fisthardcheese

Arbitration Overview and Strategy (2018 - Most Up To Date Info)

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4 hours ago, Cats_in_the_Cradle said:

I didn't realize until after it was filed that I had left this out

There's no requirement anywhere that says there has to be an affidavit. We've been telling people to include them with the MTC just to head off any response from opposing that it's a "random agreement downloaded from the internet". If they oppose the MTC, you can submit your affidavit in your reply. 

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10 hours ago, Harry Seaward said:

There's no requirement anywhere that says there has to be an affidavit. We've been telling people to include them with the MTC just to head off any response from opposing that it's a "random agreement downloaded from the internet". If they oppose the MTC, you can submit your affidavit in your reply. 

Thanks. What should I search for when looking for this Affidavit? I apologize for the question, just haven't been able to find the name of the Affidavit or what it needs to state about the cardholder agreement. 

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1 hour ago, Cats_in_the_Cradle said:

just haven't been able to find the name of the Affidavit or what it needs to state about the cardholder agreement. 

It needs to state that you are making the statements under penalty of perjury, that your statements are based on your personal knowledge of the account and records, that it was your account and that the attached agreement was in effect during the life of the account. It also needs to be notarized ("subscribed and sworn to before me") to have any effect. 

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On 10/19/2018 at 8:14 AM, Cats_in_the_Cradle said:

If I left out the Affidavit when filing the MTC Arbitration, can I file it separately or should I just wait to produce the document at the Hearing?

I didn't realize until after it was filed that I had left this out

It is not critical unless they try to argue the point that you have the wrong card agreement.  It is just suggested to go ahead and include the affidavit to head that off.  But since you did not, I would just bring it to the hearing to have just in case they try to use the "wrong agreement" argument.

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Hello,

Not sure if I should make my own thread or post in here so sorry in advance if I've commented in wrong thread. I am being sued by Barclay's Bank for $2,795.12. I checked our state database and saw the complaint was filed on October 26, 2018. A court date was filed on October 29, 2018 and is set for Feb 1, 2019. I have not yet been served. I've went over the notes here (thank you btw!) so based on what you all have said I should NOT do anything until I've been served right? random: is there a way to contact the server to meet them somewhere so they don't serve me at work?

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5 hours ago, DHABTE said:

Hello,

Not sure if I should make my own thread or post in here so sorry in advance if I've commented in wrong thread. I am being sued by Barclay's Bank for $2,795.12. I checked our state database and saw the complaint was filed on October 26, 2018. A court date was filed on October 29, 2018 and is set for Feb 1, 2019. I have not yet been served. I've went over the notes here (thank you btw!) so based on what you all have said I should NOT do anything until I've been served right? random: is there a way to contact the server to meet them somewhere so they don't serve me at work?

I think you would be better off starting your own thread.

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Hi Fisthardcheese,

First, I really appreciate all your insightful posts and advice--I'm a fan! I am new to the forum and am reaching out for some advice on what to do. I have 2 charged-off Citibank CC accounts that are now owned by LVNV funding. One is in the amount of about $9800 and the other $1900. I have received a dunning letter from a law firm (Harris and Zide) here in California. I have not been sued yet, but given that the law firm is local and I am very close to the SOL (in March 2019), I think it's a matter of time before I am sued. The strange thing is, I've only received the lawyer's dunning letter for the lower amount and did not receive any for the larger ($9800) amount. Upon closely reviewing the lawyer's letter, I've noticed that the mailing address that they have on me is incorrect, but somehow it still got delivered to me okay (they basically hybridized parts of my old address with my new).

I have closely read your arbitration strategy, and I'm thinking of using it. I have a few days before the 30-day window to demand debt validation and articulate that I elect arbitration per the credit card agreement. I think this is especially suitable for the smaller amount, since, as you've wisely pointed out, Citibank has the "small claims exemption" for arbitration. But that leaves me wondering what I should do about the larger amount, for which I never got a dunning letter from this law firm (it probably got lost in the mail due to the wrong address they have on me). In California, the small claims limit for individuals and sole proprietorship is $10K, and for corporations and other entities, it's $5K. Should I just wait until I am sued to opt for arbitration? Should I send a letter of dispute with arbitration wording anyway? Is it possible i can use the incorrect address they have on my file as a basis of any kind for FDCPA or state and federal consumer debt collection laws violation? 

I understand the disadvantage of filing for arbitration before a lawsuit (JDB stalling and arbitration case closing; then JDB filing a lawsuit thereafter). But I've read somewhere that if they were to sue you after you make clear your choice to elect arbitration, they would be in violation of the FDCPA. 

Any thoughts you can offer would be greatly appreciated. This is so unnerving and confusing...

 

 

 

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21 hours ago, Hero.Won said:

Hi Fisthardcheese,

First, I really appreciate all your insightful posts and advice--I'm a fan! I am new to the forum and am reaching out for some advice on what to do. I have 2 charged-off Citibank CC accounts that are now owned by LVNV funding. One is in the amount of about $9800 and the other $1900. I have received a dunning letter from a law firm (Harris and Zide) here in California. I have not been sued yet, but given that the law firm is local and I am very close to the SOL (in March 2019), I think it's a matter of time before I am sued. The strange thing is, I've only received the lawyer's dunning letter for the lower amount and did not receive any for the larger ($9800) amount. Upon closely reviewing the lawyer's letter, I've noticed that the mailing address that they have on me is incorrect, but somehow it still got delivered to me okay (they basically hybridized parts of my old address with my new).

I have closely read your arbitration strategy, and I'm thinking of using it. I have a few days before the 30-day window to demand debt validation and articulate that I elect arbitration per the credit card agreement. I think this is especially suitable for the smaller amount, since, as you've wisely pointed out, Citibank has the "small claims exemption" for arbitration. But that leaves me wondering what I should do about the larger amount, for which I never got a dunning letter from this law firm (it probably got lost in the mail due to the wrong address they have on me). In California, the small claims limit for individuals and sole proprietorship is $10K, and for corporations and other entities, it's $5K. Should I just wait until I am sued to opt for arbitration? Should I send a letter of dispute with arbitration wording anyway? Is it possible i can use the incorrect address they have on my file as a basis of any kind for FDCPA or state and federal consumer debt collection laws violation? 

I understand the disadvantage of filing for arbitration before a lawsuit (JDB stalling and arbitration case closing; then JDB filing a lawsuit thereafter). But I've read somewhere that if they were to sue you after you make clear your choice to elect arbitration, they would be in violation of the FDCPA. 

Any thoughts you can offer would be greatly appreciated. This is so unnerving and confusing...

 

 

 

I would not mention arbitration in your DV letter.  I would simply state that I dispute the alleged debt and ask for verification, if you choose to send a DV letter.  Stating that you "elect" arbitration in a letter is completely meaningless and has no basis in law.  The only thing it could do is potentially derail your own lawsuit against LVNV should they happen to do something crazy down the line and then they can get out of your lawsuit by holding up a letter you sent them stating that you want arbitration.

You are holding Citi card agreements.  Read those agreements CAREFULLY.  They are among the few agreements where I actually DO advocate for filing in arbitration before they get a chance to sue you because there is language in the agreement stating that arbitration does not apply to small claims cases.  If they sue you in small claims, a judge may not allow you to go to arbitration.

But also, on the other hand, you are in CA, and this is state where our regulars from there still have good success in beating JDBs like LVNV in court, so arbitration is not as much of a dire need as it is in other state's courts.  So you have that option to consider also.

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51 minutes ago, fisthardcheese said:

I would not mention arbitration in your DV letter.  I would simply state that I dispute the alleged debt and ask for verification, if you choose to send a DV letter.  Stating that you "elect" arbitration in a letter is completely meaningless and has no basis in law.  The only thing it could do is potentially derail your own lawsuit against LVNV should they happen to do something crazy down the line and then they can get out of your lawsuit by holding up a letter you sent them stating that you want arbitration.

You are holding Citi card agreements.  Read those agreements CAREFULLY.  They are among the few agreements where I actually DO advocate for filing in arbitration before they get a chance to sue you because there is language in the agreement stating that arbitration does not apply to small claims cases.  If they sue you in small claims, a judge may not allow you to go to arbitration.

But also, on the other hand, you are in CA, and this is state where our regulars from there still have good success in beating JDBs like LVNV in court, so arbitration is not as much of a dire need as it is in other state's courts.  So you have that option to consider also.

Hi Fisthardcheese,

Thanks so much for replying & offering your seasoned insights (you're so amazing I wish I could retain you as my lawyer!). 

My apologies for asking more novice questions, but to clarify:

So if I understand you correctly, as I'm dealing with Citi account, I should file for arbitration without necessarily even asking for a DV from the law firm representing LVNV? Would it be sufficient notification, then, to inform the attorney for LVNV with a CMRRR'd copy of my Demand for Arbitration (as you advise in your Arbitration Strategy post)?

In the meantime, what do you think I should do about the larger Citi CC account (close to $10K) which I'm almost positive LVNV owns but I have not received a dunning letter from Harris and Zide (the same law firm that sent me the dunning letter for the smaller account (less than $2K)? I'm thinking of lying low and hoping somehow they have overlooked this account (probably a wishful thinking), but I do want to anticipate a strategy in case they did send a dunning letter that somehow got lost in the mail & they end up suing me. Given the amount ($10K), I don't think they would be able to take me to small claims court, but now I'm starting to feel paranoid and wondering if they can find a backdoor way to sue me in small claims after all.  If you were me, what would you do about this particular account?

Thanks so much, Fisthardcheese; for those of us hard on our luck and trying to resolve our financial challenges with dignity and some leverage, you are our lighthouse!

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On 11/17/2018 at 2:44 AM, Hero.Won said:

So if I understand you correctly, as I'm dealing with Citi account, I should file for arbitration without necessarily even asking for a DV from the law firm representing LVNV? Would it be sufficient notification, then, to inform the attorney for LVNV with a CMRRR'd copy of my Demand for Arbitration (as you advise in your Arbitration Strategy post)?

If you have time (within the 30 days since receiving the initial dunning letter) to put together everything required to file the arbitration case, then I would respond to the law firm with a DV letter (short, simple dispute) and then state after your dispute to see the enclosed Demand for Arbitration.  I would send it all at the same time.  If you are too close to the 30 day window closing, then I would send the DV letter only and follow it up with the Arbitration Demand as soon as you can.  I would also watch for them to still sue me in court.  If they do, you go through the steps to answer and file the MTC, but any opposing argument they make regarding the "small claims exception" should be denied because you can prove that you filed the arbitration case before they filed the court case.

With your other account, I would just sit tight and wait to see if you get any dunning letter regarding it.  Once you do, I would follow the same steps as above.

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7 hours ago, fisthardcheese said:

If you have time (within the 30 days since receiving the initial dunning letter) to put together everything required to file the arbitration case, then I would respond to the law firm with a DV letter (short, simple dispute) and then state after your dispute to see the enclosed Demand for Arbitration.  I would send it all at the same time.  If you are too close to the 30 day window closing, then I would send the DV letter only and follow it up with the Arbitration Demand as soon as you can.  I would also watch for them to still sue me in court.  If they do, you go through the steps to answer and file the MTC, but any opposing argument they make regarding the "small claims exception" should be denied because you can prove that you filed the arbitration case before they filed the court case.

With your other account, I would just sit tight and wait to see if you get any dunning letter regarding it.  Once you do, I would follow the same steps as above.

Thanks for your advice, Fisthardcheese. I will do just that. Tomorrow is exactly 30 days, so I will send the law firm a post-marked CMRRR DV letter first, and shortly thereafter I will send them the copies of my Demand for Arbitration with AAA.

I can't thank you enough for  taking the time to help consumers like myself get smart and empowered. I will keep you posted.

 

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7 hours ago, fisthardcheese said:

If you have time (within the 30 days since receiving the initial dunning letter) to put together everything required to file the arbitration case, then I would respond to the law firm with a DV letter (short, simple dispute) and then state after your dispute to see the enclosed Demand for Arbitration.  I would send it all at the same time.  If you are too close to the 30 day window closing, then I would send the DV letter only and follow it up with the Arbitration Demand as soon as you can.  I would also watch for them to still sue me in court.  If they do, you go through the steps to answer and file the MTC, but any opposing argument they make regarding the "small claims exception" should be denied because you can prove that you filed the arbitration case before they filed the court case.

With your other account, I would just sit tight and wait to see if you get any dunning letter regarding it.  Once you do, I would follow the same steps as above.

Please explain it to me again. Why send a demand for arbitration in the DV?

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12 minutes ago, BV80 said:

Please explain it to me again. Why send a demand for arbitration in the DV?

Hi BV80, thank you for taking interest in my thread. As a scared but eager newbie who has scoured the pages of this forum (and know whose comments are more insightful and trustworthy than others) before uttering a squeak, I am honored to be in a dialogue with such knowledgeable and generous people like yourself and Fisthardcheese. 

Of course I'm not Fisthardcheese (although I wish I were given my situation), but if I understand Fisthardcheese correctly, he's NOT saying to include the demand wording for arbitration in the DV letter, but to send a copy of the Demand for Arbitration I've already filed with AAA along with the DV letter. This way, the JDB attorney knows I'm not just bluffing arbitration but have initiated it. In the meantime, the DV letter is only to buy me more time and keep them from suing me for the time being. 

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1 minute ago, Hero.Won said:

Hi BV80, thank you for taking interest in my thread. As a scared but eager newbie who has scoured the pages of this forum (and know whose comments are more insightful and trustworthy than others) before uttering a squeak, I am honored to be in a dialogue with such knowledgeable and generous people like yourself and Fisthardcheese. 

Of course I'm not Fisthardcheese (although I wish I were given my situation), but if I understand Fisthardcheese correctly, he's NOT saying to include the demand wording for arbitration in the DV letter, but to send a copy of the Demand for Arbitration I've already filed with AAA along with the DV letter. This way, the JDB attorney knows I'm not just bluffing arbitration but have initiated it. In the meantime, the DV letter is only to buy me more time and keep them from suing me for the time being. 

I understand.  😀. I have limited knowledge of arbitration.  There have been times when he has recommended filing a demand for arbitration before being sued and advising against it in others.  

I’m still learning, so I’m wondering why he recommended filing in your particular situation before you’ve been sued. 

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8 minutes ago, BV80 said:

I understand.  😀. I have limited knowledge of arbitration.  There have been times when he has recommended filing a demand for arbitration before being sued and advising against it in others.  

I’m still learning, so I’m wondering why he recommended filing in your particular situation before you’ve been sued. 

You're right, Fisthardcheese generally advises against filing arbitration before a lawsuit. In my particular case, however, things are different because I'm dealing with a Citi account (that has a small claims exception to arbitration in its agreement) and because the dunning letter from a local law firm means a lawsuit is imminent. 

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10 hours ago, BV80 said:

Please explain it to me again. Why send a demand for arbitration in the DV?

ONLY because this OP is dealing with a Citi Card Agreement that has language stating that arbitration is not available if the dispute is in small claims court.  Since the amount is within small claims limit, and it is likely that is where they would file suit, I suggest filing the arbitration case first to have proof that should over come the small claims exemption argument in court and allow the judge to grant an MTC, since the matter would already be an active case in arbitration prior to the lawsuit being filed.

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On 11/23/2018 at 10:38 PM, lisa7 said:

What if you missed the 30days to send something back? 

Are you speaking of the 30 days after your first contact from a collector?

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Are you speaking of the 30 days after your first contact from a collector?

Im speaking of the debt collector which is a attorneys office.  They had a sheriff bring a packet Sept. 7 (being sued papers) and I had 30 days to respond.  I never responded on paper I did call though and tell them there is no way I can pay the monthly amount they are asking.  I can pay less than the amount a month but the lady said they can't accept that as an agreement.  
Its from Smith Debnam Narron Drake Saintsing & Meyers, LLP.  Thats the attorneys for plaintiff (Midland Funding LLC).  The OC was Best Buy.  Then Midland bought it.
Also the attorney office said I needed to get the CONSENT JUDGEMENT notarized and sent back to them, basically agreeing to pay $150 a month plus any interest form date of judgment until paid in full and court costs.  
I didn't get it notarized because I don't agree with all of it.  I called and told her that due to I can't pay $150 a month, but I could pay a little less.  She told me I still need to get it notarized and sent back.  Im confused..
 
 

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Sounds like you were served and did not answer the lawsuit.  Which is not good.  Can you check the status of the court case online, with the court?

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16 hours ago, lisa7 said:

Are you speaking of the 30 days after your first contact from a collector?

Im speaking of the debt collector which is a attorneys office.  They had a sheriff bring a packet Sept. 7 (being sued papers) and I had 30 days to respond.  I never responded on paper I did call though and tell them there is no way I can pay the monthly amount they are asking.  I can pay less than the amount a month but the lady said they can't accept that as an agreement.  
Its from Smith Debnam Narron Drake Saintsing & Meyers, LLP.  Thats the attorneys for plaintiff (Midland Funding LLC).  The OC was Best Buy.  Then Midland bought it.
Also the attorney office said I needed to get the CONSENT JUDGEMENT notarized and sent back to them, basically agreeing to pay $150 a month plus any interest form date of judgment until paid in full and court costs.  
I didn't get it notarized because I don't agree with all of it.  I called and told her that due to I can't pay $150 a month, but I could pay a little less.  She told me I still need to get it notarized and sent back.  Im confused..
 
 

You should have filed an answer to their lawsuit with the court.  I would do that NOW if they haven't already gotten a default judgement.

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Can someone please direct me where to find court rules for District Court of the county of Nassau, 1st District, Civil Part in NY? I can't find it anywhere. I only have a few days left to file my answer. Do I need to go to court in person to file the MTC? Do I print out an MTC like the sample above and bring it with me along with my answer, affidavit, and card agreement? Do I send the JDB's lawyer anything in addition to the JAMS demand?

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10 minutes ago, gametheory said:

Can someone please direct me where to find court rules for District Court of the county of Nassau, 1st District, Civil Part in NY?

I'm not from new York but this came up on google. 

http://ww2.nycourts.gov/rules/trialcourts/208.shtml

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On 11/19/2018 at 5:19 AM, fisthardcheese said:

ONLY because this OP is dealing with a Citi Card Agreement that has language stating that arbitration is not available if the dispute is in small claims court.  Since the amount is within small claims limit, and it is likely that is where they would file suit, I suggest filing the arbitration case first to have proof that should over come the small claims exemption argument in court and allow the judge to grant an MTC, since the matter would already be an active case in arbitration prior to the lawsuit being filed.

I received a dunning letter from an attorney for Unifund (Citi account) for a debt that is within small claims limits.  It's from the same attorney that I have a pending litigation on for another Citi debt that is in Civil court and currently waiting for my MTC to be granted.  From what I gathered from reading this thread, since it's a Citi account (with small claims exemption in arbitration clause) I should go ahead and send the attorney a DV letter as well as attach my filing with AAA for arbitration?  Do I go ahead and pay the $200 filing fee or do I wait to pay that if they try to sue me?  Or is filing the initial application to AAA just telling the attorney I want to settle things in Arbitration and not court if they chose to pursue collecting this debt from me? 

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6 hours ago, williams4 said:

I received a dunning letter from an attorney for Unifund (Citi account) for a debt that is within small claims limits.  It's from the same attorney that I have a pending litigation on for another Citi debt that is in Civil court and currently waiting for my MTC to be granted.  From what I gathered from reading this thread, since it's a Citi account (with small claims exemption in arbitration clause) I should go ahead and send the attorney a DV letter as well as attach my filing with AAA for arbitration?  Do I go ahead and pay the $200 filing fee or do I wait to pay that if they try to sue me?  Or is filing the initial application to AAA just telling the attorney I want to settle things in Arbitration and not court if they chose to pursue collecting this debt from me? 

All of the Citi agreements I have read state that they will pay your AAA filing fee if you ask.  Therefore, I would not send any money in, but yes, I would send in the AAA filing paperwork with my DV letter.  I would also open the case with AAA online (they have a new online case filing form that makes it easy).  Upload scanned PDF copies of your AAA Demand, Card Agreement and a cover letter stating that you are opening a new consumer case and have asked Unifund to forward the consumer portion of the filing fee per the card agreement. 

I would expect Unifund to ignore this and likely sue anyway, but having the confirmation of filing from AAA and proof that you served the AAA Demand on Unifund prior to their filing in court SHOULD overcome any argument they may make regarding the small claims exception.

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