williams4

Being sued Unifund

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14 minutes ago, Brotherskeeper said:

***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.

Correct

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30 minutes ago, Goody_Ouchless said:

This is just more evidence that she thinks this proceeding is under jurisdiction of court.

Her response/counterclaim under "conclusion" states she is asking for summary judgment of the 22K but she never even lays out a claim for the 22K, which is more evidence she thinks this is under jurisdiction of the court.   

I am really hoping I didn't screw something up here.  Was I supposed to write up "brief" with my "Demand for Arbitration?" If so, I did not. The AAA rules state send your Demand for Arbitration and credit card agreement, which I did, but I never typed up an actual detailed brief.  When I read the rules it said at the preliminary hearing you clarify your claim, I thought that's when I go into further detail about my claim.  Now I am thinking "I" may have totally screwed everything up if I was supposed to type up a brief WITH my Demand for Arbitration form.

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39 minutes ago, williams4 said:

I apologize as well! I was misunderstanding your comments too.

I'm not sure now what you think I was saying, but I'll try to be as clear as I can. 

The idea with the arbitration "strategy" is that the significantly higher costs of arbitration (vs. what they pay in court) are a deterrent to a JDB like Unifund. Also, in court, court costs and lawyer fees are also allowed to be attached to final judgment. If this were in court, Unifund would have little to lose since everything they spend will be part of the final judgment against you. 

Right now the unifund lawyer believes she is operating in an environment where,  like court, Unifund will get all of their fees back from you at final judgment. Because she's operating in that mindset, costs mean very little to her, and she has little incentive to back away from this trainwreck, and push on until the arbitrator issues final judgment against you. Once that happens, lawyer will find out she's footing the entire arbitration bill, but it will be too late. They will have a judgment against you. 

Hope that clears things up, because I don't know any other way to say it. 

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4 minutes ago, Harry Seaward said:

Right now the unifund lawyer believes she is operating in an environment where,  like court, Unifund will get all of their fees back from you at final judgment. Because she's operating in that mindset, costs mean very little to her, and she has little incentive to back away from this trainwreck, and push on until the arbitrator issues final judgment against you. Once that happens, lawyer will find out she's footing the entire arbitration bill, but it will be too late. They will have a judgment against you. 

 

I thought you meant make it clear to Respondent that my claim is not "frivolous" but now I realize I misunderstood what you were saying because you were saying make it clear to Respondent that she cannot reallocate her AAA fees.  I was hyper focused on my claim not being "frivolous" but I was also misunderstanding what a "frivolous" claim is. I was worried if I didn't have enough info upfront that she could say my claim was frivolous, hence my annoying comments worrying about frivolity. lol.    

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I also misunderstood @Harry Seaward's point, but he is exactly right. The goal is to get them to lose by folding. rather than lose by winning. They will lose, either way, with the bill, but if they follow through, they could win the case. Not sure it makes a difference in this case, as it seems limited to the alleged FDCPA violations - nothing else. In the 22K case, if that gets to arbitration, you don't want her going all the way to final judgement.

But to Harry's point - it seems important to clarify, even if that means another call, that Unifund is not getting their money back - lawyer needs to understand that in no uncertain terms.

 

 

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My brain is shot so I am going to ask (been holding back asking)  How do you find “case law” that pertains to your claim?  I have been searching, reading cases, googling every search I can think of for hours😩 I feel like I am missing how to find them. (Please don’t attack me too hard🤪, I already know I am clueless on this legal/arbitration stuff)

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38 minutes ago, williams4 said:

My brain is shot so I am going to ask (been holding back asking)  How do you find “case law” that pertains to your claim?  I have been searching, reading cases, googling every search I can think of for hours😩 I feel like I am missing how to find them. (Please don’t attack me too hard🤪, I already know I am clueless on this legal/arbitration stuff)

scholar.google.com

 

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On 4/16/2019 at 11:42 PM, Clydesmom said:

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.

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.

This is pointless garbage.  Op has plenty of evidence to assert an alleged violation.  She doesn't have to avoid making claims without every single piece of evidence known to man and it is well more than just a "shot in the dark".  Not to mention, this is arbitration and OP doesn't necessarily need to prevail on all of these claims as the goal is still just a mutual walkaway.

17 hours ago, williams4 said:

I know everyone keeps saying stop worrying about the "frivolous" thing.

Yes.  Stop.

15 hours 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?

It should be brought up IF and AFTER the attorney asserts it once more in their reply brief.  Once anything is brought up about the $22k debt in the response, as I have stated, my opinion would be to grind the whole thing to a halt. Filed objections, ask for a discovery hearing, ask all of their mention of the $22k to be stricken, and ask the arbitrator for a phone hearing to sort out the entire mess before proceeding further.

 

13 hours ago, Brotherskeeper said:

Is it possible in arb to get evidence excluded or striken using FRE 402, 403 or perhaps Citi's South Dakota rules as authority?

It can be stricken, but not due to irrelevancy, necessarily, but due essentially to res judica (or something similar?) - because this account is part of a pending court ordered AAA case under a separate case number.

I feel like a broken record at this point.  OP needs to file their brief and a motion to amend their demand to add additional claims prior to the deadline.  Everyone can speculate until we are blue in the face, but until we see what the Unifund reply brief looks like, there is no point in rehashing all of the what-ifs.

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@fisthardcheese

i just want to make sure I have this clear. When someone files a motion to amend a claim, just the arbitrator decides, correct? The other party has no say and can only object/respond once the new claim (assuming the arbitrator said yes) is asserted. I just want to make sure I had this right before I tell the arbitrator I can have it in with my brief or if the other party had so many days to respond to my motion asking to amend before the arbitrator made a decision (then I wouldn't have enough time since my brief due on April 29.  Reading the AAA rules, it seems like ONLY the arbitrator says yes or no, but I wanted to verify I before I sound like an idiot to the arbitrator. (you guys are used to my ignorance lol)

*****EDIT***** The arbitrator has the SOLE discretion to allow or deny the filing of a written motion and his or her decision is final. I missed key word "sole" the first 10 times I read this rule.  I am getting my motion in now!

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7 hours ago, fisthardcheese said:

Op has plenty of evidence to assert an alleged violation.  She doesn't have to avoid making claims without every single piece of evidence known to man and it is well more than just a "shot in the dark".

I NEVER said she didn't have enough to MAKE a claim.  I said she has nothing to PROVE it.  Learn to understand what you read.

7 hours ago, fisthardcheese said:

Not to mention, this is arbitration and OP doesn't necessarily need to prevail on all of these claims as the goal is still just a mutual walkaway.

At this point based on the length of this thread and how clueless the OP is my guess is this attorney is so pissed off [not to mention as aggravated as most trying to assist here] they are not dropping anything.  ANY other JDB would have walked away by now.  They haven't.  You better pray they do because if ONE large JDB figures out they can use arbitration and get the same results that threat may lose its potency quickly.

7 hours ago, fisthardcheese said:

This is pointless garbage.

That is the one thing you got right.  This thread is 16 pages longer than it needs to be had the entire issue been handled right.  What a mess.

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On 4/4/2019 at 6:24 PM, Goody_Ouchless said:

This is the strangest case since that goofy one with the seven business loans where plaintiff agreed to arb, but then wanted defendant to front the money. 

 

Thanks for the shout-out on my case, Goody!

I'll have to post an update on my thread soon.  I haven't heard anything from the JDB's attorney for about a year.  (I've actually checked the obituaries a few times).  JAMS closed the case for non-payment months and months ago.  The civil case remains stayed with no activity from the court since they granted my MTC in October 2017.

I've learned to have the patience of a saint.

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7 hours ago, fisthardcheese said:

It should be brought up IF and AFTER the attorney asserts it once more in their reply brief.  Once anything is brought up about the $22k debt in the response, as I have stated, my opinion would be to grind the whole thing to a halt. Filed objections, ask for a discovery hearing, ask all of their mention of the $22k to be stricken, and ask the arbitrator for a phone hearing to sort out the entire mess before proceeding further.

Still missing my point. I don't care about 3K or 22K or 1,000,000K. I am only talking about AAA's costs and fees. It is clear that Unifund's lawyer is under the impression that the costs and fees of arbitration, regardless of claim or case, will be recoupable in the final award. As Harry had said, this is a very dangerous state of affairs if Unifund pursues a case to completion that they otherwise would have folded. 

Since it's clear Unifund does not understand the cost/fee allotment, I'm asking if it would be in OP's best interest to request another call, or formal written clarification, so that Unifund knows, in no uncertain terms, that the money they have paid (and will pay) to AAA is a total loss and will NEVER be assessed to the OP?

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4 minutes ago, LaneBlane said:

The civil case remains stayed with no activity from the court since they granted my MTC in October 2017.

I've learned to have the patience of a saint.

Haa - eventually their case management system will dismiss for lack of prosecution.

 

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7 hours ago, fisthardcheese said:

I feel like a broken record at this point.  OP needs to file their brief and a motion to amend their demand to add additional claims prior to the deadline.  Everyone can speculate until we are blue in the face, but until we see what the Unifund reply brief looks like, there is no point in rehashing all of the what-ifs.

Regardless of what that Arbitrator may have told the OP about her ability to amend her demand, the OP must file their motion to amend prior to the deadline.  If the deadline is missed, so is the opportunity argue this point.

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8 minutes ago, Goody_Ouchless said:

Haa - eventually their case management system will dismiss for lack of prosecution.

 

I'll have to address this in my thread later. My fear is that the JDB can file in small claims if the case is dismissed for lack of prosecution.

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7 hours ago, Clydesmom said:

 

That is the one thing you got right.  This thread is 16 pages longer than it needs to be had the entire issue been handled right.  What a mess.

Technically, I have handled it right. The jdb is the one that messing stuff up and making it take so long. To be clear, the original 22k lawsuit was filed in August. It wasn’t until January 28 my motion for granted. And I would like to add that it was ONLY because the jdb didn’t show up to the hearing and drug it out that long. The 3k is the one they paid and we just had the initial conference hearing just on Monday when I have tried everything in my power to tell her this is the 3k. She has it confused and a mess, not me! 

7 hours ago, Clydesmom said:

At this point based on the length of this thread and how clueless the OP is my guess is this attorney is so pissed off [not to mention as aggravated as most trying to assist here] they are not dropping anything.  ANY other JDB would have walked away by now.  They haven't.  

Considering how our initial conference hearing with aaa went, she hasn’t walked away because she still has no clue what’s going on. Her response (that I objected to) had exhibits of two accounts attached. 3k and 22k. She kept calling me a liar and saying no she didn’t. But she clearly did and I even pointed out which exhitits had what account number/amount on and she refused to even look. Then she kept saying this is for the 22k (when it’s not, it’s for the 3k) She told the arbitrator that she was waiting to pay the 3k fees until she saw how this went. Finally, since we were obviously getting no where, the arbitrator said so the claimant initiated the claim on both, (I said yes, and this claim was paid BEFORE we even had the court order) then he said clearly the claimant knows which account number goes with what case number (which jdb said, we will see)  and he said he is ONLY able to decide on whatever account number is in THIS case. So we got off the phone with her STILL thinking it’s the 22k, but it’s not.  She hasn’t dropped it because she still has no clue what’s going on  

 

7 hours ago, Clydesmom said:

how clueless the OP 

Absolutely! I have pointed this out many times through this process! And I really do appreciate everyone’s help! Despite my ignorance and annoyance 

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5 hours ago, Goody_Ouchless said:

Since it's clear Unifund does not understand the cost/fee allotment

Yes, she does. She cited from citi cc agreement the entire thing about they cannot reallocate their fees unless frivolous. Which is why she asked for reimbursement

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5 hours ago, LaneBlane said:

Regardless of what that Arbitrator may have told the OP about her ability to amend her demand, the OP must file their motion to amend prior to the deadline.  If the deadline is missed, so is the opportunity argue this point.

Yes, I did file this morning. 

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7 hours ago, Clydesmom said:

entire issue been handled right.  What a mess.

Not sure how this hasn’t been handled right? A lot of the “what if” questions I ask and freaking out on what could happen, absolutely not handled right!.(Anxiety gets the best of me and actually just got home from the dr to fix that, so hopefully no more worrying over things that don’t matter!) but not sure what part of awsuit/arbitration hasn’t been handled right?

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On 4/16/2019 at 10:42 PM, Clydesmom said:

You have to have enough proof FIRST on a claim like this.  You can't just shoot in the dark.

 

14 hours ago, fisthardcheese said:

Op has plenty of evidence to assert an alleged violation.  She doesn't have to avoid making claims without every single piece of evidence known to man and it is well more than just a "shot in the dark".

 

7 hours ago, Clydesmom said:

I NEVER said she didn't have enough to MAKE a claim.  I said she has nothing to PROVE it.  Learn to understand what you read.

Actually, you kinda did...

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1 minute ago, Brotherskeeper said:

Learning how to carefully read all legal writings is a critical skill to develop. ;)

You guys taught me that!😂😂 

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15 hours ago, fisthardcheese said:

It can be stricken, but not due to irrelevancy, necessarily, but due essentially to res judica (or something similar?) - because this account is part of a pending court ordered AAA case under a separate case number.

 

15 hours ago, fisthardcheese said:

I feel like a broken record at this point.  OP needs to file their brief and a motion to amend their demand to add additional claims prior to the deadline.  Everyone can speculate until we are blue in the face, but until we see what the Unifund reply brief looks like, there is no point in rehashing all of the what-ifs.

Your continued patience on this forum is incredible. Truly. I learn from you each time I read your posts. Thank you for all you contribute here. 

Ahem. I hope this isn't a question that tries that patience. I know arb is less formal. When bringing a formal claim demand (after the initial filing with brief description) for FDCPA violations, do you have to make all of the allegations that are required in a court-filed FDCPA complaint?

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1 hour ago, williams4 said:

Yes, she does. She cited from citi cc agreement the entire thing about they cannot reallocate their fees unless frivolous. Which is why she asked for reimbursement

I brought up the lawyer's ignorance of the fees a dozen times. Why is this the first we're hearing she acknowledged she can't recover fees?!?

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17 minutes ago, Brotherskeeper said:

Learning how to carefully read all legal writings is a critical skill to develop. ;)

Which I have actually learned to do since discussing all this with you guys! I noticed yesterday, I sent an email on March 4 to AAA and JDB (because we have to include other party on all communications) saying "I have an AAA case that was administratively closed because I was waiting for my MTC to be granted.  It is now granted and I need to file and pay to get that case initiated."  Wouldn't you know, her "answer/counterclaim she filed was dated and uploaded to the online case file on March 6. Two days AFTER I sent that email (which I didn't realize because I didn't see these until April 8 because she never properly served the answer and the AAA finally sent them to me because attorney wouldn't answer any of my emails. (and I NOW understand the importance of objecting to anything not properly served)  You best believe I will point this out, along with all the notices from AAA on the other case that says THIS IS A COURT ORDER arbitration claim.   Yet, she argued until she was blue in the face saying this is the 22K not the 3K. 

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