he_who_is_poor

PRA lawsuit, served, 2 weeks court date can I do anything?

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On 12/30/2017 at 11:27 AM, he_who_is_poor said:

Wow thank you so much. I actually work a double today/half day tomorrow but I agree that I have time.

 

I do want to take the proactive approach regarding the arbitration. I just get down I guess and assume I've lost.

 

I do have one question, in the top template section do you keep that right part to say "ANSWER"? Or does that say DENY or ADMIT. I think it is supposed to say answer. Then the series of denies in my response indicates my choice to deny.

Anyway thanks again this really makes me feel better. Though I'm still not great at confrontation (talking to the attorney) as I usually freeze in these situations.

 

Yeah back then I didn't understand credit, how great of a tool it is to have and actually had a high-ish limit (close to 10K) but I had my sob story and yeah.

 

I really appreciate this thank you.

 

I will retype my response.

Hang in there.  Just do it.  BTW, you may be poor now, but in the future you may not be.  Life changes for us all. Be positive.

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@fisthardcheese

 

14 hours ago, fisthardcheese said:
 

If your court allows a general denial then that is the easiest route.  You simply state "I deny each and every allegation as set forth in Plaintiff's complaint".  That's essentially it.  If not, then you go line by line and deny everything.  Don't admit to anything other than your name and address (if 100% accurate on the complaint).  All the denial does is force them to have to prove their case.

The MTC is also fairly easy.  There are examples all over this site and all you have to do is tweak the language to fit what they Synchrony Card agreement says about arbitration.  If you intend to use arbitration, I would suggest adding to your answer a second section titled "affirmative defenses" and under that state that the defense of Improper Venue applies because the underlying contract contains a private arbitration agreement which Defendant's is exercising and, therefore, this court is the wrong venue.

 

Thank you for the further explanation.

I will respond as @Harry Seaward outlined as I am going that route instead of the general denial. I did not know about that second line that you mentioned regarding affirmative defenses, though it was in the tutorial I was looking at regarding filing an answer.

edit: actually Harry covered this as well.

> fit what they Synchrony Card agreement says about arbitration.

I'll have to read up on that, not sure what you mean off hand where would this information be? I'll Google it.

edit: maybe Harry brought this up as well.

>The Synchrony agreement literally says your notice to PRA re: arbitration can be given in papers filed in the lawsuit

Unfortunately I work tomorrow morning but I will have this filed Tuesday morning. I'll get the final copy written/printed out tonight.

@debtzapper

Quote

 BTW, you may be poor now, but in the future you may not be.  Life changes for us all. Be positive.

That is the plan, get out of being poor haha.

edit: 

I might have found something here... this document by my court says when e-filing they have to state which division number the case is assigned to. I'm not 100% but it seems like I don't have this on my papers. Hmm

http://www.kscourts.org/cases-and-opinions/e-filing/Notice to Attorneys filing Chapter 61 Cases.pdf

Could get dismissal this way according to the piece of paper haha, but still have the arbitration.

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I wanted to verify, the answer it's not an exact formatting right? I had initially typed it out to have the standard format of name-address at the top, then the "in the district court... plaintiff vs defendant..." then the answer  in a numbered list, then the affirmative defense. But I found some conflicting answer templates (some by the judicial area relevant to myself). It's not like I would get denied/lose just because the answer formatting is slightly off?

I did condense the numbered list down to two paragraphs (as shown in one example form), the first answer paragraph has the partial agreement of my living in the county for complaint paragraph 2, and then also says denies the rest. Answer paragraph 2 is the denial of the rest for complaint paragraphs 1, 3-12.

Not sure if that is okay. I almost did not put my signature/address of attorney plus the certificate of service at the bottom.


This is what I have right now, posted on pastebin to avoid large dump of text. (sorry if there are ads)

https://pastebin.com/RkDTrC8S

 

Also there is this line "pursuant To Chapter 61 of location annotated" is that optional/not relevant to me? I figure it is not relevant to me as it seems to be addressing an amount of money expected from the other person which is not my case. But it is included in this one template (for filing an answer) that I was looking at.

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21 hours ago, fisthardcheese said:
 

If your court allows a general denial then that is the easiest route.  You simply state "I deny each and every allegation as set forth in Plaintiff's complaint".  That's essentially it.  If not, then you go line by line and deny everything.  Don't admit to anything other than your name and address (if 100% accurate on the complaint).  All the denial does is force them to have to prove their case.

The MTC is also fairly easy.  There are examples all over this site and all you have to do is tweak the language to fit what they Synchrony Card agreement says about arbitration.  If you intend to use arbitration, I would suggest adding to your answer a second section titled "affirmative defenses" and under that state that the defense of Improper Venue applies because the underlying contract contains a private arbitration agreement which Defendant's is exercising and, therefore, this court is the wrong venue.

 

I said "improper venue" above, but what I meant was Lack of Subject Matter Jurisdiction.  That is the better way to put it for a proper affirmative defense.  The court lacks jurisdiction due to the arbitration clause.

I think your answer will work just fine.  I don't know the formatting requirements of your court - every court has their own set of rules and the formatting requirements on in those rules.  However, if there is some slight error with format, it would be unusual for the court to toss the answer completely.  They usually cut slack for pro-se defendants and also your answer makes clear that your intention is to deny all allegations.  I think it will be just fine.

After you file this, then you can work on the MTC.  If I have time I will try to dig up the example that is used most often on this board.

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@fisthardcheese

 

Thanks I will feel a huge weight lifted temporarily once these are filed. I'm not sure if I should contact the attorney or not (confrontation problem/possible inadvertent self-admission)

 

Then the next hurdle will be showing up and figuring out what to do. I would laugh if that lack of district/division gets the case dismissed but doubtful.

 

Today the buses weren't running so guess this works out.

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I don't know why people feel compelled to be kind (not aimed here) these people from work bought me food. I kept trying to say no. They also gave me a ride home, soaked legs from washing plates in 3F yeah... But I would have Uber'd it.

I'm in a good spot, have a brain, opportunity to improve. It's that feeling of "owing it back" I mean if people ask me a question in a subject matter that I know of, I will happily comply and verbal-blast out information to the point of ranting. It's easier to give than to take it seems, is that an ego thing, "I'm lesser"

So, will get some sleep, do some final checks and file this thing tomorrow/mail a copy to attorney. Maybe do the call.

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Just as a heads up, if you decide to call them, you may end up feeling more flustered and deflated than you are now.  That is what they are an expert on.  You think the attorneys are skilled in court, but in reality they are skilled the most on scaring people into paying them.

Personally, if it were me, I don't bother calling them.  I would file my answer and MTC and wait for the court to order arbitration.  Usually after that, it is THEM who call you to settle.  Having a granted MTC is a powerful position and flips the rolls and puts you in the driver's seat.  I like to be in that position before I talk to them about settlements.

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10 hours ago, fisthardcheese said:

Just as a heads up, if you decide to call them, you may end up feeling more flustered and deflated than you are now.  That is what they are an expert on.  You think the attorneys are skilled in court, but in reality they are skilled the most on scaring people into paying them.

Personally, if it were me, I don't bother calling them.  I would file my answer and MTC and wait for the court to order arbitration.  Usually after that, it is THEM who call you to settle.  Having a granted MTC is a powerful position and flips the rolls and puts you in the driver's seat.  I like to be in that position before I talk to them about settlements.

Sounds good to me. I can't really handle confrontation, my mind locks up. 

I am on my way to file the answer now, already mailed the copy to the attorney. There is some concern the address they provided or if it was my handwriting though the clerk did not ask to revalidate. At first they weren't able to find the address. The most important part is the answer being filed right? The copy to the attorney is giving them a heads up on what my thoughts are?

 

Anyway I will look into the MTC arbitration next. That $250 price tag (if I understood right) kind of sucks but that is a far better outcome than garnishment.

 

Edit :

Alright this has been a great learning experience.

So you file the answer FIRST, get the stamp on it, then mail a copy to the attorney. Surprised no answer filing fee.

Now have to backtrack, send another copy(the correct one this time), maybe I can cancel the first one and not have that unstamped one sent.

I guess I did not google enough.

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2 hours ago, he_who_is_poor said:

Now have to backtrack, send another copy(the correct one this time)

What was not "correct" about the first one you sent?

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49 minutes ago, Harry Seaward said:
 

What was not "correct" about the first one you sent?

I didn't have it stamped by the filing clerk. I mailed one of my own copies before getting a copy filed. I don't know if that makes it "invalid" but I assumed it did. So I had to go back to the post office, mail one of the stamped copies and then go online and pay to cancel the other one (have it sent back to me) it's been a productive day. Totaling about 4 hours haha.

On a positive note, turns out my package wasn't lost so that's good.

So now I've just got the court date this coming Monday. Requested that day off. Thanks for all the help in getting me this far. I certainly had no idea how this worked from the start.

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8 hours ago, he_who_is_poor said:

I don't know if that makes it "invalid" but I assumed it did.

It doesn't.  The only one that really needs to be stamped is the court copy.  I always get my copy stamped, just in case the court loses their copy.  Which has happened to me.  I pulled out my copy with the court stamp on it to show the judge and that was the end of the discussion.  The one you send PRA doesn't need a stamp or a signature or anything.  All it needs is the text of the motions you file with the court so they have what they need to respond.

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There is no $250 price tag for your arbitration.  That is why I call that Synchrony Card agreement the best one around.

Now that your answer is filed, you need to get a copy of that card agreement and READ the arbitration section so that you understand it.  After that, you can read the sample MTC and work out how your card agreement fits into it.

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND 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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. 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.

(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.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 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”.

6. 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 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). 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 (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 (1989) ."

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 . . . "

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 ________________, 2014


(Your name typed), Defendant, pro se

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22 hours ago, Harry Seaward said:

It doesn't.  The only one that really needs to be stamped is the court copy.  I always get my copy stamped, just in case the court loses their copy.  Which has happened to me.  I pulled out my copy with the court stamp on it to show the judge and that was the end of the discussion.  The one you send PRA doesn't need a stamp or a signature or anything.  All it needs is the text of the motions you file with the court so they have what they need to respond.

I was correct in sending this to the attorney who filed/made the case against me right?

At least sending only 1 copy vs 2 doesn't look so bad.

I sent it to that address/attorney (there were 3 on the list, but this person's name was the first and paper said "filed by or prepared by this person")

@fisthardcheese

thanks for this. what is a timeframe for filing this MTC? Not sure if I should already be aware/have filed it or wait till the court results.

"Get a copy of that card agreement" hopefully I can find it easily or apply again partially to get the agreement part? Anyway I will do my research.

Thanks for that starting template.

thanks to both of you for your time.

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11 hours ago, he_who_is_poor said:

I was correct in sending this to the attorney who filed/made the case against me right?

Yes.  I was just clarifying that the copy you are required to send them doesn't need to have the court stamp on it.

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On 12/29/2017 at 9:41 AM, Harry Seaward said:

The Answer by the deadline buys you more time.  Then you can file the MTC a week or so later.

I'm just looking for some last minute info here.

I unfortunately am working these two days prior to the court date. II should have the card agreement/initial draft of the MTC based on @fisthardcheese template. I'm not 100% on the date, regarding if the agreement to use is the year I signed/opened the count or if the years/after (until card was closed) works too. They probably don't change much.

I'm mostly looking for advice/expectation of what will happen in court.

I did see this paper that I mentioned about "If the division regarding court" is not written in the lawsuit, the case can be dismissed. Even if this could happen (the dismissal) as right now I don't have a division. I probably don't want the dismissal right? Or maybe I do regarding buying time. Maybe I could try to settle anyway. That is what my goal seems to be at this time, is to try and settle first lowest lumpsum offer which is just over $850, that's a chunk of change won't lie. But I'm looking forward to the removal from credit report (at least stop reporting) if that happens and peace of mind.

So I will plan to bring the lawsuit sent to me, copy of my filed answer, copy of that division dismissal problem and probably a copy of the MTC draft (which I don't have yet) though @Harry Seaward mentioned (quoted above) that I can file the MTC "a week or so later".

I'm just not sure how this will go down. I will speak to a judge like "Your honor I do declare dat dere incompetence"

Can't wait to get through that day though, up to the filing of the answer has been stressful.

I again want to say thanks.

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What is this court date for?  It is rare to have a preliminary hearing before an answer is filed.  What is the hearing listed as?  If it just says preliminary, then you need not stress and worry as you are.  Prelim hearings before an answer is even due is likely a simple matter of setting future dates and allowing the attorney to attempt to scare and badger you into a settlement agreement.  Most of these settlements are stipulated judgements, meaning if you don't follow through, the other side can enter a judgement against you without going back to court for it.  I would avoid agreeing to that.

In fact, if this were me, I would avoid settlement this early in the game.  I would just listen to their pitch, then state that I intend to file for private arbitration per the card agreement.  I would then try not to laugh as the entire tone of the attorney changes and he starts saying clearly untrue things about how much it will cost you and how bad it will be if you do that (all lies to scare you).  I would say "thanks, we will be in touch" and then go file your answer (and MTC as soon as possible).

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>What is this court date for? 

 

Is it bad if I can't answer that? I just have a date/assumed I have to be there.

>

I would say "thanks, we will be in touch" and then go file your answer (and MTC as soon as possible.)

 

I thought I already filed an answer?

 

Yeah I want to settle but dang, that's my monthly buffer. Maybe if I could delay it a month or so.

 

If I fight it with the MTC is the goal then to not pay? Won't they just turn around and sue me again. Dismissed without prejudice maybe.

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Alright so I'm doing my hw.

I think I found the agreement and it's not dated. Found the part about arbitration.

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_5024.pdf

I see now the part about "Neither a court nor jury will resolve any such dispute"

Ahh... I think this is in the context of on my behalf instead of defending myself.

Quote

However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate.

Most of this seems to be talking about not suing PayPal.

full pastebin regarding arbitration, awe man the formatting didn't work

Anyway I'll fill out the Arbitration template, not sure if it makes sense to bring it with me just in case. I'll answer this now as I type this out (the template) no I would not/should not bring this with me because it says "on some date, I sent a letter electing arbitration with JAMS" and that hasn't happened yet.

I honestly don't know what will happen, I just have this image in my mind of me going up to the judge and then it's like "Do you swear under penalty of law..." (mentioned before not under oath) and then attorney (if present) is like "So you deny these allegations, you're denying this piece of paper that says you have an account with PayPal a clear as day screenshot of your account" those could be faked for all I know.

There is also that part about the unknown division where the court proceeding will take place, that is actually something that I have to do is find the right room as there are several and it's a multi-story building. But I asked in advanced/have an idea where it is.

 

Well in at or under 8 hours, I will know the outcome. Will do a quick finance check.

 

I had to laugh at the line in the affidavit saying "Plaintiff believes that the defendant is not a minor or an incompetent individual..." haha why thank you I wonder about that myself (the latter).

 

Sometimes obsession/anxiety is good to make sure you cover your butt, but I wouldn't mind turning it off.

I actually still don't understand the point of arbitration (aside from an expensive bluff that will likely end in my favor). I mean is this arbitration between me and the debt collector or PayPal? I don't believe PRA is acting on behalf of PayPal.

Maybe I do now after re-typing that template above by hand. The whole thing is arbitration can't be settled by court, and they trying to sue me, has to be done through arbitration and not court, and since arbitration costs a lot of money they will hopefully opt out? I don't know... 5 hours before I'm out the door and heading that way.

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This post will be strictly regarding the arbitration template.

The part on number 2 about "see Exhibit A, attached" what is the attachment? Part of the credit card agreement?

I'm not sure what to put here, these seem to be actual cases that happened/used as reference.

In the paragraphs under number 6:

Quote

 ____, ____ (2010) (slip op., at 3)

Why is that blank?

Quote

"The “principal purpose” of the FAA

As in airplanes?

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FAA = Federal Arbitration Act.

You are over thinking everything.  

1.  In court.  You deny everything, even "under oath", because of these reasons:  Do you know for 100% certainty that this JDB bought YOUR account from pay pal?  Were you there and a party to this sale? No.  So you deny that and make them prove it.  Do you know for 100% certain that the amount they claim you owe is correct to the penny?  I usually wouldn't, especially if my credit reports or last statement I got from pay pal directly had the exact same amount on it.  That's another thing to deny and force them to prove.  Do you see the pattern?  In court, we don't assume ANYTHING.  You either know 100% or you deny it and force them to prove it.

But here is the thing I am trying to tell you....  When you go for arbitration you turn the entire case into YOUR hand.  What you are doing is making the argument about arbitration and why it should be ordered by the court.   As soon as you file an MTC and assert arbitration, you make the debt and everything about THEIR case irrelevant for the moment.  Now, it is all about the arbitration issue.  So who cares about the debt and whether they can prove anything, they need to first go to arbitration before we do all of that.  Arbitration becomes the ONLY issue that the court should be concerned with at this point.

Therefore, in court, your only arguments are 1. This is the contract (your card agreement), and it contains an arbitration clause.  2. I am exercising my right to arbitration. 3. arbitration should be ordered, as stated in the MTC, and here is the case law (Conception v ATT mobility) that says arbitration MUST be ordered if a valid arbitration clause is present in the contract.

The ONLY thing I would be concerned with for now is getting my MTC granted and forcing arbitration.   After that, I settle for $0 in a mutual dismissal.   And no, they can not sue again if you settle for $0 because the settlement will say that you are released of all future liability regarding this account (or you get a dismissal with prejudice).

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@fisthardcheese $0 sounds good to me.

Okay I'm going to drill this in my head within the hour before I leave/head out.

I do agree with what you said about the conflicting amounts, this is actually the case where (although a few pennies/tens of cents) the values don't match.

Okay I understand, if arbitration is possible, I must exercise that right to request arbitration. Wow haha.

I just need to keep my head straight and not get spooked.

edit: also I should just avoid that possible dismissal since the division wasn't stated thing right (if it's even possible) as the $0 dismissal sounds much better and  is final.

Thanks a lot.

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Oh no found more links...

This is what I'm talking about this thing where you're tricked into screwing yourself over. Hooo man... gotta keep my cool. The second link in particular regarding the "why do you want to file arbitration" how do you not know that this is your debt, etc...

Hmm and I'm confused maybe the second link's time frame is off (initial court date already happened for that person) where as for me this is the first court event and I was told/under the impression the MTC comes after. I am currently requesting to file an MTC/use Arbitration.

Aha. I'm under option four

Quote

1.)  File an answer to the complaint by deadline with affidavit denying account stated claims to the court and to plaintiff via attorney and remain in court; OR,  

2.)  Prior to deadline to answer complaint, notify plaintiff by letter sent CMRRR to attorney of your election of private contractual arbitration as per cc agreement in AAA or JAMS forum, and requesting plaintiff dismiss;  and if plaintiff declines,

3.) File a motion to compel arbitration in lieu of an answer by deadline to answer complaint which is virtually same motion as motion to compel; OR

4.)  File answer with arbitration as Affirmative Defense, and soon after file motion to compel arbitration. 

Alright, time to put on my coffin suit and see how this rides.

I wrote notes from your last response @fisthardcheese so I can review it on the bus ride to heck.

 

edit: wouldn't it be funny if they had scrapers that hit these help sites so they knew the counters ahead of time.

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Hoo man 6 pages of x vs y. PRA has 11 on its kill list and I am on there. Will see how this goes.

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