nickysduck2 Posted January 11, 2017 Report Share Posted January 11, 2017 I just learned yesterday that I am being sued by Portfolio Recovery. I am in TN. The court hearing is March 23rd. I have never requested dv. I ignored them completely and hoped they would go away. The debt is for a Dell premiere account with CIT. The amount is around $2400 and there is an arbitration clause but I am unsure if I have a correct copy of the cc agreement I need.I need a 2015 one and someone sent me one but there is no date mentioned anywhere in it. I have been to court over credit cards before and used the arb clause to win 2 other cases but that was several years ago and I'm rusty. In my court answering a summons by mail is not required or permitted. Instead you just appear on the court date . The judge makes everyone in court that day spend 30 minutes before court talk to the plaintiff to attempt to work out a payment arrangement. After that anyone who does not reach an agreement gets called one by one before the judge. This is what scares me. The other 2 cases I was sued over never got this far. The most memorable one was for an hsbc card. I requested dv and elected arb first and they sued me anyway. I responded by typing up a MTC and getting it notorized. I sent a copy of this certified mail to the plaintiff and I can't remember if I sent a copy certified mail to the judge or not so I'm confused on that. Anyway, they wrote me back and said it was too late to stop the court hearing but would have it thrown out and when I showed up for court they did as they said they would. This case was dismissed and in arb they also dismissed it because t would cost them too much to pursue it. Now I am being sued again and have never even requested dv on this debt. I want to elect arb on this as well like I did last time in hopes it gets thrown out of court. I have not even been served yet! I found out about this suit from an attorney who sent me a letter to solicit my business. I called the court house and the clerk confirmed it and gave me the court date. I asked her if I could mail a MTC arb to the judge before the court date and she had no clue and told me to call the Portfolio recover attorney. My question is can I send the plaintiff a MTC arb like I did last time and hopefully get this thrown out of court? Also can anyone provide a 2015 Dell CIT agreement? I have one I think is 2015 but I want to make sure I have the correct one. I have attached it below if someone can confirm I have he right one.The writing is so small I can not find the date. God bless you for all your help!! Dell_Citibank_agreement_from_debtor_boards.PDF Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 11, 2017 Report Share Posted January 11, 2017 Are you sure it's CIT? Dell started using Webbank for their financing as early as 2012. I can't find any agreements for CIT, even as far back as 2014. If the account was active any time in 2015, there's a decent chance the OC was Webbank or they at least acquired your Dell account from CIT. Here a WebBank/Dell agreement. There is no date on the agreement, but I got it from the CFPB Q4 2014 archive and the CFPB database says the effective date on this agreement is 06-30-2012. So it was in effect for at least 2 1/5 years. The next WebBank/Dell agreement I can find after this one is dated 04-04-2016.creditcardagreement_6868.pdf But here's the deal. Every CIT and WebBank agreement I've looked at has an arbitration provision, so you're probably safe using an undated one. If Portfolio says it's not the correct one, ask the court to order them to produce whatever agreement they believe is the correct one. I'll bet it will have an arbitration provision. Since you've already been sued, I would just deal with this through the court. I suggest sending a letter to Portfolio's attorney just to put them on notice that you're going to be asking the court to order arbitration, but don't count on that deterring them. They usually come up with some kind of argument why the agreement isn't valid or doesn't apply to them. Just be ready for that. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted January 11, 2017 Report Share Posted January 11, 2017 @Harry Seaward The Dell CIT agreement is attached. There is no date on it, but if a JDB sued me and their complaint stated that CIT was the OC, I would use this agreement with an affidavit testifying that it is a true and correct copy of the agreement that governed the alleged account. If the JDB doesn't like that, I would force them to present their own agreement, and, like you said, whatever they present will also have arbitration in it, so it would be pointless. Dell_CIT_agreement.pdf Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 11, 2017 Author Report Share Posted January 11, 2017 My collection letters from PRA say Dell CIT on them. I thought per the arbitration clause that once I elected arbitration and made the plaintiff aware of that it had to be thrown out of court. If they don't drop the case is'nt that an FDCPA violation? Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted January 11, 2017 Report Share Posted January 11, 2017 31 minutes ago, nickysduck2 said: My collection letters from PRA say Dell CIT on them. I thought per the arbitration clause that once I elected arbitration and made the plaintiff aware of that it had to be thrown out of court. If they don't drop the case is'nt that an FDCPA violation? No, they don't and no, it isn't. It will be up to the judge to grant your MTC and force PRA to arbitrate. The judge should easily grant it because the SCOTUS, the contract and the FAA are all on your side. Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 11, 2017 Author Report Share Posted January 11, 2017 Ok thanks! Should I go to the court house in person and file a MTC with the clerk just to be safe or just send it to the plaintiff certified mail only? Im not even sure my court permits that sort of thing given the clerk was clueless when I ask her over the phone. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted January 11, 2017 Report Share Posted January 11, 2017 Clerks are simply DMV employees at a different building. You need to find your court's local rules and find out. 1 Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 11, 2017 Author Report Share Posted January 11, 2017 Ok I have another question. I am trying to find an appropriate sample arb letter to edit and send to Portfolio. I found this one which uses a capitol one arb clause below... NOTICE OF ARBITRATION ELECTION Pursuant to Capital One cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes. As per the agreement, "If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury." The agreement further states, "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." As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration. ___________________________(Your Name Typed) Since The cc agreement I am using is the 2015 Dell CIT agreement that someone provided is it ok for me to edit this sample letter with my own info and send it? I obviosuly am not a lawyer and have a hard time understanding legal talk but I read the Dell CIT agreement and it doesn't seem to say " If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury." or am I wrong? If so does anyone have another sample arb letter I can use? Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted January 11, 2017 Report Share Posted January 11, 2017 I don't bother with letters. They already sued you, so it's meaningless. I would just send them a copy of the MTC as soon as you filed it in court. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 11, 2017 Report Share Posted January 11, 2017 This is the phrase you're looking for: "shall be resolved, upon the election of either you or us, by binding arbitration" It's in the middle of the first paragraph of the Arbitration clause. But you haven't even been served yet, right? Go ahead and get everything ready to go, but don't file anything or send any letters until you are actually served. They may not serve you and the case could get dismissed that way. 3 Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 11, 2017 Report Share Posted January 11, 2017 2 minutes ago, fisthardcheese said: I don't bother with letters. They already sued you, so it's meaningless. I would just send them a copy of the MTC as soon as you filed it in court. I recommend letters because some of the agreements say to send a letter of your intent to arbitrate. I don't see it in this one, so it's probably a moot point. 1 Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 11, 2017 Author Report Share Posted January 11, 2017 Thank you all so much for the help. You have no idea how terrified I am of facing a judge. My brain freezes up and I can't talk or remember what to say when anxiety takes over.I sometimes have panic attacks. I was really hoping I could notify the plantiff in writing of my MTC arb and it might help get this thrown out before the court date because im certain i will screw this up if I have to go before the judge. Im preparing to close my bank account. Since im self employed im pretty much judgement proof given my state's exemptions but still on guard and scared. I called the court today to get the name and address of the attorney and she gave me an attorney who is in Norfolk Va named Nathan Horton and he's not even in my state. She had no address but an 800 phone number so I googled the name and number and the attorney works for Portfoilo. Does'nt a local attorney have to handle this? Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted January 12, 2017 Report Share Posted January 12, 2017 Do not do anything until you are served. After that, you can send the letter if you wish. Just make it simple and to the point. "I have elected arbitration per the card agreement, which states "quote the agreement here regarding arbitration superseding court". Talking to a judge is still way down the road. You will need to be served, file the answer and MTC and then wait for a hearing date to be set. Until then, you can just keep going over everything to learn it better so you won't feel tripped up by anything. In court, if you are nervous, you can simply just read from your motion to tell the judge you want arb and how it is your right with the cited SCOTUS law, etc. 3 Quote Link to comment Share on other sites More sharing options...
debtzapper Posted January 12, 2017 Report Share Posted January 12, 2017 @nickysduck2 It's natural to be nervous in court at your first appearance. Even lawyers who try their first case are nervous. Do this. Start sitting in on a few cases, preferably collection cases, but any kind will do. It will help to acclimate you to the court room and the people there. Wear a coat and tie and carry a yellow legal pad and pen to take notes. It makes you look and feel like a lawyer. 3 Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 12, 2017 Author Report Share Posted January 12, 2017 I am not able to watch cases at the court house because I have to work. I have been to court 2 times though and kinda know what to expect. My court does not require an answer be filed but instead you just show up on your court date. I don't think I can file a MTC before the court date based on what the clerks keep saying either so this is why im so nervous. I can send the MTC to the plaintiff and then I have to just wait and see what happens. At least my court date is far enough off to give me time to prepare myself emotionally for this. Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 19, 2017 Author Report Share Posted January 19, 2017 I was officially served he summons this morning for my case. I spoke to an attorney and was considering hiring him but financially I really can't afford to. The lawyer I spoke to said since I am self employed and paid in cash I was judgment proof so even if they do get a judgement, provided I close my checking account and file my state exemptions they can never collect on it. The judge in this case almost never allows MTC for arb. He is of the opinion that if you are already in a court it should just be handled there so my chances are slim of getting a mtc granted. I am still willing to try the arb route. The lawyer i spoke to told me he knows the attorney handling my case and he is a real a$$. He will argue against my motion to compell arb and Im not prepared to argue back. At this point what should I do. Write the plaintiff a letter electing arb and send him a copy of the credit card agreement with he arb clause highlighted and a copy of the motion I will take to curt on our hearing date? If my motion is denied is there still an opportunity to negotiate payments before a judgement? Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 19, 2017 Author Report Share Posted January 19, 2017 Here is a copy of the cc agreement attached. It does not say that if we are they elected arb both parties revoke the right to pursue any claims in a court of law. Am I screwed? Dell_CIT_agreement.pdf Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted January 19, 2017 Report Share Posted January 19, 2017 1 hour ago, nickysduck2 said: He will argue against my motion to compell arb and Im not prepared to argue back. Part of this is being able to defend yourself. If you cannot defend yourself in court on the motion to compel or the trial I would be finding a way to hire the lawyer or settle for less. 1 Quote Link to comment Share on other sites More sharing options...
nickysduck2 Posted January 19, 2017 Author Report Share Posted January 19, 2017 3 minutes ago, Clydesmom said: Part of this is being able to defend yourself. If you cannot defend yourself in court on the motion to compel or the trial I would be finding a way to hire the lawyer or settle for less. The fee for the lawyer is more than I can afford now that the summons has been served and he can't just make a phone call to talk them out of it. Im forced to handle this myself now. I honestly think the easiest thing to do is show up in court and in the hallway meeting offer them $25 per month and they either take it or leave it. Im judgement proof and on a very limited and tight income and this would be more feasable than stressing over it and ruining my health from the constant worry. I am wondering if I should write them a letter offering this amount before the court date or just go to court and offer it in person. also should I tell them i am judgement proof? I have been to court before and know the judge frowns upon attorneys who deny any payment offer a defendant makes no matter how small the amount. If I can avoid court that would be great. Quote Link to comment Share on other sites More sharing options...
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