SOL will then come in to play, am I wrong on that?

Thank you for the reply!

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The rules of evidence are relaxed in Arbitration, you can read the consumer rules for JAMS and it will give you an idea.  In regards to Arbitration you have a few good things going for you:

-  It's a Citi account agreement
- The cost of the JAMS fees for the first round will probably exceed 12K, depending on how many hearings you have. They have additional attorney fees on top of that number.
-  The max cost for you, the consumer is $250 for JAMS fees
- The Citi agreement allows for a 3-panel appeal, which will cost significantly more than 12K.

In regards to fighting this in court.  I don't know the rules in CO, but your attorney is going to have to motion to strike the affidavits as defective and conclusory.  Uni$und will motion for a telephonic witness for trial, and this needs to be objected to.  This means they'll need a live witness to authenticate any records they try to submit into evidence.   

Do you have any counterclaims?

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