Looking at past Calvary lawsuits in my county

[upcycleliving]

So as I get ready to go to war with Calvary I have been encouraged by all the posters posting about their succesful battles with JDB however I got discouraged over the past few days when I combed through over 1,000 court records in my county. If Calvary is not undefeated they are pretty damn close. Almost every case I found where somebody filed an answer ended in a motion for summary judgment decided in their favor. Hell I even found a couple cases where the defendant hired a lawyer to defend them and still they lost because of summary judgment. One of these was for $13,000 and I'd hate to be the lawyer telling my client that the judge has ruled in favor of their summary judgment motion.

Combing through over 1,000 records I can't find a single case where a defendant has filed for a motion for summary judgment. I hope I can be the exception.

[Clydesmom]

Ohio is VERY creditor friendly.  The problem you are facing is the defenses that worked 10 years ago when the recession started no longer are iron clad.  10 years ago all JDB companies bought was a spread sheet of accounts.  No supporting documents.  They went to court with nothing more than an affidavit they robo-produced saying you owed the money.  It was easy to challenge.  Over the next few years business records rules for court were stream lined, better defined and relaxed with regards to affidavits attesting to accuracy.  Add to that JDBs were no longer required to purchase actual documents for the account at great expense because now creditors do everything digitally.  They can buy portfolios and the digital records at minimal expense.  

Now they come to court with MORE than enough to prove their case.  The consumer is still left with nothing more than "nope, not mine" which the court knows isn't true.  The basic facts for a court to rule on summary judgment is:  did the consumer/defendant open the account, did they use it, did they make payments, and did they stop?  If so, and the JDB has reasonable proof they bought the account in the portfolio then there are no facts in dispute and the MSJ is granted.  

[upcycleliving]

4 hours ago, Clydesmom said:

Ohio is VERY creditor friendly.  The problem you are facing is the defenses that worked 10 years ago when the recession started no longer are iron clad.  10 years ago all JDB companies bought was a spread sheet of accounts.  No supporting documents.  They went to court with nothing more than an affidavit they robo-produced saying you owed the money.  It was easy to challenge.  Over the next few years business records rules for court were stream lined, better defined and relaxed with regards to affidavits attesting to accuracy.  Add to that JDBs were no longer required to purchase actual documents for the account at great expense because now creditors do everything digitally.  They can buy portfolios and the digital records at minimal expense.  

Now they come to court with MORE than enough to prove their case.  The consumer is still left with nothing more than "nope, not mine" which the court knows isn't true.  The basic facts for a court to rule on summary judgment is:  did the consumer/defendant open the account, did they use it, did they make payments, and did they stop?  If so, and the JDB has reasonable proof they bought the account in the portfolio then there are no facts in dispute and the MSJ is granted.  

I thought Summary Judgment is only when there is no question about the facts. So if somebody denies having made the agreement, isn't their a “material issue of fact” that remains in the case leading to a trial?

[BV80]

17 minutes ago, upcycleliving said:

I thought Summary Judgment is only when there is no question about the facts. So if somebody denies having made the agreement, isn't their a “material issue of fact” that remains in the case leading to a trial?

A denial is not enough to preclude a judgement.  If it were, then no MSJ would ever be granted. 

The party filing the MSJ has the burden of proving there's no issue left for trial.   It all depends upon the evidence and the other party's response to that evidence.

 

 

[upcycleliving]

1 minute ago, BV80 said:

A denial is not enough to preclude a judgement.  If it were, then no MSJ would ever be granted. 

The party filing the MSJ has the burden of proving there's no issue left for trial.   It all depends upon the evidence and the other party's response to that evidence.

 

 

So basically the case comes down to  can I win the arbitration clause right? I've heard from others on the forum that Synchrony's card agreement has very  favorable arbitration terms.

[BV80]

8 minutes ago, upcycleliving said:

So basically the case comes down to  can I win the arbitration clause right? I've heard from others on the forum that Synchrony's card agreement has very  favorable arbitration terms.

Yes.  If you've filed a MTC arbitration and the court grants it, the other party will either have to proceed to arbitration or dismiss the lawsuit.  It will not be able to file a MSJ.

Have you filed MTC arbitration?

[upcycleliving]

17 minutes ago, BV80 said:

Yes.  If you've filed a MTC arbitration and the court grants it, the other party will either have to proceed to arbitration or dismiss the lawsuit.  It will not be able to file a MSJ.

Have you filed MTC arbitration?

Working on it right now. it does appear from looking at recent board posts that some posters have had some success filing for Arbitration in Ohio so I'm optimistic.

[Clydesmom]

1 hour ago, upcycleliving said:

I thought Summary Judgment is only when there is no question about the facts. So if somebody denies having made the agreement, isn't their a “material issue of fact” that remains in the case leading to a trial?

In Texas unless both parties agree with a MSJ is is denied.  I can't speak for OH but in many courts the Defendant simply saying "no, the account isn't mine" isn't enough to over come a MSJ.  You have to have a solid argument in opposition.  Also, remember what trips up A LOT of pro-se Defendants is that the Judge starts asking questions like "is this your address?"  or "did you open the account?"  You cannot lie.  If you get busted you have huge problems.  When you are honest then the Plaintiff and the Judge will paint you into a corner where it is obvious the account is yours and you owe the debt.  Once those two facts are established then there is no reason not to grant a motion for summary judgment.  

A good issue of material fact would be you had never lived at that address on the statements and did not have knowledge of the account.  As proof you have a FACTA identity theft and police reports.  Another good one would be proof that the balance they are suing over is very wrong or the account was already paid.  

1 hour ago, upcycleliving said:

So basically the case comes down to  can I win the arbitration clause right?

Yes.  The goal is not to actually arbitrate but to force them to give up.

1 hour ago, upcycleliving said:

I've heard from others on the forum that Synchrony's card agreement has very  favorable arbitration terms

The do indeed.

[upcycleliving]

3 minutes ago, Clydesmom said:

In Texas unless both parties agree with a MSJ is is denied.  I can't speak for OH but in many courts the Defendant simply saying "no, the account isn't mine" isn't enough to over come a MSJ.  You have to have a solid argument in opposition.  Also, remember what trips up A LOT of pro-se Defendants is that the Judge starts asking questions like "is this your address?"  or "did you open the account?"  You cannot lie.  If you get busted you have huge problems.  When you are honest then the Plaintiff and the Judge will paint you into a corner where it is obvious the account is yours and you owe the debt.  Once those two facts are established then there is no reason not to grant a motion for summary judgment.  

A good issue of material fact would be you had never lived at that address on the statements and did not have knowledge of the account.  As proof you have a FACTA identity theft and police reports.  Another good one would be proof that the balance they are suing over is very wrong or the account was already paid.  

Yes.  The goal is not to actually arbitrate but to force them to give up.

The do indeed.

Is the judge allowed to ask me this at the MTC hearing?

[Clydesmom]

Just now, upcycleliving said:

Is the judge allowed to ask me this at the MTC hearing?

YES

[upcycleliving]

Just now, Clydesmom said:

YES

So even with the MTC I could still be screwed with the judge trying the case for the attorney.

[Clydesmom]

5 minutes ago, upcycleliving said:

So even with the MTC I could still be screwed with the judge trying the case for the attorney.

Be prepared for that possibility.  The court is allowed to ask all the questions it needs to in order to effectively manage the case.  

[BV80]

26 minutes ago, Clydesmom said:

Be prepared for that possibility.  The court is allowed to ask all the questions it needs to in order to effectively manage the case.  

Actually, in motion hearing on MTC arbitration, the court is only supposed to determine whether or not a valid agreement to arbitrate exists and if the controversy is subject to arbitration.  Upon a valid agreement between the parties to arbitrate, the court is not to determine the merits of the lawsuit.  So it doesn't matter whether or not the defendant opened the account and owes the debt.

[Goody_Ouchless]

9 hours ago, BV80 said:

Actually, in motion hearing on MTC arbitration, the court is only supposed to determine whether or not a valid agreement to arbitrate exists and if the controversy is subject to arbitration.  Upon a valid agreement between the parties to arbitrate, the court is not to determine the merits of the lawsuit.  So it doesn't matter whether or not the defendant opened the account and owes the debt.

Right -- otherwise what's the point of even having a motion to move to a new forum if it will be tried during motion hearing.

We've found with MTC that simple works best. You have a contract that gives you the right to arbitration instead of court and you have supreme court on your side. As I believe you discovered, others have been successful in your state, and those Synchrony cards have great arb clauses.

(I'm glad you did your research on Cavalry's trial history and posted results. It's not just Ohio - it's the reality of going to court with "bad facts." No court has the patience for legal trickery when everyone knows that the plaintiff purchased an account you defaulted on - it's like robbing a bank without a mask and being captured on video. Anyone who thinks they can beat these cases in court, in 2018, deserves immediate wage garnishment.)

[Goody_Ouchless]

...and with a 100% MSJ rate - even when facing a lawyer - I'd love to hear how hard they laugh when someone offers a "settlement" figure based on what plaintiff paid for the debt! 

[Clydesmom]

9 hours ago, BV80 said:

Actually, in motion hearing on MTC arbitration, the court is only supposed to determine whether or not a valid agreement to arbitrate exists and if the controversy is subject to arbitration.  Upon a valid agreement between the parties to arbitrate, the court is not to determine the merits of the lawsuit.  So it doesn't matter whether or not the defendant opened the account and owes the debt.

IF the motion hearing is a separate one from the trial.  We all know what the court is SUPPOSED to do but how many threads have we seen where a Judge denies the motion and proceeds to trial.  Not to mention it is VERY easy to use questions to determine the account is the Defendants therefore they have a right to use the card agreement.  That is the one danger in a MTC arbitration is you may have to admit the account is yours.

[BV80]

28 minutes ago, Clydesmom said:

IF the motion hearing is a separate one from the trial.  We all know what the court is SUPPOSED to do but how many threads have we seen where a Judge denies the motion and proceeds to trial. 

In those cases, the defendant has to appeal.  In the face of a valid agreement to arbitrate, courts have reversed the lower court's ruling.  The courts can't get around the FAA and the SCOTUS.

 

29 minutes ago, Clydesmom said:

Not to mention it is VERY easy to use questions to determine the account is the Defendants therefore they have a right to use the card agreement.  That is the one danger in a MTC arbitration is you may have to admit the account is yours.

The account doesn't have to belong to the defendant in order for him to have a right to use the agreement.  

JDBs claim to be a party to the agreement.   Therefore, they are signatories.   Non-signatories can force signatories to arbitrate.   

A signatory to an arbitration agreement cannot avoid arbitration with a nonsignatory "`when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement'" that the signatory signed. I Sports [v. IMG Worldwide, Inc.], 157 Ohio App.3d 593 [813 N.E.2d 4, 2004-Ohio-3113, at ¶ 24 [(8th Dist.)], 813 N.E.2d 4, quoting Thomson-CSF, S.A. v. Am. Arbitration Assn., 64 F.3d 773 (2d Circ.1995). The signatory will be estopped from attempting to avoid arbitration because their claims against the nonsignatory "are integrally related to the contract containing the arbitration clause." Id. at ¶ 24-25.

Since the JDB claims to be a signatory, a consumer/defendant doesn't have to admit the account is his.  Even if he does admit it, it doesn't matter when there's a valid arbitration agreement.

[upcycleliving]

3 hours ago, Goody_Ouchless said:

...and with a 100% MSJ rate - even when facing a lawyer - I'd love to hear how hard they laugh when someone offers a "settlement" figure based on what plaintiff paid for the debt! 

Actually I just found something interesting. This motion for summary judgment was granted by a magistrate but it was overruled by a judge. Would love to know the details of this case but my court website unfortunately doesn't let you view documents online unless you are an attorney.

[BV80]

@upcycleliving

You can get the details by going to the court in which the documents were filed.  You should be able to read and make copies of everything in the file.

[upcycleliving]

I would imagine if you can survive the discovery part of the case that you have a good shot. From my understanding the lawyer will have to fly in a representative from Calvary to show up and they aren't going to do this unless it's a major amount of money. Otherwise the evidence that the lawyer would want to present is hearsay and not admissible.

[Goody_Ouchless]

That used to be the case, but now they attest that the records relied upon by the bank were incorporated into, and are relied upon in, Cavalry's daily business. If every business-to-business transaction required live witnesses, the world economy would collapse.

The thing to remember is that, especially now that everything is exchanged via computer in standard, industry trusted formats, these cases just aren't that complicated. One publicly traded company buys your debt from another publicly traded company and gets a big stack of statements showing you using the account. And figure a judge sees these cases all day.

 

[nobk4me]

I would advise that you not get fixated on trying to win this case through discovery and defeating a MSJ.    As your court's statistics point out, that court is a judgment mill (so to speak) for JDBs.  Arbitration is the best way to defeat them.  Get your case out of the railroad court and into the expensive JAMS arb forum.  File the MTC Arb, and ask for a stay pending arb.  

[Clydesmom]

1 hour ago, upcycleliving said:

From my understanding the lawyer will have to fly in a representative from Calvary to show up and they aren't going to do this unless it's a major amount of money. Otherwise the evidence that the lawyer would want to present is hearsay and not admissible.

As @Goody_Ouchless said and I told you before:  NO.  The only state I know of that still requires a live witness (and even that has been over come) is California.  It is no longer the case that a live witness is required.  You are focusing on things that are not relevant to getting this case out of court.  By doing that you are wasting valuable energy and risking you lose the motion to compel.  Get back in the game and focus on the arbitration

 

[Goody_Ouchless]

28 minutes ago, nobk4me said:

As your court's statistics point out, that court is a judgment mill (so to speak) for JDBs.

Or, put another way, you are guilty. The plaintiff knows it, the evidence shows it, and the judge isn't going to make up his own laws just because Cavalry's business doesn't involve bringing joy to it's "customers" lives.

For the love of The Flying Spaghetti Monster can we please get off this idea that there's some kind of "fix" going on.

CAVALRY WINS 100% OF TIME BECAUSE THEY ARE IN THE RIGHT, NOT BECAUSE THE "COURT" IS "CREDITOR FRIENDLY!"

 

[fisthardcheese]

Everyone has given you good advice here, which goes along with what you found in your research.  The fact is, an OH court is a horrible place to argue your case as a consumer.  So, instead of arguing ANY point in your case, you file an MTC and the ONLY arguments that shall be made from that point forward is:

1. Is there a valid arbitration agreement. 

2. Are both parties subject to the arbitration clause.

3. Arbitration should be ordered and the case stayed by the court.

That's it.  Nothing else.  If Calvary or the Judge attempt to veer off of the Aribtration topic by asking about the debt, I would respectfully object and note that those questions are for the arbitrator of JAMS to decide, per the card agreement, the FAA and the Supreme Court of the United States, and not this court.