Tiglit18

California Verified Complaint OC Barclay Nelson Kennard

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Greetings all! Here is my new case - yay me! I've been doing research on the difference between a verified and non-verified complaint and if I understand things correctly, in California I am allowed to answer using the General Denial because the Complaint is from the actual creditor and it is under $25k. Please let me know if I have misunderstood things or if anything I do needs to be different because it is a verified complaint.

Also from what I could dig up online, there is an arbitration clause electing AAA - with wording about Barclay covering the fees. Besides sending out the BOP and filing the Answer/POS, what suggestions do you all have on moving forward with this case? Anyone out there who has dealt with this lawfirm before? My other case is a JDB so this seems a bit more scary! Thanks in advance all!

Who is the named plaintiff in the suit?

Barclays Bank Delaware

What is the name of the law firm handling the suit?

Nelson & Kennard - Sacramento

How much are you being sued for?

Under $10k

Who is the original creditor?

Barclays Bank Delaware

How do you know you are being sued?

Served

How were you served?

In person

Was the service legal as required by your state?

Yes

What was your correspondence (if any) with the people suing you before you think you were being sued?

None that I recall

What state and county do you live in?

Riverside, CA.

When is the last time you paid on this account?

According to the Complaint August 2018

What is the SOL on the debt?

4 years

What is the status of your case?

Complaint filed - service made but not recorded yet. I have not answered yet.

Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

Did you request debt validation before the suit was filed?

No

How long do you have to respond to the suit? 30 days

What evidence did they send with the summons?

None. The only attachments were the Verification from the Attorney and generic court docs about the ADR process.

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Awww - N&K is still around? I filed and won an FDCPA suit against them...

 

I would consider using Barclay's arbitration clause if it applies. AAA arbitration used to be very expensive, possibly more than the alleged debt itself. Otherwise, I would go with the general denial and the BOP route...

 

FYI -N&K loves defaults and hates defendants who fight back.

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On 2/24/2018 at 10:52 PM, 1stStep said:

Awww - N&K is still around? I filed and won an FDCPA suit against them...

 

I would consider using Barclay's arbitration clause if it applies. AAA arbitration used to be very expensive, possibly more than the alleged debt itself. Otherwise, I would go with the general denial and the BOP route...

 

FYI -N&K loves defaults and hates defendants who fight back.

Thanks for the info - def plan on fighting back and looking into the agreement wording for arb as well. Already sent off a BOP so hopefully I’ll see what I’m dealing with :)

Updates to come...

 

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So I got a response from my BOP and it’s only 9 months of statements. This is the OC so wouldn’t they have a lot more to supply? 

Any other thoughts on which route to go? Arbitration or keep it in the courts?

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I would run the BOP out to the end before going to the Discovery route...

 

Send a meet and confer indicating that 9 months of statements is not sufficient per the code and you intend to file a motion to preclude any future statements in the case.

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Update:

Ended up filing a MTC Arb and it was granted.

It was not objected by the OC. 

The judge granted my MTC on 6/7 and in the order stated “the action is ordered to private arbitration. All subsequent hearings are vacated. This action is administravely dispositioned”. The case still shows active.

Shortly before the MTC was granted the OC had requested Int/admissions/and prod of docs which were due by 6/12.

 Because my motion was granted before the due date of 6/12 I did not respond to their request and now they  have sent me a letter stating that I have waived  the opportunity to object. They also claim that they will request the judge compel me to answer if I do not respond.

Did I mess up? Should I have objected with the fact that this matter has been referred to private arbitration and the court is no longer the correct venue? Do you think they are running on auto-pilot and just going through the motions even though they know we have been granted arbitration?

They are asking me to have my responses to their office within 10 days. 

 Thoughts on this? 

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1 hour ago, Tiglit18 said:

Ended up filing a MTC Arb and it was granted.

Did you actually file for arbitration once you got the approved motion?  If not, you need to do so immediately.

1 hour ago, Tiglit18 said:

 Because my motion was granted before the due date of 6/12 I did not respond to their request and now they  have sent me a letter stating that I have waived  the opportunity to object. They also claim that they will request the judge compel me to answer if I do not respond.

I would have answered all of them with a denial and that a MTC was pending.

The Judge will not compel you to answer since the venue has already been ruled to be private arbitration.

1 hour ago, Tiglit18 said:

Should I have objected with the fact that this matter has been referred to private arbitration and the court is no longer the correct venue?

Yes

1 hour ago, Tiglit18 said:

Do you think they are running on auto-pilot and just going through the motions even though they know we have been granted arbitration?

Yes.

1 hour ago, Tiglit18 said:

They are asking me to have my responses to their office within 10 days. 

 Thoughts on this? 

Sure.  Respond with a single general denial and that on 6/7 the court approved the MTC and the appropriate venue is arbitration.  You filed on [date] and will settle all matters there.

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Yes I have filed with AAA and sent all forms to all parties. AAA has not yet responded.

I plan to draft a general denial and have that in to the this week. Thanks!!

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I don't know that I would send a letter to them, personally.  They have been ordered by the court to arbitrate. If they insist on filing a motion in court about discovery because I did not respond to an improper discovery, I would let them.  I would then also force them to answer to my counter motion for sanctions as to why they are continuing to litigate the matter in court, ignoring the court's order to arbitrate.

I don't feel any need to let them know they are messing up before they make a big blunder. I would sit back, watch them trip, then ask "What happened??" with feigned shock.

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On 6/26/2018 at 2:57 AM, fisthardcheese said:

I don't know that I would send a letter to them, personally.  They have been ordered by the court to arbitrate. If they insist on filing a motion in court about discovery because I did not respond to an improper discovery, I would let them.  I would then also force them to answer to my counter motion for sanctions as to why they are continuing to litigate the matter in court, ignoring the court's order to arbitrate.

I don't feel any need to let them know they are messing up before they make a big blunder. I would sit back, watch them trip, then ask "What happened??" with feigned shock.

I talked it over with the husband and he thinks you are right. Why give them the heads up - judge granted the arb, they didn’t object. Sounds right to me once I really thought about it. Thanks again for all the input.

Now if AAA would get moving things would be great lol

 

 

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On 6/28/2018 at 1:38 AM, Tiglit18 said:

Now if AAA would get moving things would be great

Arbitration moves very slow.  However, if you have not yet gotten your initial letter/email from AAA, then you can call them and ask for the status of your case (or confirmation that they have received your filing).

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On 7/1/2018 at 8:11 AM, fisthardcheese said:

Arbitration moves very slow.  However, if you have not yet gotten your initial letter/email from AAA, then you can call them and ask for the status of your case (or confirmation that they have received your filing).

So arb paperwork has finally been reviewed and the OC is supposed to make payment along with the consumer amount of $200 by the end of the week.

In the meantime AAA asked me to provide a list of witnesses. I’m not sure exactly who this should be since it’s an OC. The original court complaint was Verified so do I list the attorney who provided the verification as a witness? 

I know that I need to request in-person hearings in order to hike up the costs. 

Any other suggestions at this point in the game?

 

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New to forum, watching this case, but I gotta ask. What makes you certain you are dealing with the OC, Barclays? So you are aware, attorney's and their firms who regularly

engage in debt collection litigation are in fact, debt collectors subject to FDCPA et al.  I ask because I spent almost 4yrs fighting a Portfolio Recovery Associates case

 by a law firm here in Idaho back in 2010. Magistrate pulled a "sua sponte" after I won first appeal, which means despite the evidence he found for Plaintiff despite no evidence, not answering any of my motions and tons more.  My attorney out of Oregon, Joshua Trigstead sent the attorney collection firm an intent to sue and they paid me instead.My BK got rid of them getting any cash from me.  I contend the law firm is not contracted with Barclay's to  represent them, therefor have no standing, subject mater jurisdiction to participate in arbitration.  Please consider getting ahold of this Oregon Law firm.  He has filed cases for me for several years and despite having collected some thousands of dollars for me, I've never gone to court or even attended a deposition.  Many of these collection criminals and their attorney's won't take you seriously until they see they will be held accountable.  They still pull fast ones such as robo signing, expired or invalid terms and conditions etc., and now they seems to be tossing in a letter with the OC letter head on it saying, "yep, pay whom ever sent this to you." (slight exaggeration) I will continue to watch, thanks.What lies in your debt is spendy-but by far the best info out there for filing and winning federal civil claims against debt collector for FDCPA, FCRA, TCPA etc. The Consumer Financial Protection Bureau remains a good consumer advocate.I had to use an attorney as it all took over my life for a while-nowadays I just recognize the violations and shoot off the letters to Josh for review.  I just wish he's take on the FCRA more, because just like these collection companies don't have true affidavits etc. for court, therefor they also DO NOT have nor show via supporting docs having a permissible purpose to access credit reports.  A repeated violation x 3 major CRA's often means big bucks.

Oh, btw, all debt collectors must register with the CFPB so report them and see what they say...  

wliyd:  https://www.whatliesinyourdebt.com/  ( a person can split the costs of their membership with another)

audio: (dave mack does this talk.)  http://www.talkshoe.com/talkshoe/web/talkCast.jsp?masterId=54318&cmd=tc

Oregon Law Firm I've used and are now using: anyone who might want to run their FDCPA or similar case, just email Don his paralegal first. don@tlgconsumerlaw.com

Tell em Robert Mesch referred you in the subject line-you'll get heard. I don't get a bird dog fee.

 

Good luck

 

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7 hours ago, Tiglit18 said:

So arb paperwork has finally been reviewed and the OC is supposed to make payment along with the consumer amount of $200 by the end of the week.

In the meantime AAA asked me to provide a list of witnesses. I’m not sure exactly who this should be since it’s an OC. The original court complaint was Verified so do I list the attorney who provided the verification as a witness? 

I know that I need to request in-person hearings in order to hike up the costs. 

Any other suggestions at this point in the game?

 

Has your arbitrator been appointed yet?  It is unusual for AAA to request a list of witnesses prior to the filing fees even being paid and an arbitrator named to the case yet.   Are you sure they didn't ask you for a list of conflicts?

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7 hours ago, bob5150 said:

So you are aware, attorney's and their firms who regularly

engage in debt collection litigation are in fact, debt collectors subject to FDCPA et al. 

We are aware of this fact.  It has pointed out many times on this site.

7 hours ago, bob5150 said:

I contend the law firm is not contracted with Barclay's to  represent them, therefor have no standing, subject mater jurisdiction to participate in arbitration. 

Attorneys are not required to have "standing" because they are not a party to the lawsuit.  It is the plaintiff who must have standing to sue.  In addition, if a defendant alleges that an attorney is falsely representing that he represents a client, it's up to the defendant to prove it.  Courts don't require attorneys to prove they've been hired by clients.

7 hours ago, bob5150 said:

Oh, btw, all debt collectors must register with the CFPB so report them and see what they say... 

Would you please cite the law that requires debt collectors to register with the CFPB?

In regard to everything else you wrote regarding law firms, attorneys, the FDCPA, TCPA, etc., this site is loaded with information and court rulings to support the information.

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18 hours ago, fisthardcheese said:

Has your arbitrator been appointed yet?  It is unusual for AAA to request a list of witnesses prior to the filing fees even being paid and an arbitrator named to the case yet.   Are you sure they didn't ask you for a list of conflicts?

No arbitrator yet just the case manager.

My apologies - you are correct, they asked for a list of people/firms/companies to ensure there is no conflict of interest. 

Still no payment or answer by Barclays - it says if they don’t pay and don’t answer by the filling deadline then the case will continue with the assumption that they don’t agree with my claims. At what point does AAA stop everything due to a lack of payment?

 

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21 hours ago, bob5150 said:

New to forum, watching this case, but I gotta ask. What makes you certain you are dealing with the OC, Barclays? So you are aware, attorney's and their firms who regularly

engage in debt collection litigation are in fact, debt collectors subject to FDCPA et al.  I ask because I spent almost 4yrs fighting a Portfolio Recovery Associates case

 by a law firm here in Idaho back in 2010. Magistrate pulled a "sua sponte" after I won first appeal, which means despite the evidence he found for Plaintiff despite no evidence, not answering any of my motions and tons more.  My attorney out of Oregon, Joshua Trigstead sent the attorney collection firm an intent to sue and they paid me instead.My BK got rid of them getting any cash from me.  I contend the law firm is not contracted with Barclay's to  represent them, therefor have no standing, subject mater jurisdiction to participate in arbitration.  Please consider getting ahold of this Oregon Law firm.  He has filed cases for me for several years and despite having collected some thousands of dollars for me, I've never gone to court or even attended a deposition.  Many of these collection criminals and their attorney's won't take you seriously until they see they will be held accountable.  They still pull fast ones such as robo signing, expired or invalid terms and conditions etc., and now they seems to be tossing in a letter with the OC letter head on it saying, "yep, pay whom ever sent this to you." (slight exaggeration) I will continue to watch, thanks.What lies in your debt is spendy-but by far the best info out there for filing and winning federal civil claims against debt collector for FDCPA, FCRA, TCPA etc. The Consumer Financial Protection Bureau remains a good consumer advocate.I had to use an attorney as it all took over my life for a while-nowadays I just recognize the violations and shoot off the letters to Josh for review.  I just wish he's take on the FCRA more, because just like these collection companies don't have true affidavits etc. for court, therefor they also DO NOT have nor show via supporting docs having a permissible purpose to access credit reports.  A repeated violation x 3 major CRA's often means big bucks.

Oh, btw, all debt collectors must register with the CFPB so report them and see what they say...  

wliyd:  https://www.whatliesinyourdebt.com/  ( a person can split the costs of their membership with another)

audio: (dave mack does this talk.)  http://www.talkshoe.com/talkshoe/web/talkCast.jsp?masterId=54318&cmd=tc

Oregon Law Firm I've used and are now using: anyone who might want to run their FDCPA or similar case, just email Don his paralegal first. don@tlgconsumerlaw.com

Tell em Robert Mesch referred you in the subject line-you'll get heard. I don't get a bird dog fee.

 

Good luck

 

Hi - I’m dealing with Barclays because they still own the account. They have not sold it to a JDB. They have hired the listed lawfirm to represent them and collect for them. This includes court and arbitration matters so I don’t believe they need standing.

I’m in CA so contacting a lawyer in Oregon probably isn’t the best option although it sounds as if he assisted you in your case - awesome it worked out in your favor!

 

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On 7/19/2018 at 12:06 AM, Tiglit18 said:

No arbitrator yet just the case manager.

My apologies - you are correct, they asked for a list of people/firms/companies to ensure there is no conflict of interest. 

Still no payment or answer by Barclays - it says if they don’t pay and don’t answer by the filling deadline then the case will continue with the assumption that they don’t agree with my claims. At what point does AAA stop everything due to a lack of payment?

 

You must be patient.  Send in the list of conflicts.  If there are none, I would just name the attorneys involved and Barclay's bank at minimum.  This will only be used for AAA to appoint an arbitrator that doesn't work for or with those same people.

It can take a couple months before AAA closes the case for non payment.  They will send at least 1 if not 2 more notices before that happens.  Barclay's is not a JDB so they will either pay the filing fee or they may contact you to settle when they get the final notice to pay.  They won't just ignore everything like a JDB does because they will want to remain in good standing with AAA as to not jeopardize having to remove them from future contracts.

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32 minutes ago, fisthardcheese said:

You must be patient.  Send in the list of conflicts.  If there are none, I would just name the attorneys involved and Barclay's bank at minimum.  This will only be used for AAA to appoint an arbitrator that doesn't work for or with those same people.

It can take a couple months before AAA closes the case for non payment.  They will send at least 1 if not 2 more notices before that happens.  Barclay's is not a JDB so they will either pay the filing fee or they may contact you to settle when they get the final notice to pay.  They won't just ignore everything like a JDB does because they will want to remain in good standing with AAA as to not jeopardize having to remove them from future contracts.

Just checked and an arbitrator was just assigned today. No answer from Barclays yet. I’m hoping to get a phone call from the lawyer soon - We’ve talked once and he knows I want a walk away. 

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On 7/18/2018 at 10:43 PM, Tiglit18 said:

Hi - I’m dealing with Barclays because they still own the account. They have not sold it to a JDB. They have hired the listed lawfirm to represent them and collect for them. This includes court and arbitration matters so I don’t believe they need standing.

I’m in CA so contacting a lawyer in Oregon probably isn’t the best option although it sounds as if he assisted you in your case - awesome it worked out in your favor!

 

Again, good luck but please understand, any person who's dealt with collections hands on understands when I say, "the hairs on the nape of the neck stand up" upon seeing or hearing a defendant using those same words such as, "I'm dealing with Barclay';s.... " I only ask then, surely you've seen their contract with Barclays, and or the contract that you signed allowing arbitration?

At minimum please consider talking to a consumer law attorney about this company- I certainly wouldn't give them any information whatsoever, particularly bank info. It appears to me that you havn't quite grasped the notion that the debt collection industry are litterally criminal organisations who seem to operate at the state level courts with impunity.

Even a Law Firm falls under the definition of debt collectors under numerous circumstances, ranging from state criminal law, civil procedure and case decisions. A member here, I think the moniker used here was, "1sts step." he will yell you that in his FDCPA win a particular Law Firm, whose name will go unmentioned now, made the admission that they are D.Collectors.

From Nelson & Kinard's home page;  THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
                                                                        ALL CALLS ARE RECORDED AND MAY BE MONITORED FOR QUALITY ASSURANCE.

Reviews on Yelp: https://www.yelp.com/biz/nelson-and-kennard-sacramento

I saw you didn't send a debt validation letter. Did you pull all three major credit reports and review them?  annualcreditreport.com is where I get mine free, annually.

Please allow me to suggest a review all 3, experian, transunion and equifax. Don't review reports on products such as credit karma-not the same. Veryify the "account status" and or "activity designator.". If your alleged Barclay account is contracted by this law firm to collect, your credit reports may say "charged off", but it shouldn't say, "sold or transferred."  BTW if you need any case law or laws, rules and the like CIC looks like a good source although I never rely on one source.I review CFPB., FTC., wliyd, myprivateaudio, dallasdebtdiscussion sso much more.  I use an out of state attorney because there is no such thing as a good consumer attorney in idaho. Worst case scenario I end up in a telephone deposition which hasn't occurred yet.  Again I would't waste 5 minutes anywhere near a state court, and I am a former LEO. 

 

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On 7/1/2018 at 8:11 AM, fisthardcheese said:

Arbitration moves very slow.  However, if you have not yet gotten your initial letter/email from AAA, then you can call them and ask for the status of your case (or confirmation that they have received your filing).

I’ve been doing some homework and I’m trying to mentally prepared for battle. I’m willing and ready to take this all the way through appeals - I’m realistic on my standing being it’s an OC and if anything this is just buying me time to hopefully have a decent settlement offer. I do have some process related questions that hopefully you can help me with.

My understanding is now that an arbitrator has been selected by AAA I must get approval from the arbitrator to add/amend my claim. My initial claim was a generic “other disputes”. I feel as though I need to have a real claim and I’m having trouble identifying one without bringing up the collection suit. As you mentioned before, I don’t want to essentially sue myself by listing the debt in my claim. Any common claims that are typical when dealing with an OC that won’t have me fighting myself?

At this point no payments have been made by the OC nor did they respond with an answer or counter-claim by the deadline early last week.

I also feel I should be requesting an initial conference call with the arbitrator so we are all on the same page. Will they grant this if they have not been paid yet? Should I request it now regardless if payment was made?

If the OC plays along, pays the invoice but doesn’t file a counter-claim will that mean they won’t have to right to continue their debt collection pursuit in court?

Arbitrator fees - in the initial acceptance letter AAA noted the case was designated as a desk arb with a daily arbitrator fee of $1700. I immediately requested an in person hearing but did not get a response. When the arbitrator was selected I noticed that the fee chart changed to $2500 per day. Does that mean they granted my request? 

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@Tiglit18

Please do not pay attention to bob5150.  He does not appear to understand the difference between a plaintiff and the attorney/law firm that represents the plaintiff.

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1 hour ago, BV80 said:

@Tiglit18

Please do not pay attention to bob5150.  He does not appear to understand the difference between a plaintiff and the attorney/law firm that represents the plaintiff.

I was told a long time ago to eat the meat and spit out the bones...totally applies to bobs post ;)

thank you for looking out for this newbie!

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11 minutes ago, Tiglit18 said:

I was told a long time ago to eat the meat and spit out the bones

Great saying! 😀

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