williams4

Being sued Unifund

Recommended Posts

58 minutes ago, williams4 said:

For the FDCPA and TCPA claims I need more information from them to "prove" it.  When I submit my brief with the evidence I have (which won't be enough to prove until I ask for a log of their phone records of calls to me) Is is my job to say something in my brief that I need discovery time to obtain the records? Because as of right now, there isn't a time scheduled for discovery.  I am just wondering "when" discovery comes into play and if I need to request it in my brief or how I do that?

Submit the proof you have and stop worrying about it. YOU NEED TO SUBMIT THIS ON TIME AND SEE WHAT THE OTHER SIDE REPLIES WITH BEFORE YOU KNOW ANYTHING ELSE.

7 minutes ago, Goody_Ouchless said:

What happens when the arbiter finally realizes, as he may already have, that Unifund doesn't know where they are or what they are defending? Can they continue the proceedings, with that realization?  

When consumers show up to court very unaware of procedures and laws, do these attorneys cut them any slack and do judges allow that to be a defense?  Seems like the same situation to me.

  • Like 1

Share this post


Link to post
Share on other sites
3 hours ago, Harry Seaward said:

You don't have a call log on your cell phone? Arbitration doesn't usually allow 'invasive' discovery, so proving this is going to be difficult if you don't have your own evidence. 

Call log, yes. I just have a snapshots from my actual phone. My phone bill doesn’t show missed calls that aren’t answered. I was going to get everything else in discovery. 

Share this post


Link to post
Share on other sites
2 hours ago, williams4 said:

I was going to get everything else in discovery. 

Umm NO.  I have sued a CA on TCPA violations and the burden of proof is on you.  You have to have a solid foundation going in and the problem you have is that you have a lot of calls but only a suspicion they came from them.  You cannot use internet information like 1-800-Notes etc. as proof they called you.  That kind of evidence is hearsay.

4 hours ago, fisthardcheese said:

When I submit my brief with the evidence I have (which won't be enough to prove until I ask for a log of their phone records of calls to me)

To the OP:  they will not produce a list of calls that matches your phone.  Then what?  You have to have enough proof FIRST on a claim like this.  You can't just shoot in the dark.

Share this post


Link to post
Share on other sites
27 minutes ago, Clydesmom said:

but only a suspicion they came from them.  

I called the number and it was them.

 

Share this post


Link to post
Share on other sites
20 hours ago, Harry Seaward said:

In my opinion, the much bigger problem you have right now is unifund's lawyer's ignorance. If you you don't find a way to make her understand what is going on, she is going to take this case all the way to a judgement against you.

Glad I was scrolling back through reading comments. Very good point!  I will make sure I make it clear in my brief. I wasn’t “too” worried since I know my case is not frivolous, but yes, you are correct, I need to make sure SHE is clear so she doesn’t just keep paying thinking she is getting all these fees back from me anyway. 

Share this post


Link to post
Share on other sites

I know everyone keeps saying stop worrying about the "frivolous" thing.  Some have me worried I do not have enough "Solid" information going in for the FDCPA claim. (I am still bringing this in)  My arbitration clause in my credit card agreement says "you or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your Account, a previous related Account or our relationship (called Claims)  When I filed my AAA claim, I put FDCPA violation and I have asked for proof Unifund owns my account but failed to do so.  I was thinking I would be able to describe my FDCPA claim AND describe the I have asked for proof (two different things) Wouldn't the "I have asked for proof" be a dispute? Even though they are not breaking any laws or anything, the fact still remains I specifically asked for something they didn't send it and now I am bringing this dispute between us to arbitration as my credit card agreement states I can do.  This I can prove 100%, solid evidence, coming in that this happened.  Or did I mess up because you can only put one "claim" in that box?  As @Harry Seaward had mentioned, I need to make it clear in HER head she cannot put her arbitration fees back on me so she doesn't continue to pay the fees because she thinks she will get them back anyway.   My thinking was in my brief I can lay this out to clearly show Unifund, I can arbitrate any any claim, dispute or controversy, this is not frivolous, therefore I am not paying your arbitration cost.  Even when I submit my brief, she may still look at the FDCPA claim I have and "think" its frivolous or that she "thinks" she has a good chance of arguing it's frivolous going off what evidence I am bringing.  I am now realizing “I” may have totally screwed this up since I put 2 claims in the box. But now I realize I don't even know if I was allowed to put more that one dispute in this box. When I was filing out my aaa form I wasn’t putting much thought into it because it just said “briefly descibe your Dispute” 

Share this post


Link to post
Share on other sites

@williams4 What concerns me most is mounting a strong argument against the joining of the $22K as a counterclaim. You don't want her "ineptitude" to result in her getting a $25K award in a rushed process where comingled evidence may create a presumption. If you research exemplars of attorney-prepared complaints for the specific FDCPA violations you're claiming, coupled with the evidence you've got so far as Fist and Harry advised, you'll likely have a "plausible" claim, rather than an prevailing one. FDCPA claims require carefully prepared allegations. (I am not a lawyer.) The dispute over Unifund's legal ownership of the subject account is not frivilous.  

  • Thanks 1

Share this post


Link to post
Share on other sites

Lack of evidence of a claim doesn't inherently make it frivolous. Frivolity means you have no basis at all for the claim. Your own testimony that you saw numbers in your phone, returned the call and discovered the called party was Unifund is evidence. It's not enough to prevail on the claim if Unifund denies making the calls, but it absolutely pushes you past the frivolous threshold. This is why we keep telling you to quit worrying about "frivolous". You're not in that camp. 

The lawyer's ignorance over the fees is IMO a much bigger concern with potentially catastrophic results. 

  • Like 2
  • Thanks 1

Share this post


Link to post
Share on other sites
7 minutes ago, Harry Seaward said:
 This is why we keep telling you to quit worrying about "frivolous". You're not in that camp. 

Got it! No more talk/worrying over “frivolous” anymore. I promise this time! Lol

Share this post


Link to post
Share on other sites
16 hours ago, fisthardcheese said:

When consumers show up to court very unaware of procedures and laws, do these attorneys cut them any slack and do judges allow that to be a defense?  Seems like the same situation to me.

Yes, but this isn't court. Arbitration exists for the purpose of Dispute Resolution and I suspect they are bound by some code of ethics that prevents them from knowingly proceeding when it's clear one party is unaware of the Dispute that is being Resolved.

 

Share this post


Link to post
Share on other sites
1 hour ago, Harry Seaward said:

The lawyer's ignorance over the fees is IMO a much bigger concern with potentially catastrophic results. 

Is this something that should be brought up now, perhaps for it's own call/hearing - something to get "on the record," that this is a Consumer Arbitration, with no further financial exposure to said Consumer? Just to avoid the Discover fiasco?

1 hour ago, Brotherskeeper said:

What concerns me most is mounting a strong argument against the joining of the $22K as a counterclaim. You don't want her "ineptitude" to result in her getting a $25K award in a rushed process where comingled evidence may create a presumption

Seems highly unlikely. Isn't this akin to taking Best Buy to arbitration over violations to a service agreement for a TV and having Best Buy try to use that proceeding to go after late payments on a toaster oven?

 

  • Like 1

Share this post


Link to post
Share on other sites
6 minutes ago, Goody_Ouchless said:

Isn't this akin to taking Best Buy to arbitration over violations to a service agreement for a TV and having Best Buy try to use that proceeding to go after late payments on a toaster oven?

Yes, and it's a $22,000 toaster oven! 

Share this post


Link to post
Share on other sites
8 minutes ago, Goody_Ouchless said:

Is this something that should be brought up now, perhaps for it's own call/hearing - something to get "on the record," that this is a Consumer Arbitration, with no further financial exposure to said Consumer? Just to avoid the Discover fiasco?

 

All this is on the record.  She sent her answer/counterclaim and I didn't get it until one week before the initial Preliminary Hearing.  I quickly sent in my objections (she is trying to combine etc.)  So all this mess came up at the Preliminarily hearing.  She told the arbitrator at the Preliminary hearing  that yes she is fully aware there are two cases, claimed this is for the 22K and only the 22K, and was very adament she was not trying to combine cases.  I told the arbitrator she has documents on two different cases and she kept saying she didn't.   He very clearly asked the Respondent so you are saying there is NOTHING in your answer that is in reference to the 3K account.  There was a hearing that we tried to get everything cleared up but didn't.  So that is were we are now.

Share this post


Link to post
Share on other sites
25 minutes ago, Goody_Ouchless said:

 

Seems highly unlikely. Isn't this akin to taking Best Buy to arbitration over violations to a service agreement for a TV and having Best Buy try to use that proceeding to go after late payments on a toaster oven?

 

There is certainly a chance she will be able to get these cases combined.  My written objection (combining cases) said something along the lines of  commingling of evidence and information leads to leads to confusion and a mixing of evidence between the two accounts.  She wasn't arguing that she wanted to combine cases. She kept saying she wasn't trying to, despite me pointing out her evidence clearly has documents on two different accounts.  She kept calling me a liar and she wasn't even trying to combine these cases.  So I am hoping that once everything is figured out and she TRIES to combine these cases, the arbitrator will say no because she has already SHOWN it leads to confusion and mixing of evidence.  Not saying he won't say yes to combining, I am just saying he is fully aware of everything going on.  As of right now, she "claims" she isn't trying to combine them. 

Share this post


Link to post
Share on other sites
15 minutes ago, williams4 said:

He very clearly asked the Respondent so you are saying there is NOTHING in your answer that is in reference to the 3K account.

What was her response? 

And, is that true that there is nothing in her answer to your claim on the $3K account? 

 

Share this post


Link to post
Share on other sites

@fisthardcheese Getting ready to file asking to add the TCPA violation.  My husband was an "authorized user" so they were calling his phone too.  Does that C&D mean stop calling ANYONE to try to collect on this?  And if it does, can I even add violations for the calls to his number since he is not a party in this dispute? The account is JUST in my name and husband is authorized user and NOT a cosigner. I am thinking I can't add his but wanted to make sure I wasn't missing something and I can. 

Share this post


Link to post
Share on other sites
17 minutes ago, Brotherskeeper said:

What was her response

 

At this point we were on the phone for the hearing.  Her response she said no, and that "I" was lying.  (in my written objection I specifically pointed out which exhibits she referenced in her response and which account number they show.  (Exhibit a, b, c account number XXX Exhibit d, e, f account number YYY) And I pointed out again when we were on the phone. She kept saying no, shes lying.

17 minutes ago, Brotherskeeper said:

 

And, is that true that there is nothing in her answer to your claim on the $3K account? 

 

Yes, she commingled the two accounts to call my claim frivolous.

Share this post


Link to post
Share on other sites
3 minutes ago, williams4 said:

Yes, she commingled the two accounts to call my claim frivolous.

In her written response as Respondant does she assert that the $3K account was part of the pool sold to Pilot that also included the $22K account? Is she trying to piggy back that purchase and sales agreement as "proof" for the $3K? 

I may be wrong, but how do the professional code of conduct and/or the AAA rules allow her to call you a "Liar?" 

Share this post


Link to post
Share on other sites
Just now, Brotherskeeper said:

In her written response as Respondant does she assert that the $3K account was part of the pool sold to Pilot that also included the $22K account? Is she trying to piggy back that purchase and sales agreement as "proof" for the $3K?

No.  I reread her "response" again to make sure, but she does not.

 

11 minutes ago, Brotherskeeper said:

I may be wrong, but how do the professional code of conduct and/or the AAA rules allow her to call you a "Liar?" 

I need to look into this and see. 

Share this post


Link to post
Share on other sites
15 minutes ago, Brotherskeeper said:

In her written response as Respondant does she assert that the $3K account was part of the pool sold to Pilot that also included the $22K account? Is she trying to piggy back that purchase and sales agreement as "proof" for the $3K?

In one of her rants about how she is not trying to combine these two accounts she even pulled up my 3K account on her computer and said "All this account shows is a few letters we sent" (which are the letters she included in her response!!) But she was adamant those letters were not in her response, when clearly they were.  All it would take is for her to take the time to look at the exhibits she submitted with her response to realize they are in there.

Share this post


Link to post
Share on other sites
1 hour ago, williams4 said:

All this is on the record.

I'm not referring to the cases, I'm referring to the final allotment of arbitration fees and costs. As @Harry Seaward pointed out, she is convinced that you are getting stuck with whatever they have paid to AAA, thus far, and you don't want to take the chance that the arbiter figures that's something you expect. You need it clearly on the record that, as a Consumer Arbitration, Unifund is not going to see a dime of what they have paid, regardless of outcome. 

Share this post


Link to post
Share on other sites
24 minutes ago, williams4 said:

In one of her rants about how she is not trying to combine these two accounts she even pulled up my 3K account on her computer and said "All this account shows is a few letters we sent" (which are the letters she included in her response!!) But she was adamant those letters were not in her response, when clearly they were.  All it would take is for her to take the time to look at the exhibits she submitted with her response to realize they are in there.

This is just more evidence that she thinks this proceeding is under jurisdiction of court. At some point I'd expect her to go off on arbiter for not looking at the same court system that she is, but she won't do that because she thinks he's a judge.

Share this post


Link to post
Share on other sites

@fisthardcheese @Harry Seaward Is it possible in arb to get evidence excluded or striken using FRE 402, 403 or perhaps Citi's South Dakota rules as authority? I know arb rules are less formal, but including irrelevant evidence to the $3K account has no bearing on the FDCPA claims of the Claimant's Demand, and is confusing the issues of that Demand's claims. ***Edit: As I understand this, there is no counterclaim by Respondant for the $3K, only a counterclaim for the $22K from another Demand with court order.

Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Share this post


Link to post
Share on other sites
10 minutes ago, Goody_Ouchless said:

I'm not referring to the cases, I'm referring to the final allotment of arbitration fees and costs. As @Harry Seaward pointed out, she is convinced that you are getting stuck with whatever they have paid to AAA, thus far, and you don't want to take the chance that the arbiter figures that's something you expect. You need it clearly on the record that, as a Consumer Arbitration, Unifund is not going to see a dime of what they have paid, regardless of outcome. 

I misunderstood you, I apologize. Yes, in her response she said she is not paying my $200 filing fee saying it’s “related to Respondents attempt to collect a debt” and cites the cc arbitration clause. And then asks reimbursement for respondants arbitration fees citing cc arbitration clause “if we prevail, we may not recover our fees, unless arbitrator decides your claim was frivolous” @Harry Seaward I apologize as well! I was misunderstanding your comments too. 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.