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Getting sued in Wisconsin by PRA for a Synchrony BP card and just when I thought I had my answer ready to go, I read on here not to include any affirmatve defenses. I've been reading everything I can on how to answer this complaint and most of what I have written has been copy and pasted. Hoping someone can take a look at it and let me know if I should add or delete anything. 

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I didn't see lack of jurisdiction as one of your affirmative defenses.  I've heard Synchrony has a very consumer-friendly arbitration agreement.

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You are going on the wrong direction.  I recognize some of the stuff you cut and pasted as coming either from this site, or from the other site (debtorboards.com).  Some of it is no longer applicable.  

 

There are a few issues.

I believe that courts have ruled that 425.409(2) doesn't necessarily apply to junk debt buyers, which damages that part of the case.  An attorney in Madison, Briane Pagel, used to have an excellent blog article about this subject.  Unfortunately, he changed law firms since that time, and I can no longer find his old blog.  Pity.  This case was about 5 years ago, which was a real boon to the JDBs in Wisconsin, making it much easier for JDBs to prevail in Wisconsin courts.  

What that means -- 425.109(2) requires evidence of the debt back to zero balance.  A JDB will almost never have this, but the courts no longer care.  Nor do the JDBs have to have the stuff verified by a qualified person, as per the Palisades case, since they don't need the stuff anyway.  

Not only that, but Wisconsin courts have ruled, erroneously in my opinion, that the Notice of Right to Cure is no longer required once the debt is charged off.  

What that means -- A lot of the stuff that was great for consumers in Wisconsin is gone. Most of the stuff you have is useless, except for the Fifth Defense, lack of standing, which these days they can probably prove.

 

Look at LaneBlane's post.  About the only way to beat a JDB with a Synchronicity account is to take them to arbitration.

What that means -- include a defense about lack of jurisdiction because you elect arbitration.  At the same time you file this, file a Motion to Compel arbitration with the court.  

Look up your court procedures.  You didn't mention whether this is Circuit Court or Small Claims, but from the form I am assuming small claims.  You need to find out the rules in your county for scheduling motions.  For example, MOST, but not all, counties in Wisconsin require you to schedule a motion hearing when you schedule a motion, esp., in Circuit Court.  

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I agree with abandoning your plan to litigate this in court. Arbitration is the way to go with a JDB on a synchrony debt! They have dismissed every time. 

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1 hour ago, BackFromTheDebt said:

Look at LaneBlane's post.  About the only way to beat a JDB with a Synchronicity account is to take them to arbitration.

BAD example.  LaneBlane is in Texas and not in consumer arbitration.  It is also over loans and not credit card debt.  The OP needs to read threads from WISCONSIN on arbitration and other states specific to arbitration on credit card cases.

3 hours ago, sugarray said:

I read on here not to include any affirmatve defenses.

You misunderstood.  You cannot do what you did which is to list EVERY affirmative defense whether it applies or not.  The bulk of what you used is outdated and no longer applies.  The Statute of Frauds defense in a credit card case is only allowed in Utah.  As has already been said much has changed in the past decade since the recession started and ended and that list of defenses no longer applies in most cases.  The JDBs and creditors have adjusted their attack and you must adapt with them.

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Thanks for the replies. I'll delete the current defenses and add a new one for lack of jurisdiction, then try to figure out when and how to file a motion for arbitration. I forgot to add the complaint in my last post. Are my answers ok?

 

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I would file an answer denying everything and only list the affirmative defense of lack of subject matter jurisdiction due to a private arbitration clause in the contract.

I would file a Motion to Compel Arbitration.  Examples of this are in the link in my signature below.

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8 hours ago, Clydesmom said:

BAD example.  LaneBlane is in Texas and not in consumer arbitration.  It is also over loans and not credit card debt.  The OP needs to read threads from WISCONSIN on arbitration and other states specific to arbitration on credit card cases.

 

I don't know why you think my post was so bad.  It referenced very specific Wisconsin statutes and very specific Wisconsin court cases.  

I know what I am talking about.  @fisthardcheese can verify that, and I will say no more.  

LaneBlane's post was correct.  The OP should move this into arbitration.  

However, looking at the Wisconsin threads would be a great idea.  The great arbitrators from Wisconsin are not permitted to post anymore,  but many of their old threads survive.

Another good place to look is www.debtorboards.com   There are several experts on Wisconsin arbitration on that forum, who left when they couldn't post here anymore.    Look at the threads from trueq, JReed and BrokeBob.  All three of them have faced this particular law firm in arbitration.  You won't see anything recent on this forum, but some of the old stuff is pure gold.  There are also threads by them in debtorboards, some of which are very recent.  

2 hours ago, fisthardcheese said:

I would file an answer denying everything and only list the affirmative defense of lack of subject matter jurisdiction due to a private arbitration clause in the contract.

I would file a Motion to Compel Arbitration.  Examples of this are in the link in my signature below.

^^^^

This

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57 minutes ago, BackFromTheDebt said:

I don't know why you think my post was so bad.

Wow.  Your reading comprehension is terrible.  I said LaneBlane as an example is BAD not your entire post.

The problem with LaneBlane is they are not in consumer arbitration.  Commercial is VERY different and they are suddenly posting all over here giving advice on their limited knowledge based on one state.  Often it is wrong. 

I don't disagree that arbitration is the way to go.  

59 minutes ago, BackFromTheDebt said:

Another good place to look is www.debtorboards.com   There are several experts on Wisconsin arbitration on that forum, who left when they couldn't post here anymore.    Look at the threads from trueq, JReed and BrokeBob.

Actually I looked up Trueq cases and he LOST.  He isn't the guru they paint him out to be and if you read BrokeBob's current posts even he admits that what worked for him in Wisconsin is not likely to work now because they have changed their pattern in court.  The major problem with DB is that they are stuck in tactics that worked 10 years ago and refuse to change.  

Stop and ask yourself WHY those members are no longer allowed to post here before you tell people to follow them around.  

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To amend what I said in the last post -- the MOST important thing is what fisthardcheese suggested. 

 

The defense that they don't own the debt is permissible, but not mandatory.

Realize this.  Probably the counties in Wisconsin with the most consumer-friendly judges are Dane and Milwaukee, in that order.  Even in those counties. the alleged debtor will often get the shaft in small claims, because the magistrate doesn't really understand the law.  

So, the magistrate may not allow the MTC, and may rule against you.  

If that happens, don't panic.  

In Wisconsin, if you lose in small claims, you can automatically appeal to Circuit Court and try the case ab initio before a real judge.  

Read this next line carefully:

In Wisconsin, you do NOT need a reason to appeal to Circuit Court.  You just appeal.

So, if the magistrate in small claims does NOT allow your MTC, you have a second chance before a judge.  

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@sugarray Here's a recent Wisconsin Supreme Court decision:

First Weber Group., Inc. v. Synergy Real Est. Group., LLC, 361 Wis.2d 496, 526-27, 860 N.W.2d 498 (2015)

https://scholar.google.com/scholar_case?case=16955896900445883636&q=First+Weber+Grp.+Inc.+v.+Synergy+Real+Estate+Grp.+LLC.&hl=en&as_sdt=4,50 

¶ 24 Wisconsin has a "policy of encouraging arbitration as an alternative to litigation...." Kemp v. Fisher, 89 Wis.2d 94, 100, 277 N.W.2d 859 (1979). "The Wisconsin Arbitration Act embodies this state's clearly established public policy to enforce agreements to arbitrate." Cirilli, 322 Wis.2d 238, ¶ 11, 776 N.W.2d 272(citation omitted). "[A]rbitration is meant to be a swift and inexpensive process that is guided by a contractual agreement." Employers Ins. of Wausau v. Jackson, 190 Wis.2d 597, 611, 527 N.W.2d 681 (1995). Indeed, "the goal of arbitration is `to resolve the entire controversy out of court without the formality and expense that normally attaches to the judicial process.'" Borst v. Allstate Ins. Co., 2006 WI 70, ¶ 61, 291 Wis.2d 361, 717 N.W.2d 42 (quoted source omitted).

¶ 25 In an action to compel arbitration, a court presumes that its role is limited to determining whether the parties agreed to arbitrate the subject matter of the dispute at issue. See Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis.2d 27, 37-39, 586 N.W.2d 41 (Ct.App.1998). When exercising that role, a court employs a "strong presumption" that the parties agreed to arbitrate the subject matter of the dispute at issue when "the contract in question contains an arbitration clause." Cirilli, 322 Wis.2d 238, ¶ 14, 776 N.W.2d 272 (citing Kimberly Area Sch. Dist., 222 Wis.2d at 39, 586 N.W.2d 41).

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5 minutes ago, Clydesmom said:

Wow.  Your reading comprehension is terrible.  I said LaneBlane as an example is BAD not your entire post.

The problem with LaneBlane is they are not in consumer arbitration.  Commercial is VERY different and they are suddenly posting all over here giving advice on their limited knowledge based on one state.  Often it is wrong. 

I don't disagree that arbitration is the way to go.  

Actually I looked up Trueq cases and he LOST.  He isn't the guru they paint him out to be and if you read BrokeBob's current posts even he admits that what worked for him in Wisconsin is not likely to work now because they have changed their pattern in court.  The major problem with DB is that they are stuck in tactics that worked 10 years ago and refuse to change.  

Stop and ask yourself WHY those members are no longer allowed to post here before you tell people to follow them around.  

I have communicated with all three of the people I mentioned recently by PM.  I know their records in court and arbitration far better than you do.  I know some of them have lost in court, but NEVER in JAMS.  They have beaten this particular law firm in JAMS.  In Wisconsin.  

I had a conversation once with the very top consumer attorney in the state of Wisconsin, Briane Pagel.  Mr. Pagel told me trueq is a legal genius, and that many of the strategies Mr. Pagel uses were learned from trueq.  In fact, trueq taught the arbitration strategy to Mr. Pagel.  

I know why they were banned, and you don't.  You shouldn't talk about things you obviously have no understanding about.  I would trust people who have a perfect record in JAMS against this law firm in the state in question over someone who does not.  

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Thanks for all the great info everybody. I'll be preparing the answers, MTC and affidavit today. I also plan on talking to the clerk of courts to find out exactly what and when I can file these. I was thinking about sending a final settlement offer to PRA's Attorney as well. Is this a good idea? My hope would be that they would just accept it and dismiss the case with prejudice when they receive my answer to the summons and I can move on to the next one which I just learned was also bought by PRA and I have a feeling will be more difficult.

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2 hours ago, sugarray said:

Thanks for all the great info everybody. I'll be preparing the answers, MTC and affidavit today. I also plan on talking to the clerk of courts to find out exactly what and when I can file these. I was thinking about sending a final settlement offer to PRA's Attorney as well. Is this a good idea? My hope would be that they would just accept it and dismiss the case with prejudice when they receive my answer to the summons and I can move on to the next one which I just learned was also bought by PRA and I have a feeling will be more difficult.

Also, check with the court about the hearing procedures.  For Circuit Court, in MOST counties you would need to schedule a hearing.  For small claims court, the hearing may just be part of the assigned call back date.  

 

As for settlement?

It depends on your comfort level.  

Getting the case out of court and into arbitration is pretty much a win.  As in, you wind up paying $0 on the account.  I personally never made a settlement offer on anything which had an arbitration agreement, and I never lost in arbitration.  

 

What is the OC for the other account with PRA?  If that one has no arbitration agreement, you will probably have to settle, and it would be better to settle before they file in court rather than later.  Maybe save the money you were going to use to settle this account for a settlement with the other account.  

There is also the "don't mess with this guy" list.  Sometimes CAs, JDBs and even attorneys hand off cases if they know the target is strong.  They make their bread and butter off the easy cases, and don't like the tough ones.  There is a certain law firm that was assigned three of my accounts.  After I beat them for the first two, they contacted me about a third one.  I called them up and asked them nicely to hand off the case, and did they really want to mess with me again.  They dropped that case like a hot potato.  

 

Which means -- if you settle with PRA on the first case, the second one will cost you.  If you beat them on the first case, they might sell off the second one, or just drop it, or settle for less money since they don't want to spend the $$$$ fighting against someone who already beat them.  

One time, many years ago, I was playing  in an on-line tournament against the best female player in the world in a certain game.  Metaphorically, she had me on the ground with her foot on my throat.  Then she eased up on me.  I came back to beat her.  It was a double-elimination tournament, and I beat her again a second time to knock her out of the tournament.  All because she didn't close in on the kill.

YOU have PRA on the ground with your foot on their throat as soon as a magistrate or judge gives signs off on the MTC.  Why do you insist on taking off your foot and giving them a break?  They just see that as weakness.  And when they see weakness, they go for the jugular.  YOUR jugular.  

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That makes sense, I won't try to settle on this one. I guess I'm just starting to feel a little uncomfortable about being in front of a judge and not completely knowing what I'm doing or how to respond if I'm put on the spot.

 

The other OC is US Bank and they do have an arbitration clause which starts: 

Arbitration Provision:
(a) You agree that either you or we can choose to have binding arbitration 
resolve any claim, dispute or controversy between you and us that arises 
from or relates to this Agreement or the Account and credit issued 
thereunder (individually and collectively, a "Claim"). This does not apply to 
any Claim in which the relief sought is within the jurisdictional limits of, 
and is filed in, a small claims court.

Does this mean after JDB files to sue it's too late for me to file for arbitration?

 

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52 minutes ago, sugarray said:

Does this mean after JDB files to sue it's too late for me to file for arbitration?

Only if they file the case in "small claims" court. Otherwise, you can use arbitration, even after they sue. 

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41 minutes ago, sugarray said:

That makes sense, I won't try to settle on this one. I guess I'm just starting to feel a little uncomfortable about being in front of a judge and not completely knowing what I'm doing or how to respond if I'm put on the spot.

 

The other OC is US Bank and they do have an arbitration clause which starts: 

Arbitration Provision:
(a) You agree that either you or we can choose to have binding arbitration 
resolve any claim, dispute or controversy between you and us that arises 
from or relates to this Agreement or the Account and credit issued 
thereunder (individually and collectively, a "Claim"). This does not apply to 
any Claim in which the relief sought is within the jurisdictional limits of, 
and is filed in, a small claims court.

Does this mean after JDB files to sue it's too late for me to file for arbitration?

 

Yes, if the amount is less than $10,000

 

 

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2 minutes ago, Harry Seaward said:

Only if they file the case in "small claims" court. Otherwise, you can use arbitration, even after they sue. 

Thanks. I'm sure they would file in small claims since it's under the $10,000 limit. 

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3 hours ago, sugarray said:

Thanks. I'm sure they would file in small claims since it's under the $10,000 limit. 

Is that court actually called "small claims"?

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30 minutes ago, Harry Seaward said:

Drat. That knocks arbitration out. I'd still take a stab at it on the chance they won't make the small clams argument. 

Why would that knock out arbitration?

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@sugarray Is this a Synchrony BP account? If so, does your agreement have this language?

"2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in
that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require
you to arbitrate."

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