Indy17

Indiana - Motion to dismiss denied - advice super appreciated.

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Have you seen any change in arbitration clause from the years that you have looked at? The one I found (no idea of year) didn't have a small claims exception.

We have found that Discover will arbitrate and lose more than your debt is worth, but it will buy you time, if that helps.

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5 minutes ago, Indy17 said:

Brotherskeeper

 

thanks. I will try to keep my abbreviations to a minimum.

I am reading the small claims rules for Indiana. The PDF is only 23 pages. There is no information of motions or pleadings. So, I am thinking the time to do the motions is at the hearing. I did my original motion in error. I was looking at Trial court rules, Not small claim court rules.

 

Can I get some more info on this? How does that work? Would I not be bound to the 2015 agreement when I signed up for the card?

 Agreements can change over the years. You are bound by the agreement that was in effect when the account was last current.   

 If the agreement was amended between 2015 and 2016, you would be found by the 2016 agreement  because that is when the account was last current.   If the agreement did not change, it doesn’t matter because the  terms in the 2016 agreement would still be the same as the 2015 agreement. 

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4 minutes ago, Goody_Ouchless said:

Have you seen any change in arbitration clause from the years that you have looked at? The one I found (no idea of year) didn't have a small claims exception.

We have found that Discover will arbitrate and lose more than your debt is worth, but it will buy you time, if that helps.

I would be happy to arbitrate if it buys me Time, and helps me avoid legal judgement. Is losing arbitration the same as losing small claims court? Are my arbitration fees limited in JAMS and FAA? Discover would rather lose money in arbitration vs. settling with me for a smaller lump sum amount?

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Just now, Indy17 said:

I would be happy to arbitrate if it buys me Time, and helps me avoid legal judgement. Is losing arbitration the same as losing small claims court? Are my arbitration fees limited in JAMS and FAA? Discover would rather lose money in arbitration vs. settling with me for a smaller lump sum amount?

 There is no guarantee that it will help you avoid a judgment.

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3 minutes ago, BV80 said:

 Agreements can change over the years. You are bound by the agreement that was in effect when the account was last current.   

 If the agreement was amended between 2015 and 2016, you would be found by the 2016 agreement  because that is when the account was last current.   If the agreement did not change, it doesn’t matter because the  terms in the 2016 agreement would still be the same as the 2015 agreement. 

What makes an account current vs default? If it was charged of in 2017, the 2016 agreement is still the one to use?

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Just now, Indy17 said:

What makes an account current vs default? If it was charged of in 2017, the 2016 agreement is still the one to use?

The account was current as long as you were making the required minimum payments on time. Default occurs when you miss a payment.

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17 minutes ago, Brotherskeeper said:

Indy17 When you want to tag a member so that we see it, type @ then the member's name. Usually, a column will pop up with the member's name once you begin to type the name, then you can click on that. If you don't see the "@name" turn blue, you haven't done it correctly, so try again. 

In case it wasn't clear, we get notifications (the bell icon at the header top right, next to the private message envelope icon) when you use the @ with our name. Linking to our profile doesn't let us know you've mentioned us. A member does get notified (bell icon) when you quote from a section of a member's post. 

 

15 minutes ago, Indy17 said:

Thanks, I tried that. I couldn't access anything

 

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If you lose the arbitration, that is the same as losing in court. They simply have to take the arbitration decision to the judge and the courts will rubber stamp it as an official judgement.

The agreement you use is the last one that was issues before the account went into default (you stopped paying on it).

Finally, and this is a big one here, Discover is like AMEX and Capital One. They are an original creditor and they usually follow the consumer into arbitration. While you do all this, you need to be thinking about a settlement and it will be a high about (upwards of about 80% of the debt but you can start at 70% and see what they say). You might buy yourself some time but you will not buy much and you really do not want to get too deep in this case.

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@Indy17 Here's the relevant text from the 2016 agreement:

OTHER IMPORTANT INFORMATION

Default You are in default if:

• you file bankruptcy or another insolvency proceeding is filed by you or against you;

• we have a reasonable belief that you are unable or unwilling to repay your obligations to us;

• you die or are legally declared incompetent or incapacitated;

you fail to comply with the terms of this Agreement or any Agreement with us or an Affiliate, including failing to make a required payment when due, exceeding your Account credit line or using your Card or Account for an illegal transaction. If you are in default, we may declare the entire balance of your Account immediately due and payable without notice.

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8 minutes ago, WhoCares1000 said:

If you lose the arbitration, that is the same as losing in court. They simply have to take the arbitration decision to the judge and the courts will rubber stamp it as an official judgement.

The agreement you use is the last one that was issues before the account went into default (you stopped paying on it).

Finally, and this is a big one here, Discover is like AMEX and Capital One. They are an original creditor and they usually follow the consumer into arbitration. While you do all this, you need to be thinking about a settlement and it will be a high about (upwards of about 80% of the debt but you can start at 70% and see what they say). You might buy yourself some time but you will not buy much and you really do not want to get too deep in this case.

@WhoCares1000 Thanks, They have offered my a lump sum of $2700 already. I unfortunately do no have that money. I could have it soon. This is taking alot of my time, and I agree maybe it is not the best to get deep into. I just really feel like a needed more time to get my stuff in order. I was served papers on FEB 7, and the hearing is already nearly here on MAR 23. Indiana has tough laws. If they win judgment against me they could take a ton of money from me via garnishment. Judgments last 20 years. Looking at the discover contract, it looks like that have the right to pursue attorney fees. I don't want them to start going for that. They are not pursuing that at the moment.

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2 hours ago, Indy17 said:

They have offered my a lump sum of $2700 already. I unfortunately do no have that money. I could have it soon

It sounds like you have a genuine interest in working something out with them, so it may not hurt to contact their lawyer and see if they can work with your timeline. If they are totally inflexible, you can certainly mention that you are still under the constraints of your own timeline and that arbitration better suits your current situation.

It would be interesting to see how they would proceed if they knew you weren't pursuing arbitration just out of spite.

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@Indy17 If you are attempting to buy time by getting out of court and going into arbitration as a strategy for later settlement, here is some language to consider:

https://www.consumerfinance.gov/credit-cards/agreements/issuer/discover-bank/

Fees and Costs.

If you wish to begin an arbitration against us but you cannot afford to pay the organization’s or arbitrator’s costs, we will advance those costs if you ask us in writing. Any request like this should be sent to Discover, PO Box 30421, Salt Lake City, UT 84130- 0421. If you lose the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If you win the arbitration, we will not ask for reimbursement of money we advanced. Additionally, if you win the arbitration, the arbitrator may decide that you are entitled to be reimbursed your reasonable attorneys’ fees and costs (if actually paid by you).

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44 minutes ago, Goody_Ouchless said:

It sounds like you have a genuine interest in working something out with them, so it may not hurt to contact their lawyer and see if they can work with your timeline. If they are totally inflexible, you can certainly mention that you are still under the constraints of your own timeline and that arbitration better suits your current situation.

It would be interesting to see how they would proceed if they knew you weren't pursuing arbitration just out of spite.

There is an interesting experience I had, and I know of at least one person on that other board who had the same experience.

In both of our cases, we made a settlement offer to Discover.  They declined.  Mine was right when I filed in JAMS but before the fees were paid.  I think his were about the same time.

In both of our cases, we made exactly the same settlement offer to Discover between the time they got the bill for the hearing, and when they had to pay the bill.  

In both of our cases, Discover accepted exactly the same settlement offer they had previously rejected.  

Of course, YMMV.  These are just two data points.  Still, since the OP can't work out an agreement with Discover, here is what I would do in that situation:

1.  Offer what I can afford, but put a time limit to that offer so as not to impede the case in JAMS.  Write the JAMS files in the meantime.

2.  If the offer is rejected or the time expires, file in JAMS.

3.  Make the same offer to Discover after filing in JAMS.

4. If they have rejected or ignored the offer twice, save up some money while the case goes through discovery, conference calls, etc.  

5.  When it is time for the hearing, offer Discover what you can afford to pay.  

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38 minutes ago, BackFromTheDebt said:

 

5.  When it is time for the hearing, offer Discover what you can afford to pay.  

 

@BackFromTheDebt   My hearing is March 23. Discover offered my the lump sum of $2700 out of $3700. I can offer a lump sum of about $1500 max. I could pay up to around $150 a month. I was thinking of offering a lump sum of $1200 and then $125 a month for a year. I have money tied up in a partnership LLC. I have a good junk of change sitting in the business account. It is on hold because I am currently trying to figure out the companies future with a business partner. I didn't really want to take money out prematurely just to settle this. Also I may sell the company - which would be a major windfall. That would be a couple months away at least.

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@Indy17

This is just food for thought.

Some of us have noted that we don't have a crystal ball and cannot predict outcomes.  @BackFromTheDebthad a positive outcome.   However, he claims he had counterclaims.   As long as those counterclaims were valid, they could have been a reason for Discover's decision to settle.   But we just don't know.

While arbitration could result in a positive outcome for you, we can't guarantee it.  There is no way of knowing whether Discover would settle for terms agreeable to you or take arbitration all the way to the end with an award by the arbitrator in someone's favor. 

Just know that if you start the arbitration process and Discover agrees to arbitrate, there's no way of knowing how long the process will last and the resulting outcome.

You must decide what is best for you. 

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6 hours ago, BackFromTheDebt said:

Of course, YMMV.  These are just two data points.  Still, since the OP can't work out an agreement with Discover, here is what I would do in that situation:

1.  Offer what I can afford, but put a time limit to that offer so as not to impede the case in JAMS.  Write the JAMS files in the meantime.

2.  If the offer is rejected or the time expires, file in JAMS.

3.  Make the same offer to Discover after filing in JAMS.

4. If they have rejected or ignored the offer twice, save up some money while the case goes through discovery, conference calls, etc.  

5.  When it is time for the hearing, offer Discover what you can afford to pay. 

This is exactly how I would proceed with an OC.

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On 3/14/2018 at 9:37 AM, BackFromTheDebt said:
 

Yes.

 

In fact, in some cases that is better.  When you file your MTC, it sometimes helps if the case is already in JAMS.

I disagree.  To me, it is nothing but potential headaches to have a JAMS case started before an MTC is granted. (Unless that JAMS case was started prior to being sued, but that's another story).

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3 hours ago, fisthardcheese said:

I disagree.  To me, it is nothing but potential headaches to have a JAMS case started before an MTC is granted. (Unless that JAMS case was started prior to being sued, but that's another story).

I must admit my statement was NOT based on my personal experience.

I have had 4 cases in JAMS with 5 accounts:  2 of them were filed after the motion, the other two were preemptive, and were filed before the suit.

I had seen cases where judges did not grant an MTC because the case was not already in JAMS, and I was basing my comments on the experience of others.

Perhaps you can tell us why you found filing before an MTC to no be worth the headaches.  I am not saying this to be sarcastic, I really am interested.  

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On 3/19/2018 at 10:49 AM, BackFromTheDebt said:
 

I must admit my statement was NOT based on my personal experience.

I have had 4 cases in JAMS with 5 accounts:  2 of them were filed after the motion, the other two were preemptive, and were filed before the suit.

I had seen cases where judges did not grant an MTC because the case was not already in JAMS, and I was basing my comments on the experience of others.

Perhaps you can tell us why you found filing before an MTC to no be worth the headaches.  I am not saying this to be sarcastic, I really am interested.  

I believe the recent case (or 2) of a judge wanting the JAMS case to be started before granting the MTC are just a statistical anomaly from Judges who never had to deal with this issue before.  There is nothing in case law suggesting an arbitration case must already be pending, in fact, it is quite the opposite and many circuits plus SCOTUS have said the only requirement is that a valid arbitration clause be present in a contract. That is all.

Way more often than a judge who doesn't understand the process, is the timing issue. Whether it is an attorney attempting to stall to derail a consumer or just the courts moving at a snail's pace, we have seen JAMS (or AAA) close an arbitration case due to the JDB's non payment before the MTC could be granted.  After the case is closed, the JDB attorney tends to argue that the arbitration case is already closed, or they may argue that JAMS closed the case so it must be moved to AAA - or any other number of silly arguments but that the judge may just buy into due to the action of the arbitration case being closed.  We have also seen several cases where the judge will actually dismiss the court case because the JAMS case is open and pending.  This always sounds good, but then becomes problematic when they JDB doesn't pay, JAMS closes the case, and the consumer can't get a final settlement  (release) or dismissal with prejudice.  I like having the court stay the case to have another authority to answer to when the JDB fails to pay up in those cases and to help facilitate either a dismissal with prejudice or a settlement agreement that releases the consumer of all obligations regarding the alleged debt.

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7 hours ago, fisthardcheese said:

I believe the recent case (or 2) of a judge wanting the JAMS case to be started before granting the MTC are just a statistical anonymously from Judges who never had to deal with this issue before.  There is nothing in case law suggesting an arbitration case must already be pending, in fact, it is quite the opposite and many circuits plus SCOTUS have said the only requirement is that a valid arbitration clause be present in a contract. That is all.

Way more often than a judge who doesn't understand the process, is the timing issue. Whether it is an attorney attempting to stall to derail a consumer or just the courts moving at a snail's pace, we have seen JAMS (or AAA) close an arbitration case due to the JDB's non payment before the MTC could be granted.  After the case is closed, the JDB attorney tends to argue that the arbitration case is already closed, or they may argue that JAMS closed the case so it must be moved to AAA - or any other number of silly arguments but that the judge may just buy into due to the action of the arbitration case being closed.  We have also seen several cases where the judge will actually dismiss the court case because the JAMS case is open and pending.  This always sounds good, but then becomes problematic when they JDB doesn't pay, JAMS closes the case, and the consumer can't get a final settlement  (release) or dismissal with prejudice.  I like having the court stay the case to have another authority to answer to when the JDB fails to pay up in those cases and to help facilitate either a dismissal with prejudice or a settlement agreement that releases the consumer of all obligations regarding the alleged debt.

Excellent points.

 

I had a case with Cap 1 go into arbitration, and they never paid the fees.  

The case was dismissed w/o prejudice before it was closed in JAMS.  Had I known then what I know now, I would've moved the case be dismissed with prejudice.  Anyway, Cap 1 never bothered me again.  My county has some good judges, and the original judge threw out their affidavit.  So, if they had been stupid enough to bring the case up again, any judge in that county would've thrown in out.  

 

However, I can imagine that Cap 1 might've tried again with a Mayberry judge, if this had been a different county or state.  

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46 minutes ago, BackFromTheDebt said:

Excellent points.

 

I had a case with Cap 1 go into arbitration, and they never paid the fees.  

The case was dismissed w/o prejudice before it was closed in JAMS.  Had I known then what I know now, I would've moved the case be dismissed with prejudice.  Anyway, Cap 1 never bothered me again.  My county has some good judges, and the original judge threw out their affidavit.  So, if they had been stupid enough to bring the case up again, any judge in that county would've thrown in out.  

 

However, I can imagine that Cap 1 might've tried again with a Mayberry judge, if this had been a different county or state.  

I would not be dissatisfied with a simple dismissal (without prejudice). It is just that if I can get it WITH prejudice and use that to remove the TL from my credit reports, among other things, I would push for it if I can.  However, even a dismissal without usually never sees another lawsuit again - it's just a matter of all the other side issues that it could help with.

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