Miheegz

Getting sued by Cavarly SPV I in INDIANA

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@Miheegz

I agree with @fisthardcheese.  Going by the case law I provided earlier, your motion to dismiss will be denied.    Look at your rules of civil procedure regarding an affidavit of debt.   They provide a sample in "Appendix A".   

http://www.in.gov/judiciary/files/affidavit-of-debt.pdf

The rules do no not say that the plaintiff must have proof of personal knowledge when filing the complaint.   

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3 hours ago, fisthardcheese said:

That's not a great motion to dismiss.  They don't have to prove their entire case in the complaint, so much of what you are basing dismissal on will be rejected.

I would just stick to a standard Motion to Compel Private Arbitration and Stay the Case.

Thanks for the advice. I was basing all on this guys case http://www.howtowinacreditcardlawsuit.net/successful-motion-to-dismiss-for-lvnv-funding-credit-credit-card-lawsuit/  and the lawyer I spoke to said it can't hurt.  Plus my CC aggrement says that submitting any pleading does not take away your right to aribitration.

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On 10/24/2016 at 10:21 AM, Miheegz said:

So I found my a copy of the credit card agreement they are suing over and its says neither party has the right to sue the other party but rather must go through AAA arbitration. Now this is an updated version of the CC agreement. I cannot find the 2012 one which is the year I supposedly opened it. The card is a citibank Thankyou Preferred. Any help finding the original 2012 CC agreement would be greatly appreciated! 

Also can anyone tell me if this CC agreement extends to the JDB I've read it a dozen times and I can't tell.

On 10/24/2016 at 10:21 AM, Miheegz said:

 

CC agreement updated.PNG

 

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The advantage of Arbitration is they won't go.  Doesn't matter if it is JAMS (although that would cost them more) or AAA. Calvary will not go.  But you would need to make sure you follow though and open a case, so they can't come back on you and say Judge, please reinstate this case, defendant never filed with arbitration, and wasn't serious" Jams will cost a max of 250.00, AAA will cost 200.00.  You must use the forum stated in the contract. (I see you posted it, but I did not read it)

Here is a sample motion, you can change to fit your needs.  You don't need all that other stuff, because it is all a moot point if your going to go to arbitration.  When your done, file with arbitration so it doesnt come back to bite you. Especially if the judge stays the case instead of dismissing it.

 

PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Petition to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about XX/xx/xxxx, 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) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

4. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION et ux, 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, 103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). 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, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (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, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

5.The Defendant elects arbitration with JAMS to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement.

Respectfully submitted this day xxxx, 2015

Me, 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: __________________, 2015

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18 hours ago, Miheegz said:

Also can anyone tell me if this CC agreement extends to the JDB I've read it a dozen times and I can't tell.

Under contract law when an assignee steps into the shoes of the original contract holder through purchase or assignment of the contract they get all rights and responsibilities of that contract as though they were the original party.  

So a junk debt buyer purchasing a portfolio of defaulted credit card accounts would get all the rights to collect on the debt and as such all the responsibility to perform under the contract regarding disputes and arbitration.

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19 hours ago, Miheegz said:

Thanks for the advice. I was basing all on this guys case http://www.howtowinacreditcardlawsuit.net/successful-motion-to-dismiss-for-lvnv-funding-credit-credit-card-lawsuit/  and the lawyer I spoke to said it can't hurt.  Plus my CC aggrement says that submitting any pleading does not take away your right to aribitration.

The MTD in the link was written in 2009.   IN Trial Rule 9.2 was amended in 2011 to allow for an affidavit if a lawsuit is based upon an account.  

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5 hours ago, BV80 said:

The MTD in the link was written in 2009.   IN Trial Rule 9.2 was amended in 2011 to allow for an affidavit if a lawsuit is based upon an account.  

Thanks for the clarification! Major bummer, why couldn't they sue me in before 2011 :(

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6 hours ago, Clydesmom said:

Under contract law when an assignee steps into the shoes of the original contract holder through purchase or assignment of the contract they get all rights and responsibilities of that contract as though they were the original party.  

So a junk debt buyer purchasing a portfolio of defaulted credit card accounts would get all the rights to collect on the debt and as such all the responsibility to perform under the contract regarding disputes and arbitration.

Sweet! Thank you.

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I filed a motion to dismiss based on trial rule 9.2 A and my Answer last Friday. Just received a response to my motion to dismiss citing significant case law so that will probably be denied. 

1) Should I contact the JDB and try to settle now? Or should I file a motion to compel arbitration in AAA according to the CC agreement? (i'd rather not pay the $200 AAA fee if i'm going to setttle anyway)

2) Call or write to try to settle? Can somone point me towards a thread on calling or writing for a settlement. 

3)  Any other advice on settling with the JDB would be greatly appreciated!

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17 minutes ago, Miheegz said:

1) Should I contact the JDB and try to settle now? Or should I file a motion to compel arbitration in AAA according to the CC agreement? (i'd rather not pay the $200 AAA fee if i'm going to setttle anyway)

I would motion to compel arbitration and see if they back down.  If they don't any settlement talks can include a credit for filing in arbitration and what you spent if they don't back down.

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2 hours ago, Miheegz said:

I filed a motion to dismiss based on trial rule 9.2 A and my Answer last Friday. Just received a response to my motion to dismiss citing significant case law so that will probably be denied. 

1) Should I contact the JDB and try to settle now? Or should I file a motion to compel arbitration in AAA according to the CC agreement? (i'd rather not pay the $200 AAA fee if i'm going to setttle anyway)

2) Call or write to try to settle? Can somone point me towards a thread on calling or writing for a settlement. 

3)  Any other advice on settling with the JDB would be greatly appreciated!

We don't have a crystal ball, but I can't see a JDB agreeing to arbitrate for the amount for which you're being sued.    @shellieh98 provided you with sample motion to compel arbitration that includes U.S. Supreme Court case law. 

Considering that the JDB's response to your MTD included significant case law to support it's response, you need to dot your i's and cross your t's in your MTC arbitration.   When using Shellie's sample, make sure you alter it to fit your lawsuit.  

Be sure to include the U.S. Supreme Court citations.   If it were me, I'd add case law from my own state.  Here's some IN case law.

"Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005), trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).

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6 hours ago, BV80 said:

We don't have a crystal ball, but I can't see a JDB agreeing to arbitrate for the amount for which you're being sued.    @shellieh98 provided you with sample motion to compel arbitration that includes U.S. Supreme Court case law. 

Considering that the JDB's response to your MTD included significant case law to support it's response, you need to dot your i's and cross your t's in your MTC arbitration.   When using Shellie's sample, make sure you alter it to fit your lawsuit.  

Be sure to include the U.S. Supreme Court citations.   If it were me, I'd add case law from my own state.  Here's some IN case law.

"Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005), trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).

Thank you @BV80, @shellieh98 , and  @Clydesmom. Just needed a little confirmation. Thanks so much for the case law I will definitely include it.

1 more question! Can I ask the judge to make them file for arbitration instead of me since  they are the ones with a dispute? That way if they don't want to go to AAA I can keep my $200. Thats just a lot of money to me!

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14 minutes ago, Miheegz said:

Can I ask the judge to make them file for arbitration instead of me since  they are the ones with a dispute?

Probably not since you are the one asking the court to compel it there.  Their argument will be that they are perfectly content to stay in court and if you want arb you should file and start the case.  Sorry.

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If you end up having to pay $200, which you may not, but either way, the settlement with the JDB after you start arbitration can be $0.  We have seen quite a lot of people get the $0 settlement after having a granted MTC from court.  That would mean your $200 payment makes the whole case go away.  However, you even still have the option of making them pay you $200 back to drop the case.  That's the power of arbitration with a JDB.

Does your card agreement say you must pay the full filing fee if you file in AAA?

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@fisthardcheese"Paying for arbitration fees  •We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law. "

 

Thats what the CC says. I understood it to mean I would have to pay my own fees. Correct me if i'm wrong.

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@Miheegz

Go ahead with the arbitration.  Don't think about settling.  It's quite possible that if you motion to compel arbitration, Cavalry  may come to you and ask if you want to settle.  But let them make the first move.   And when you do your motion, do what BV80 advised you and let the members here review it BEFORE you submit it to the court and opposing counsel.

IN is a creditor-friendly state.  You may get some push back from the court and opposing counsel in trying to arbitrate your dispute.  But don't let that deter you. Be determined and persistent.

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Thanks again for all the help everyone! It really is appreciated! Here is a draft of my motion to compel/dismiss:

 

STATE OF INDIANA                                                IN THE ST JOSEPH CIRCUIT COURT

 

COUNTY OF ST JOSEPH

 

 

CAVALRY SPV I, LLC

                                                                        )

            Plaintiff                                              )                                  

                                                                        )

                 vs.                                                  )    Case No. *****************

                                                                        )

                                                                        )

*******************                                 )

           Defendant

 

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 October   **th , 2016, 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) “You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your Account, a previous related Account or our relationship (called “Claims”).”


B)If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim. “


c) “all Claims are subject to arbitration, no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, Authorized User, employee, agent, representative or an affiliated/parent/subsidiary company.


d) “Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA”

e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC, Section 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”. 

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 . . . " 

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 24103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). 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, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (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, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

 

6. "Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005), trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).


7. The Defendant elects arbitration to settle this dispute.


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


Respectfully submitted this day ________________, 2016

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11 hours ago, Miheegz said:

@fisthardcheese"Paying for arbitration fees  •We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law. "

 

Thats what the CC says. I understood it to mean I would have to pay my own fees. Correct me if i'm wrong.

What does the agreement's arb clause say regarding a dispute over the arbitration clause itself?  Usually it says an arbitrator must decide disputes over the agreement itself, but some say only a court can decide.  Which does this one say?  If it says the arbitrator will decide, then I would file without sending any money it.  This is part of the beauty of using arbitration.  The agreement says under $75k they will pay except in debt collection cases.  Well, if I file the case, I am not going to mention the debt at all.  My claims will be about their violations of the FDCPA, TCPA, FCRA, etc.  That's not a debt claim, therefore, I point out to AAA that my claims are under $75k and that per the agreement the JDB should forward the consumer filing fee on my behalf.  Any mention of the debt would only be on their counter claim but they can't bring their counter claim until after they pay the initial filing fees (which will be $3500 for them).

If they argue that this is a debt case and you must pay your $200, the arbitrator would have to take up that issue and in order for the arbitrator to take up that issue, they would first have to pay the $3500 and have a hearing on that matter.  If the arbitrator agrees, then you would reimburse them $200 ... and after that they still must pay up another $1500 for a second hearing on the actual case.  They only bury themselves in costs by making this argument - which is highly unlikely they will even do.  They will just want to make a deal with you to go away.

This is why getting the court to grant your MTC is the most important factor here.  This shifts the negotiation leverage to your side.  A granted MTC makes the JDB pay $3500 to continue the case or else they will be in violation of the court order to arbitrate.  They will want the case to go away so they can get out of the big arb bill and this is when you can tell them you will agree to a mutual dismissal with prejudice.

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9 hours ago, fisthardcheese said:

What does the agreement's arb clause say regarding a dispute over the arbitration clause itself?  Usually it says an arbitrator must decide disputes over the agreement itself, but some say only a court can decide.  Which does this one say?  If it says the arbitrator will decide, then I would file without sending any money it.  This is part of the beauty of using arbitration.  The agreement says under $75k they will pay except in debt collection cases.  Well, if I file the case, I am not going to mention the debt at all.  My claims will be about their violations of the FDCPA, TCPA, FCRA, etc.  That's not a debt claim, therefore, I point out to AAA that my claims are under $75k and that per the agreement the JDB should forward the consumer filing fee on my behalf.  Any mention of the debt would only be on their counter claim but they can't bring their counter claim until after they pay the initial filing fees (which will be $3500 for them).

If they argue that this is a debt case and you must pay your $200, the arbitrator would have to take up that issue and in order for the arbitrator to take up that issue, they would first have to pay the $3500 and have a hearing on that matter.  If the arbitrator agrees, then you would reimburse them $200 ... and after that they still must pay up another $1500 for a second hearing on the actual case.  They only bury themselves in costs by making this argument - which is highly unlikely they will even do.  They will just want to make a deal with you to go away.

This is why getting the court to grant your MTC is the most important factor here.  This shifts the negotiation leverage to your side.  A granted MTC makes the JDB pay $3500 to continue the case or else they will be in violation of the court order to arbitrate.  They will want the case to go away so they can get out of the big arb bill and this is when you can tell them you will agree to a mutual dismissal with prejudice.

Thanks for the advice @fisthardcheese. However, I do not know of any FDCPA, TCPA, FCRA violations they have committed. I  don't want to be held liable for their fees if the arbitrator decides my claims were frivolous.

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8 hours ago, Miheegz said:

Also I've seen elsewhere in this forum something about filing your CC agreement as an affidvait so that it is a fact before the court. Is this something I should look into?

What do you mean to file it "as" an affidavit?

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49 minutes ago, BV80 said:

What do you mean to file it "as" an affidavit?

" First, I would like to say to "read" your agreements! There is a wealth of information there and depending on who you might be up against, the agreements and/or even the years of the same creditor's agreements can be different. Always look for one that is more to your liking and use it as the governing agreement. If you attach an affidavit, that makes it a fact before the court. To defeat this, the creditor would have to provide authentic evidence or a witness from the OC with personal knowledge - anything else would be hearsay. So, in other words once you file your affidavit, you've just twined another obstacle in the creditor's path."

This is the quote from the arbitration thread by @Linda7

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28 minutes ago, Miheegz said:

" First, I would like to say to "read" your agreements! There is a wealth of information there and depending on who you might be up against, the agreements and/or even the years of the same creditor's agreements can be different. Always look for one that is more to your liking and use it as the governing agreement. If you attach an affidavit, that makes it a fact before the court. To defeat this, the creditor would have to provide authentic evidence or a witness from the OC with personal knowledge - anything else would be hearsay. So, in other words once you file your affidavit, you've just twined another obstacle in the creditor's path."

This is the quote from the arbitration thread by @Linda7

That means you file your own affidavit with the agreement.

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