stefeni074

Jefferson Capital Metabank Fingerhut Arbitration Arizona

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I have previously posted on two other cases in litigation electing arbitration.  I have been served with a new case involving Jefferson Capital with the OC as Metabank (Fingerhut, but doesn't list Fingerhut in the complaint).  My question is I am wondering which card agreement I should use to elect arbitration.  I can't find the Metabank agreement that was opened in September 2011.  I do have the agreement that took over the account which is Webbank in 2012. The complaint list the account ending in 8705 which is the Webbank account number that was changed in 2014 from the original account ending in 4409. My previous cases I used the last agreement on the account but I am not sure which I should use for this one. The Webbank Fingerhut agreement arbitration clause is with AAA.  I have until May 11 to file my MTD or Alt MTC.  I can upload docs if needed.  Thank you 

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If you have the agreement that matches the account number they are suing you on, that's going to give you the least amount of grief as far as getting your MTC granted.  It doesn't really matter that it's AAA. Unless it's a huge debt, I doubt they will follow you into arbitration regardless of the arbitration company. 

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I am really uncertain how to word my response since the complaint does not list Webbank or Fingerhut.  The chain of ownership would be Metabank then Webbank.  The complaint states that defendant entered into a contract  XXXX with Metabank which was subsequently assigned to Jefferson Capital.  I have looked online but could not find a Metabank Fingerhut agreement. I only found the agreement for Webbank. Should I list both Metabank and Webbank in my MTD/MTC then use the Webbank agreement. 

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So the complaint says the OC is Metabank but identifies an account number that was never a Metabank account number?

I'd like to know how they plan to close that loop without having alleged it in the complaint.

Perhaps you should Motion for a More Definitive Statement instead of an Answer. 

 

Quote

(3) A motion for a more definite statement. This motion must allege that the complaint is unclear. A motion for a more definite statement must point out the defects that make the complaint unclear, and the types of details that should have been provided.

Rule 116, JCRCP 

 

"Plaintiff has alleged the OC is Metabank and has alleged an account number associated with a Webbank account. Plaintiff's complaint makes no attempt to link these two entities."

Something like that will hopefully force them to acknowledge Webbank, at which point you can then use your agreement to compel arbitration. 

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Yes, the complaint is for account ending 8705 with the OC as Metabank.  I opened the account in 2011 at that time the account was with Metabank but with a number ending in 4409.  July 2012 Webbank took transfered/bought Metabank's accounts and sometime around April 2014 the account number was changed to 8705, I am not sure why or I can't remember why it had changed.  My last payment was March 2014. 

Thank you for that Motion for a more definite statement.  I was on a one track of MTD and MTC argument.  Would I need to add any other information.. I am uploading the complaint fyi

complaint JCS.pdf

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They had filed this in October, but had not served me within the 90 days, I was not home during the time they came.  They made a motion to serve me by leaving it at the door, by certified mail and regular mail.  They had left it at my door 2 days before the end of the next 90 days on April 21.  They did not mail it certified or regular, they had also left off the complaint which I had just uploaded, they left only the order saying they could leave it at the door and the summons (2 copies) but not the complaint.  I had to go to the court clerks and request the complaint and had the clerk stamp it that I received it on that day.  

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I'm guessing if you question it, at this stage they won't even know the account made a stop at Webbank before they got it.  So I'm now thinking I would probably forget my suggestion of the motion for more definitive statement and just file the answer and MTC with an affidavit that account # 8705 was a Webbank account #, and Webbank acquired the account from Metabank and this is why your Webbank agreement is the correct agreement for the account.  If they successfully deny Webbank owned the account, it will all come out in the discovery wash when the only statements with account # 8705 will have Webbank on them.  At that point you can move to dismiss on the grounds that Plaintiff committed fraud on the court.  If that doesn't work you can renew your motion to compel arbitration.

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So I should file an Answer and not try for the MTD or Alternative MTC Arbitration. I have an affidavit that I have written.. it does state the changing ownership and time line of the account.  I'll upload it.. maybe it's too much information?  Or gives Jefferson the time line for their documents to match.. 

State of Arizona Affidavit Webbank_Redacted.pdf

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2 hours ago, BV80 said:

@Harry Seaward

How would it be fraud upon the court?

 

http://legal-dictionary.thefreedictionary.com/fraud

The material fact here is that the account was a Webbank account at one point.  Jefferson denying this to persuade the court to deny a MTC would be fraudulent.

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1 hour ago, stefeni074 said:

So I should file an Answer and not try for the MTD or Alternative MTC Arbitration. I have an affidavit that I have written.. it does state the changing ownership and time line of the account.  I'll upload it.. maybe it's too much information?  Or gives Jefferson the time line for their documents to match.. 

State of Arizona Affidavit Webbank_Redacted.pdf

I would file an answer and MTC.  MTD is optional.  Just be sure your MTC cites A.R.S. 12-1502 and clearly states your intent to have the parties ordered into private contractual arbitration.

In paragraph #2 of your affidavit, I would work in an express assertion that the agreement was presented to you specifically for account # 8705.

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52 minutes ago, Harry Seaward said:

http://legal-dictionary.thefreedictionary.com/fraud

The material fact here is that the account was a Webbank account at one point.  Jefferson denying this to persuade the court to deny a MTC would be fraudulent.

I see what you mean.

I don't see how the JDB could deny WebBank if the account was still in good standing when that bank took over the account.  The only way the JDB could prove the amount they've claimed in the complaint would be to provide statements, and those statements would more than likely have been generated by WebBank.

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16 hours ago, BV80 said:

I see what you mean.

I don't see how the JDB could deny WebBank if the account was still in good standing when that bank took over the account.  The only way the JDB could prove the amount they've claimed in the complaint would be to provide statements, and those statements would more than likely have been generated by WebBank.

Since they don't order up any of the evidence on these debts until it appears there is going to be a fight, as of right now Jefferson could easily not have anything in its possession showing the debt ever made a stop at Webbank.  I'm with you in that I don't see how they could (successfully) deny Webbank owned the account, but if they draft their opposition to MTC in their current state of information, I definitely see how they would try. 

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Maybe I am wrong.. which is likely.. but if I submit an Answer to the complaint, wouldn't that be participating in the litigation and give up my right to elect arbitration.  I thought I had heard of that argument not long ago.  I just want to be clear that I want to have the dispute in arbitration.. By submitting a MTD and MTC at the same time, the MTD is acceptable under Rule 116 in responding to a complaint. (i) A motion to dismiss for lack of jurisdiction (“jurisdiction”) is the authority of the court over the subject matter of the lawsuit and over a defendant).  I did find the letter sent by Fingerhut stating the account number change on May 12, 2014, that clearly states it is a Webbank account.  The online agreement link from Fingerhut website is the same pdf document that I have in my affidavit. 

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3 hours ago, stefeni074 said:

if I submit an Answer to the complaint, wouldn't that be participating in the litigation and give up my right to elect arbitration.

An answer is not sufficient to waive your right to arbitration. Additionally,  not filing an answer gives Midland the option of voluntarily dismissing without prejudice.

I think @BV80 found some other reason it was a bad idea to not file an answer.

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In my opinion, there isn't a good enough reason to file an answer, when a MTD and MTC can be submitted in lieu of.

AZ courts are the most bizarre courts I've observed.  You want to remove yourself from their jurisdiction as quickly as possible.  Besides, if you file an answer, you can guarantee the JDB/Attorney will file for Summary Judgment or some other motion to confuse, obscure and mislead the court, even if you have a MTC Arb that is granted.

I would also request the court for some, or all of the following:

-  Dismiss the case without prejudice and compel private arbitration
-  Or, Stay the case until Arbitration has been COMPLETED.  There is no reason for status hearings or pre-trial conferences until Arbitration is completed.  The next thing the court will receive from you or the JDB is a motion to confirm the arbitration award.
-  Request the court to not schedule pre-trial conferences, as they do not have jurisdiction once arbitration is granted.  This does nothing but waste everyone's time.
-  Submit and pay for your share of arbitration, and add it to your exhibits.  This eliminates the argument that you'r not going to pay.  Or that your filing costs are way more than they really are.
-  Write up your proposed judgment granting the dismissal and MTC, or the Stay and MTC.  Make sure to include language in the order that requires the JDB to pay their portion of the Arbitration fees within 30 days of the date of signing.   As you've already paid for your share, and this will be added leverage.

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We've already seen a dozen times that you cannot force yourself away from the Court's Jurisdiction. And our screwed up courts are all the more reason to deviate as little as possible from the norm. If you're going to say that filing an answer triggers Midland into filing a motion for summary judgment, you could make the same argument and say if you don't file an answer it triggers them into filing for default. Midland is going to do whatever they do. Keep things as simple as possible. File an answer with a motion to compel and wait for the court to rule.

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36 minutes ago, Harry Seaward said:

Keep things as simple as possible. File an answer with a motion to compel and wait for the court to rule.

I agree with keeping it as simple as possible, I have not had much luck with the MTD/MTC in lieu of an answer so far.  

I have 2 other cases with this filing.. One is in appeal with my memorandum filed April 11 with Midland.  The other began in June, filed MTD/MTC on June 30, this is with LVNV and they never responded after I finally filed an answer on Oct 30, so it's been more than 6 months without any response. 

This case with Jefferson Capital, is just compounding the stress.  But @Coffee_before_tea I do like your plan it just may be more complicated than I can follow through on Pro Se.  Your suggestions seem on point but I don't know how to incorporate them into an answer. 

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41 minutes ago, Harry Seaward said:

We've already seen a dozen times that you cannot force yourself away from the Court's Jurisdiction. And our screwed up courts are all the more reason to deviate as little as possible from the norm. If you're going to say that filing an answer triggers Midland into filing a motion for summary judgment, you could make the same argument and say if you don't file an answer it triggers them into filing for default. Midland is going to do whatever they do. Keep things as simple as possible. File an answer with a motion to compel and wait for the court to rule.

We do not know the reasoning behind the AZ courts trying to hold onto jurisdiction after a MTC Arb is granted.  Is it because the Judges don't know the law & procedure, or because the Defendants aren't challenging the courts decision?   I don't recall a case where the debtor has challenged the courts "pre-trial" nonsense after a MTC arb is granted.  Maybe you can enlighten me.

"deviate as little as possible from the norm"   This would suggest that filing a Motion to Dismiss in lieu of an answer is "out of the norm", which is nonsense.  MTD's are filed all the time.

We've already seen where a Summary Judgment has been filed after an answer, and MTC Arbitration has been granted.  And the JDB won the Summary Judgment, and the case, in complete disregard to the already granted Motion to Compel Arbitration.   I've yet to see where a JDB has filed for a Default Judgment, after a Defendant has filed a MTD and MTC, maybe you can enlighten me here too.

The entire concept of Arbitration is to remove yourself from the Courts jurisdiction, and by filing an answer you are somewhat acquiescing to their jurisdiction.  A MTD opposes their jurisdiction from the get-go.

In my opinion, filing an answer only muddies the water, and opens the door for more litigation against you.  But OP, you'll have to decide this on your own...

 

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25 minutes ago, stefeni074 said:

I have 2 other cases with this filing.. One is in appeal with my memorandum filed April 11 with Midland.  The other began in June, filed MTD/MTC on June 30, this is with LVNV and they never responded after I finally filed an answer on Oct 30, so it's been more than 6 months without any response. 

Let me get this straight, you filed a MTD/MTC and LVNV never responded, so you filed an answer 3 months late?  Did the court hear your MTD/MTC?

26 minutes ago, stefeni074 said:

This case with Jefferson Capital, is just compounding the stress.  But @Coffee_before_tea I do like your plan it just may be more complicated than I can follow through on Pro Se.  Your suggestions seem on point but I don't know how to incorporate them into an answer. 

It's not really complicated, you just have to include the language in your Motion, and argue the point at the hearing.  Create a Proposed judgement and bring it along with you at the hearing, and with any luck, the Judge will grant your motion, and sign your order.

If they schedule a "pre-trial" conference, file an objection stating the court has no jurisdiction, because the court lacks jurisdiction. 

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25 minutes ago, Coffee_before_tea said:

I don't recall a case where the debtor has challenged the courts "pre-trial" nonsense after a MTC arb is granted.

Midland usually drops the case like a hot rock when the MTC is granted. Most people are delighted to be able to move on with their lives and forget about their lawsuits at that point. 

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