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It seems the debt companies have gotten a little smarter and started laying out their claims better in summons. I received one today for a court date in April, so I have time to try to figure this out. 

They did attach an Affidavit of Indebtedness and Ownership of Account (see attached). My question is, does the information contained in it fulfill the necessary "bill of sale" requirements? And is there anything else I could do to shut them down? They did not file this lawsuit until I disputed the debt on my credit report, so I'm thinking this is a lawsuit of opportunity. 

 

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With so many previous owners, you might have a chance to beat them in court if they don't have paperwork for every link in the chain. For $600, arbitration will win, as well.

 

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That's not a sufficient bill of sale because it's not created by the seller. But I'd count on the bills of sale making an appearance with the MSJ.

The webank card agreement has a gold balls arbitration agreement in that they (LVNV) will have to pay all of the arbitration fees, and there is no small claims court exemption for them to hide behind. 

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Even if they produce 5 "Bill of Sale" documents that show every handoff in the chain of ownership, none of them will actually be valid because none of them will show your specific account number was one of the account numbers sold in the 5 different "bulk sales".

Regardless, you creating a Motion to Compel Contractually Binding Arbitration per the card agreement is the way to go.

 

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18 minutes ago, NormInGeorgia said:

Even if they produce 5 "Bill of Sale" documents that show every handoff in the chain of ownership, none of them will actually be valid because none of them will show your specific account number was one of the account numbers sold in the 5 different "bulk sales".

Regardless, you creating a Motion to Compel Contractually Binding Arbitration per the card agreement is the way to go.

 

And where could I find information on how to do that? I am going to do a Google search, but in case that doesn't work out in my favor, any info would be appreciated. 

 

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1 hour ago, vixen.silvera said:

And where could I find information on how to do that? I am going to do a Google search, but in case that doesn't work out in my favor, any info would be appreciated. 

There is a lot of great information and time fist has put into this thread, please read through it carefully. Also keep in mind that you should not copy and paste anything without knowing specifically what your doing. What he has given is just a sample. If you copy and paste the format and layout only then that's ok,  just read up on what to include in your specific motion.

Read up on your own local court rules for filing motions, as well as your state level requirements.

Also be patient, take your time and triple check yourself to ensure you don't have blunders to figure out later.

Hope this helps man, good luck!

 

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1 hour ago, vixen.silvera said:

And where could I find information on how to do that? I am going to do a Google search, but in case that doesn't work out in my favor, any info would be appreciated. 

 

 

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Thank you so much for all the help. I think I've got my motion to compel almost done, but my local court wants me to list the local court rule that I'm using as basis for the motion. 

 

The only thing I could find is "Agreed Alternate Dispute Resolution", but it doesn't have ANY explanation as to what it entails, and I'm worried that using that rule would mean that the other party has to agree to the arbitration BEFORE I file the motion. Or is the arbitration clause in the credit account agreement enough to say they have already agreed to it (which I have included quotes of in my motion)?

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On 2/22/2018 at 10:25 AM, NormInGeorgia said:

Even if they produce 5 "Bill of Sale" documents that show every handoff in the chain of ownership, none of them will actually be valid because none of them will show your specific account number was one of the account numbers sold in the 5 different "bulk sales".

But courts accept these bills of sale all the time, so better to get the case out of court, given the super consumer friendly arbitration agreement at play here. 

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@vixen.silvera (I am not a lawyer.)  Your state rules of civil procedure and your local court rules should have rules regarding motions--format, timing, memorandum of law requirement, judge's copy, hearing notice, proposed order, etc . As far as grounds and authority for the motion to compel arbitration and stay the case, your credit card cardholder agreement's arbitration clause likely has a section that asserts that the account is governed by the FAA or applicable federal law, (i.e. "This Arbitration provision is made in connection with interstate commerce, and shall be governed by the Federal Arbitration Act, 9 USC Sections 1 through 16. If any part of this Arbitration provision is determined to be void or unenforceable, then this entire Arbitration provision shall be considered null and void; however, it shall not affect the validity of the rest of this Agreement." 

 Federal Arbitration Act (FAA) 9 U.S.C. §2

§2. Validity, irrevocability, and enforcement of agreements to arbitrate
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 a 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.

 Federal Arbitration Act (FAA) 9 U.S.C. §3

§3 Stay of proceedings where issue therein referable to arbitration

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

 

The Tennessee Uniform Arbitration Act (“TUAA”), Tenn. Code Ann. § 29-5-301 et seq. (***Check to make certain this is the current version of the law.***)

§ 29-5-302. Agreements to submit to arbitration Jurisdiction.

(a)  A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that for contracts relating to farm property, structures or goods, or to property and structures utilized as a residence of a party, the clause providing for arbitration shall be additionally signed or initialed by the parties.

(b)  The making of an agreement described in this section providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this part and to enter judgment on an award thereunder.

§ 29-5-303. Order for arbitration Stay of arbitration proceeding Effect of other proceedings involving issues subject to arbitration.

(a)  On application of a party showing an agreement described in § 29-5-302, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.

(b)  On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

(c)  If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (a), the application shall be made therein. Otherwise and subject to § 29-5-318, the application may be made in any court of competent jurisdiction.

(d)  Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

(e)  An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

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The local court rule is likely titled something like "pre-trial motions" or something similar.  Find the rule that says you are allowed to file a motion regarding venue or motion for any type of pre-trial issue.  That would be the rule that allows you to file a motion like the MTC.

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Your local court rules will have instructions/requirements. Here is Tenn. R. Civ. P. 7.02:

https://www.tncourts.gov/courts/supreme-court/rules/rules-civil-procedure

https://www.tncourts.gov/rules/rules-civil-procedure/702

RULE 7. PLEADING ALLOWED; FORM OF MOTIONS
218
RULE 7.02: MOTIONS AND OTHER PAPERS.
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2) The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules.

 

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On 2/23/2018 at 8:40 AM, vixen.silvera said:

Thank you so much for all the help. I think I've got my motion to compel almost done, but my local court wants me to list the local court rule that I'm using as basis for the motion. 

 

The only thing I could find is "Agreed Alternate Dispute Resolution", but it doesn't have ANY explanation as to what it entails, and I'm worried that using that rule would mean that the other party has to agree to the arbitration BEFORE I file the motion. Or is the arbitration clause in the credit account agreement enough to say they have already agreed to it (which I have included quotes of in my motion)?

Here is some TN case law regarding the Federal Arbitration Act and Motions to Compel Arbitration:

 

According to the Tennessee Supreme Court:

The FAA applies to "a written provision in any maritime transaction or a contract evidencing a transaction involving interstate commerce[[3]] to settle by arbitration a controversy thereafter arising out of such contract or transaction." 9 U.S.C. § 2 (1994). The purpose of the FAA is "to ensure the enforceability, according to their terms, of private agreements to arbitrate." Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (quoting Volt Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). Generally, arbitration "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

Taylor v. Butler, 142 S.W.3d 277, 281 (Tenn. 2004).

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Question about Arbitration - I won a civil suit from LVNV after I had fraudulent charges on my card and Cap One didn't address it.  LVNV showed up to court, did not provide proof of ownership and only supplied 3 months worth of statements that came no where near the total they are claiming.  The judge ruled in my favor.  30 days later, LVNV pulled the account from my credit report and filed an appeal through arbitration.  HOWEVER, my Cap One original contract did NOT have an arbitration clause in it.  Doesn't arbitration need to be agreed upon?  I have signed nothing from LVNV except picking up the certified mail stating the court dates.  They have repeatedly refused to show me proof of ownership, bill of sale or any valid statements showing where the extremely high amount came from.  I even agreed in court to happily pay any true and valid balance due, once I had the opportunity to review the full statements.  (i didn't use the card regularly, so I do not know how long my info was out there, we were building the credit limit to redo the kitchen...)  Of the statements I have, there are only online charges, so I am contacting the companies for more info to try and at least have that proof that I didn't authorize the charges, but without the being able to see what else was charged, I am at a loss of what to do for my evidence.

Can I go into arbitration and have it swayed my way, due to the fact that LVNV is cornering me into arbitration without me agreeing, and there is no forced arbitration in my contract?

I am exploring different law firms currently, but would much rather avoid the fees and represent myself as I did before.

 

Thank you!

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39 minutes ago, LynnJamie said:

Question about Arbitration - I won a civil suit from LVNV after I had fraudulent charges on my card and Cap One didn't address it.  LVNV showed up to court, did not provide proof of ownership and only supplied 3 months worth of statements that came no where near the total they are claiming.  The judge ruled in my favor.  30 days later, LVNV pulled the account from my credit report and filed an appeal through arbitration.  HOWEVER, my Cap One original contract did NOT have an arbitration clause in it.  Doesn't arbitration need to be agreed upon?  I have signed nothing from LVNV except picking up the certified mail stating the court dates.  They have repeatedly refused to show me proof of ownership, bill of sale or any valid statements showing where the extremely high amount came from.  I even agreed in court to happily pay any true and valid balance due, once I had the opportunity to review the full statements.  (i didn't use the card regularly, so I do not know how long my info was out there, we were building the credit limit to redo the kitchen...)  Of the statements I have, there are only online charges, so I am contacting the companies for more info to try and at least have that proof that I didn't authorize the charges, but without the being able to see what else was charged, I am at a loss of what to do for my evidence.

Can I go into arbitration and have it swayed my way, due to the fact that LVNV is cornering me into arbitration without me agreeing, and there is no forced arbitration in my contract?

I am exploring different law firms currently, but would much rather avoid the fees and represent myself as I did before.

 

Thank you!

Welcome to the boards.  It would help us if you would start your own thread.

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On 9/4/2019 at 3:46 PM, LynnJamie said:

Question about Arbitration - I won a civil suit from LVNV after I had fraudulent charges on my card and Cap One didn't address it.  LVNV showed up to court, did not provide proof of ownership and only supplied 3 months worth of statements that came no where near the total they are claiming.  The judge ruled in my favor.  30 days later, LVNV pulled the account from my credit report and filed an appeal through arbitration.  HOWEVER, my Cap One original contract did NOT have an arbitration clause in it.  Doesn't arbitration need to be agreed upon?  I have signed nothing from LVNV except picking up the certified mail stating the court dates.  They have repeatedly refused to show me proof of ownership, bill of sale or any valid statements showing where the extremely high amount came from.  I even agreed in court to happily pay any true and valid balance due, once I had the opportunity to review the full statements.  (i didn't use the card regularly, so I do not know how long my info was out there, we were building the credit limit to redo the kitchen...)  Of the statements I have, there are only online charges, so I am contacting the companies for more info to try and at least have that proof that I didn't authorize the charges, but without the being able to see what else was charged, I am at a loss of what to do for my evidence.

Can I go into arbitration and have it swayed my way, due to the fact that LVNV is cornering me into arbitration without me agreeing, and there is no forced arbitration in my contract?

I am exploring different law firms currently, but would much rather avoid the fees and represent myself as I did before.

 

Thank you!

Please start your own thread for this.  This is a very interesting case that we have not seen before and it appears LVNV may have violated the FDCPA.  Lots of people would like to follow this and chime in, but it needs to be it's own thread for best results.

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4 hours ago, fisthardcheese said:
 

Please start your own thread for this.  This is a very interesting case that we have not seen before and it appears LVNV may have violated the FDCPA.  Lots of people would like to follow this and chime in, but it needs to be it's own thread for best results.

My understanding is there must be a arbitration clause in the written agreement. Cap One doesn't have arbitration clause in its card agreements. However, is your card agreement old enough that it does include the arb clause? If not LVNV  is taking an action it cant lawfully take. If so, my suggestion would be to motion to dismiss for lack of jurisdiction to render judgment on the merits as no written agreement to arbitrate exist between the parties. 

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