GRRRR101

JDB Strikes Again...in A...Z...

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39 minutes ago, BV80 said:

 The OC is allowed to charge interest and fees.  If the credit card statements show the interest and fees, it's allowed. 

 

Secretary from what company?   Who is the JDB?

Is it a good idea to state in my response to their opposition to compel arbitration that they have included a doc that clearly states they acquired my account in a pool of purchased debts and therefore they have not suffered a loss due to the fact that they willfully bought/acquired the debt based on  Scienti et volenti non fit injuria - “An injury is not done to one who knows and wills it.” ?  I have heard mixed opinion on this subject on another forum before I found this one.  

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49 minutes ago, BV80 said:

 The OC is allowed to charge interest and fees.  If the credit card statements show the interest and fees, it's allowed. 

 

Secretary from what company?   Who is the JDB?

It's Midland Funding llc. The OC was Credit One Bank.  Total is $630.  It looks like only $6 of that is for actual unpaid purchases.

Ok, so in that case , you're saying that means the junk deb buyer can collect those interest/fees in court after account was charged off then?

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3 minutes ago, GRRRR101 said:

It's Midland Funding llc. The OC was Credit One Bank.  Total is $630.  It looks like only $6 of that is for actual unpaid purchases.

Ok, so in that case , you're saying that means the junk deb buyer can collect those interest/fees in court after account was charged off then?

Has Midland provided the last statement from the OC?  If so, what does it show as the final balance?

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$633. The $6 is only the difference of the total Purchases vs. Total Payments over the course of the account.  I paid $617 in payments over 2 years, I purchased $611 items over that time.  So I was merely noting that the debt they are collecting is nothing but late fees and Interst.  But if they are able to collect that then it doesn't matter anyhow I guess. 

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3 minutes ago, GRRRR101 said:

$633. The $6 is only the difference of the total Purchases vs. Total Payments over the course of the account.  I paid $617 in payments over 2 years, I purchased $611 items over that time.  So I was merely noting that the debt they are collecting is nothing but late fees and Interst.  But if they are able to collect that then it doesn't matter anyhow I guess. 

It doesn't matter what you paid over a 2-year period.  The OC charged interest and fees.   Midland is suing for the OC's final balance and did not add the interest and fees.  

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You are not listening.   You filed a MTC.  Stop trying to try the case on its merits.  The actual case becomes irrelevant to the court.  Once again, and this is the last time I say it, all you need to do is worry about your MTC.  Prepare to argue why the MTC should be granted and to fight against the arguments they raised in their opposition to your MTC.  This is the ONLY matter that should be brought up in court. 

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32 minutes ago, BV80 said:

It doesn't matter what you paid over a 2-year period.  The OC charged interest and fees.   Midland is suing for the OC's final balance and did not add the interest and fees.  

The Dec. 2015 statement shows over $400 of just late fees and interest, and that's only for that year.  Since I wasn't really purchasing anything since 2014, it's kind of relevant that 2014 last statement showed over $200 fees/interest for that period to.  It seems like they chose to close the account in Jan. so the last statement would only show $0 interest/fees when all actuality that entire &633. is dang near nothing but fees/interest., period. Trickery if you ask me. .  

I'll see if I can find that info on the interest /fees rules, it is likely not relevant in AZ vs. CA and other states.

Either way, by the time they get judgement I will only have my 1 part time min. wage job, which I'll be sure to keep my request for reduction of garnishment for income hardship handy in court at all times. 

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On 11/18/2016 at 10:41 PM, GRRRR101 said:

 I don't know how the pre-trial works. 

The pre-trial conference (PTC) is a mostly trivial and short meeting to address discovery, disclosure, and the potential for a settlement.  See video.

It is unlikely that any pending motion would be heard (argued in full) at a PTC, although pending motions might be mentioned.

It is unlikely that any merits about the case would be heard at a PTC.

A PTC is geared towards making sure that the case is ready for trial.  You aren't interested in a trial, you have moved to compel arbitration.

You may be encouraged to provide disclosure and speak to the opposing attorney about a settlement.  Other than that, nothing much else happens at a PTC.

If the calendar has scheduled only a PTC, and not oral argument about your motion, it is unlikely that your motion would be heard - but not impossible.

If you haven't filed a reply to their opposition of your MTC, and more than 10 days has elapsed since you were served with their opposition, the time to file has expired.  Though you should still file a reply anyway because often the timeline for a reply is not strictly enforced.

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9 minutes ago, GRRRR101 said:

The Dec. 2015 statement shows over $400 of just late fees and interest, and that's only for that year.  Since I wasn't really purchasing anything since 2014, it's kind of relevant that 2014 last statement showed over $200 fees/interest for that period to.  It seems like they chose to close the account in Jan. so the last statement would only show $0 interest/fees when all actuality that entire &633. is dang near nothing but fees/interest., period. Trickery if you ask me. .  

I'll see if I can find that info on the interest /fees rules, it is likely not relevant in AZ vs. CA and other states.

Either way, by the time they get judgement I will only have my 1 part time min. wage job, which I'll be sure to keep my request for reduction of garnishment for income hardship handy in court at all times. 

 

11 minutes ago, fisthardcheese said:

You are not listening.   You filed a MTC.  Stop trying to try the case on its merits.  The actual case becomes irrelevant to the court.  Once again, and this is the last time I say it, all you need to do is worry about your MTC.  Prepare to argue why the MTC should be granted and to fight against the arguments they raised in their opposition to your MTC.  This is the ONLY matter that should be brought up in court. 

Actually, I am listening and I hear you loud and clear! I am going through the paperwork and just took note of things that I want to know along the way so I understand . Asking those questions now doesn't  mean I'm not listening- or don't appreciate all the advice being given, because I truly do.

The Plaintiff happens to mention the cost in the memorandum opposition to my MTC. I just wanted to insure  that I'm addressing everything I need to.; and not caught off guard. Attorneys don't always play by the book and I'm not experienced in  these types of court proceedings.

On another note, I respectfully want to point out that  I am  a 43 years old woman and talk to my 6 year old in that tone you took with me. You all are helpful but please dont comment if you are feeling irritated with my questions, it  comes off a bit demeaning. 

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26 minutes ago, Xerxes said:

The pre-trial conference (PTC) is a mostly trivial and short meeting to address discovery, disclosure, and the potential for a settlement.  See video.

It is unlikely that any pending motion would be heard (argued in full) at a PTC, although pending motions might be mentioned.

It is unlikely that any merits about the case would be heard at a PTC.

A PTC is geared towards making sure that the case is ready for trial.  You aren't interested in a trial, you have moved to compel arbitration.

You may be encouraged to provide disclosure and speak to the opposing attorney about a settlement.  Other than that, nothing much else happens at a PTC.

If the calendar has scheduled only a PTC, and not oral argument about your motion, it is unlikely that your motion would be heard - but not impossible.

If you haven't filed a reply to their opposition of your MTC, and more than 10 days has elapsed since you were served with their opposition, the time to file has expired.  Though you should still file a reply anyway because often the timeline for a reply is not strictly enforced.

Ok thank you. I was afraid I might be sent to discuss a settlement and wanted to just understand the playing field should i want to maybe consider settling. My life  is crazy right now and I cant really put all my focus into it.  That is the main reason I concerned myself with whether or not the fees and interest are collectible after chargeoff by Jdb. 

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12 minutes ago, GRRRR101 said:

Ok thank you. I was afraid I might be sent to discuss a settlement and wanted to just understand the playing field should i want to maybe consider settling. My life  is crazy right now and I cant really put all my focus into it.  That is the main reason I concerned myself with whether or not the fees and interest are collectible after chargeoff by Jdb. 

Okay.  Just to settle the issue so you won't wonder about it anymore, the answer is yes.  The JDB is allowed to collect OC's final balance.  The interest and fees were charged by Credit One and included in Credit One's final balance.

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21 hours ago, GRRRR101 said:
 

 That is the main reason I concerned myself with whether or not the fees and interest are collectible after chargeoff by Jdb. 

If your MTC is granted, they will likely agree to drop the case.

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4 hours ago, fisthardcheese said:

You are not listening.   You filed a MTC.  Stop trying to try the case on its merits.  The actual case becomes irrelevant to the court.  Once again, and this is the last time I say it, all you need to do is worry about your MTC.  Prepare to argue why the MTC should be granted and to fight against the arguments they raised in their opposition to your MTC.  This is the ONLY matter that should be brought up in court. 

Ok.  So just to make sure I have this right.  I do not need to respond to the disclosure statements which came with witness affidavits and chain of contract ownership; just stick to the MTC for now then, right?   The affidavit and all that are addressed at a later time during trial or Arbitration hearing?

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9 hours ago, GRRRR101 said:

Ok.  So just to make sure I have this right.  I do not need to respond to the disclosure statements which came with witness affidavits and chain of contract ownership; just stick to the MTC for now then, right?   The affidavit and all that are addressed at a later time during trial or Arbitration hearing?

By filing the MTC you are saying that the court does not have jurisdiction to hear this case.  Therefore, until MTC is ruled on, the court should not hear any facts on the case or rule on anything else.  If the MTC is granted, all of the other things you are talking about will be for the arbitrator to rule on, not the court.  Midland will have to pay $3400 before it can get to the arbitrator.  This is a hurdle they do not want because it becomes a lose-lose for them.  This is why I continue to say the only thing that should be your current concern is the MTC and getting that granted.

If they wanted to talk settlement to me, my response would be if they dismiss the case with prejudice I will not file an arbitration case against them.  If they don't agree, I let them know I will be happy to let the court grant my MTC.  The entire point of the MTC - especially with a JDB like Midland - is that is shifts the leverage to you.  You are now forcing them into something they don't want.  Come at it with that mindset and not from the weaker point that they will still try to make you believe you have.  They will make all kinds of wild claims to make you believe you should make a deal with them and pay them something.   There are only 2 facts that I would consider relevant for when they want to negotiate with me.  1. There is a contract with an arbitration clause, and 2. The Supreme Court and the State of AZ have case law that states that in a contract with arbitration, arbitration is the preferred method of resolution.  Arbitration is your contractual and legal right.  Costs, statements and affidavits are completely irrelevant.  Don't allow them to trip you up with them - or trip yourself up by worrying about them before you are well into the arbitration process and have a hearing date set (it will never come).

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3 hours ago, fisthardcheese said:

By filing the MTC you are saying that the court does not have jurisdiction to hear this case.  Therefore, until MTC is ruled on, the court should not hear any facts on the case or rule on anything else.  If the MTC is granted, all of the other things you are talking about will be for the arbitrator to rule on, not the court.  Midland will have to pay $3400 before it can get to the arbitrator.  This is a hurdle they do not want because it becomes a lose-lose for them.  This is why I continue to say the only thing that should be your current concern is the MTC and getting that granted.

If they wanted to talk settlement to me, my response would be if they dismiss the case with prejudice I will not file an arbitration case against them.  If they don't agree, I let them know I will be happy to let the court grant my MTC.  The entire point of the MTC - especially with a JDB like Midland - is that is shifts the leverage to you.  You are now forcing them into something they don't want.  Come at it with that mindset and not from the weaker point that they will still try to make you believe you have.  They will make all kinds of wild claims to make you believe you should make a deal with them and pay them something.   There are only 2 facts that I would consider relevant for when they want to negotiate with me.  1. There is a contract with an arbitration clause, and 2. The Supreme Court and the State of AZ have case law that states that in a contract with arbitration, arbitration is the preferred method of resolution.  Arbitration is your contractual and legal right.  Costs, statements and affidavits are completely irrelevant.  Don't allow them to trip you up with them - or trip yourself up by worrying about them before you are well into the arbitration process and have a hearing date set (it will never come).

Thank you very much..  I think my stress is the fact that I had it in my mind that since the plaintiffs opposition was filed on 11/11 it expires the same day of the pre-trial conference, which is in about an hour.  The main thing is to prove i have a right to Arbitrate , which is what the Plaintiff is opposing to on very weak grounds  I might add.  If I run out of time do you think it's best to just jot down some case law and request a few days extension on the my reply to the opposition to compel arb?  It kind of sounds like I don't really need to worry about that but it's preferred to have it if I can, correct?

 

 

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The "magic" you need to know is that if the court grants your MTC, the case is over.  Midland is not going to arbitrate a $600 debt so they will move to dismiss it instead.   When you show up for your PTC, make sure you let the court know you would like to have your MTC address that day.  As @fisthardcheese mentioned, you could likely end up in a room with them trying to pressure you into taking some kind of a deal.  Do not agree to anything short of a granted MTC or dismissal with prejudice.

Take with you 3 printed copies of this statute (one for you, one for the court and one for Midland's lawyer):
http://www.azleg.gov/viewdocument/?docName=http://www.azleg.gov/ars/12/01502.htm
In subsection A, highlight the phrase "the court shall order the parties to proceed with arbitration,".
If you also notice from subsection A, the only way the court can not summarily  order the parties into arbitration is if Midland denies there is an agreement to arbitrate.  You need to pin them and the court down on this.  Tell the judge you have not seen Midland deny the existence of an arbitration agreement and you want the judge to get Midland to put on the record whether or not they deny there is an arbitration agreement in place.  If they agree there is an agreement, you politely explain to the court that the conditions of A.R.S. 12-1502 have been met and the court should therefore order the parties into arbitration.

If Midland denies there is an agreement to arbitrate, ask them *in court* where their agreement is.  If they say there is no agreement, immediately move to dismiss on the grounds that they have brought a breach of contract lawsuit where there is no contract. At that point they may move for a continuance to give them time to come up with an agreement.  Argue that isn't necessary since you have already shown the court an agreement to arbitrate and have sworn under oath (via your affidavit) that it is the proper agreement for your account.  The only other option I can see is they will argue that the "equity" clause of A.R.S. 12-1501 precludes arbitration because they would have to pay more than the debt is worth in order to bring the case to an arbitrator (or something to that effect).  As I said before, the response to that is you are simply exercising your rights from the agreement THEY drafted.  They can't argue their agreement is valid when they want to enforce a term (make you pay a debt) but invalid when you want to enforce a term (arbitration).  It's all or nothing.

I think that's pretty much all you need to worry about for your PTC.  They could try some new trick we haven't seen yet, but I just don't see any legal way out for them in regard to arbitration.

Final note.  Just because something is improper doesn't mean the court won't go along with it anyway.  It's happened here in AZ several times.  If it does, you have appeal rights.  Appeals cost money by there are options for waivers and deferrals of those fees.  You could have to pay nothing, depending on your financial situation.  I and others here have been through an AZ Justice Court appeal and we can help you if you end up with a denied MTC.

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On November 20, 2016 at 2:29 PM, BV80 said:

Okay.  Just to settle the issue so you won't wonder about it anymore, the answer is yes.  The JDB is allowed to collect OC's final balance.  The interest and fees were charged by Credit One and included in Credit One's final balance.

thank you, I understand better now, with the PTC tomorrow the debt fees are irrelevant and unimportant. So does this mean I dont have to worry about challenging the discovery docs and affidavit, chain of ownership and all that other stuff right now? My head is spinning with all the docs they sent me. The first line of their memo of opposition states my MTC Is not lawful because i filed a motion to dismiss. which i did not. I only stated the request to dismiss. or stay, per arbitration binding agreement in my MTC.     

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Update: PT CONFERENCE

So i went in to court and had a very nice judge by the way. Judge called a different case first- but I'm almost certain it was the same Jdb that is suing me .....

I went next..., no attorney appeared. The judge asked if i had received the request from the plaintiff's attorney of their telephonic appearance. I said No, but did rcv their Discovery Summary & their Opposition to MTC- Arb., which the judge hadnt rcvd. 

He asked how i wanted to move since Plaintiff was a no show, or no call. I asked for a dismissal. He said its early in the stage, but he would grant it if he didnt rcv a good reason for the Plantiff's absence within 10 days. He granted me a 10 day ext. on my response to the Opposition  memorandum.

Then he asked , for the record-how I would have replied to the Plaintiffs request for telephonic hearing appearance.  I said it wouldn't have been a problem. Would a No reply worked better in my favor for something other than just creating an inconvenience for Plaintiff?  I didn't  consider that until later) . lol

That was it pretty much.  Any pointers or opinion on this would be appreciated . Is there anything I should have done, said, or asked for?  

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Well, ok.  lol  If I had to guess, I would say Midland knew they had no shot at defeating your MTC.  All of these lawyers know all of the judges and how they tend to rule on various issues.  But it's also possible Midland's lawyer miscalendared the hearing and will come back with some explanation.  I would expect the court to accept their excuse and keep the case open, at which point you would just move ahead with asking the court to rule on your outstanding MTC.

No harm really in allowing them to appear telephonically for a PTC.  It's the trial where you want to be sure they have their witness in court.  But if all goes as planned, you won't be having a trial anyway.

Good job asking for dismissal!!!

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Lol. I wouldn't have known ask for dismissal had I not read everything here, even though I figured it was a longshot. IAt least it gave me time to prep tmy response to Op. Im expecting them to give an excuse but hoping  but even then they could come back later, unless it's with prejudice , right?. 

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You did very well for yourself.  You kept your cool and stood your ground and asked for a dismissal.  In collection lawsuits, judges aren't used to seeing a pro se defendants  showing up in court, much less speaking calmly and articulately the way you did.  I think the judge probably respected the way you conducted yourself.

Enjoy your Thanksgiving Day.

  

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19 hours ago, GRRRR101 said:

but even then they could come back later, unless it's with prejudice , right?

Sure, they could, but why?  They know you're going to come right back at them with a MTC.  On a $600 debt.  They have way easier money waiting for them in default judgments.

If they don't respond to the court within the 10 days given by the judge, I predict you've seen the last of these guys.

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5 hours ago, Harry Seaward said:

Sure, they could, but why?  They know you're going to come right back at them with a MTC.  On a $600 debt.  They have way easier money waiting for them in default judgments.

If they don't respond to the court within the 10 days given by the judge, I predict you've seen the last of these guys.

Lol, thats funny, "way easier money waiting!"Yes, if they come back I will be ready and more prepared. My only delima now is just wasting more time on prepping my response  to their Opposition, but i guess I have to still cover my apples (pending dismissal).  JAMS  inquired about the PTC status yesterday, but I don't think the process started quite yet(file format issue with my application). If I proceed and The case is dismissed am I liable for the JAMS fee? Should I try to hold off  the processing? The JdB based his Opposition Memorandum on the fact that ARB is unofficial and unpaid..  Does the judge merely need to see my intent to file demand for ARB in my reply to the Opposition to MtC ArB?  Plaintiff does have a copy of my demand for ARB but its sounds like Game of Bluff. I hope one day a loophole is discovered that allows a huge Class Action Lawsuit against JDB for unfair business practices or something. 

 

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