williams4

Being sued Unifund

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17 minutes ago, Harry Seaward said:

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?!?

 

On 4/17/2019 at 1:16 PM, williams4 said:

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. 

 

On 4/17/2019 at 2:08 PM, williams4 said:

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.    

It got lost in the 18 pages. lol  But yes, yesterday it finally clicked that I was misunderstanding what you meant by make it clear to Respondent.  Which I am pretty confident she will not keep paying once she gets the next bill. Doens't mean she won't and definitely doesn't mean she won't pay the 22K one to recoup costs, which is likely.

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None of that says anything about her having a discussion with the arbitrator in which she acknowledges by quoting the AAA rules that she won't be recovering her fees.

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43 minutes ago, Harry Seaward said:

None of that says anything about her having a discussion with the arbitrator in which she acknowledges by quoting the AAA rules that she won't be recovering her fees.

No. As of right now she still thinks this is the 22k account in this claim and my claim is frivolous.   The confusion arises too because this phone hearing wasn’t prompted by my objections. This was simply the initial conference hearing that was already scheduled. I didn’t get her “response/counterclaim” until one week before our conference hearing but hurried and filed my written objection and file/served them. So the arbitrator was there just for the initial conference hearing. He wasn’t looking into documents or anything, strictly to conduct the initial conference hearing.  Then he asked is there are any issues or anything, which is when I brought started pointing out the problems and she started going off. So now is when I write a brief on my claim. Calling a phone conference right now will NOT clear it up. She was 100% certain THIS is the 22k and I am wrong and lying 🤷‍♀️  At this point I did make a point to bring up the fact that she is combining two aaa cases into one and she kept saying no she isn’t. Despite me pointing out the evedence “she” submitted had documents clearing showing 2 different credit card account numbers. She just kept saying no I am not.🤷‍♀️ 

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3 hours ago, Harry Seaward said:

None of that says anything about her having a discussion with the arbitrator in which she acknowledges by quoting the AAA rules that she won't be recovering her fees.

I am starting to think my best bet right now would be to file failure to serve and get her response (that has her counterclaim of 22k) thrown out all the way? She did not serve me the documents. I assumed when aaa finally stepped in and sent them to me because she wouldn’t respond to my emails and asked if I still had 14 days to respond, that that meant they had been served. But if I did this then essentially starting at square one again? Since it was a preliminary hearing, my objections were never settled on, so really that 22k is still in with her counterclaim.   as of right now both are in there, the 22k and the 3k because the preliminary hearing ended and she doesn’t have to “ask” to add it, right. Then the burden is not on me to get the 22k out, the burden falls on her to fight to get it in.  And honestly the serving thing just occurred to me because when aaa finally sent them because jdb wouldn’t, aaa still gave me my 14 days to respond. But that didn’t benefit me at all because the arbitrator was there for a preliminary hearing, not an objection, which means the 22k IS in there and I would have to fight to get it out. I apologize if someone mentioned this previously  

My thought file a depositive motion under rule R52 d failure to serve  

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1 hour ago, williams4 said:

I am starting to think my best bet right now would be to file failure to serve and get her response (that has her counterclaim of 22k) thrown out all the way? She did not serve me the documents. I assumed when aaa finally stepped in and sent them to me because she wouldn’t respond to my emails and asked if I still had 14 days to respond, that that meant they had been served.

From my personal experience with arbitration, any issue that involves the failure of the Respondent's attorney to adhere to AAA's rules should be addressed in the form of an objection.  If the Respondent was required to submit these documents within a certain period of time, I would go so far as to object to the documents being allowed into evidence because the Respondent missed their deadline.

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30 minutes ago, LaneBlane said:

From my personal experience with arbitration, any issue that involves the failure of the Respondent's attorney to adhere to AAA's rules should be addressed in the form of an objection.  If the Respondent was required to submit these documents within a certain period of time, I would go so far as to object to the documents being allowed into evidence because the Respondent missed their deadline.

The only problem with this specific instance is I didn’t even know she sent a response/counterclaim until 7 days before the INITIAL  preliminary hearing. Preliminary hearing was already scheduled so I rushed to get my objections in. So we show up at the preliminary hearing and arbitrators main goal is INITIAL preliminary hearing. I bring up my objections but they don’t get settled. So now, her counterclaim (22k) IS in there because she submitted to aaa (but not me) within her initial 14 days and the preliminary hearing is closed. So now I have to fight to get it out. But I am thinking now, even though aaa sent me the papers I kept asking for, I assumed they gave me 14 days to respond, my objections  would be settled before the preliminary hearing ended. But they did not. Since Respondent had 14 days for answer, I had 14 days for response, then preliminary hearing. But since I didn’t get my objections in until after my original deadline, my objections weren’t in “on time” so he didn’t make a final decision on my objections before ending the preliminary hearing. Meaning, 22k is still in there. And, the aaa is going to close that 22k aaa case tomorrow if they don’t pay. Meaning, a lot easier to get jdb to try to keep that 22k in there (with 3k) Because “technically” it can be since it was in the counterclaim before the preliminary hearing ended. 

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46 minutes ago, LaneBlane said:

I would go so far as to object to the documents being allowed into evidence because the Respondent missed their deadline.

If I file a depositive motion for failure to serve then her counterclaim will be totally removed from the case. Meaning, 22k she countered would be gone too.  I think it will be harder to get the arbitrator to allow her to bring that 22k back in considering the commotion she caused at the preliminary hearing calling me a liar and saying she didn’t have two accounts and she did an stuff. 

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On 4/18/2019 at 11:26 AM, Goody_Ouchless said:

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?

I understand what you mean, but my point is that as long as OP is able to get the improper counter claims from this case tossed, then I think that is the point that everything might start to click in with this attorney.

On 4/18/2019 at 6:42 PM, Brotherskeeper said:

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?

There is no requirement per-se, but the better you can make your case the easier it is for a settlement or an award in your favor.  I always make my pleadings as close to what one would present in federal court as I possibly can, time permitting of course.

 

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On 4/18/2019 at 7:14 PM, williams4 said:

Which I am pretty confident she will not keep paying once she gets the next bill.

Your problem is that I highly doubt another bill is coming.  This is why everything will probably hinge on throwing everything and the kitchen sink at them after you see what is in their Reply Brief.  Including objections to counter claims, objections to costs citing the AAA rules plus the contract language stating that Unifund has no option to collect fees on arbitration cases, and also probably even pointing out that we are in a private arbitration case with AAA and not Court.

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5 hours ago, fisthardcheese said:

Your problem is that I highly doubt another bill is coming.  This is why everything will probably hinge on throwing everything and the kitchen sink at them after you see what is in their Reply Brief.  

All of this happened before our initial preliminary hearing. She never served me her response/answer. Aaa provided her response to me 5 days before our initial preliminary hearing date, which I sent a written objection immediately. (Aaa said since I am just getting these documents, I have 14 days to respond) So since my objections were “late” (I didn’t see their counterclaim until after my time to respond had passes)  they were heard at our initial preliminary hearing but not settled, meaning her counter for 22k is still in this case. But can’t I file a dipositive motion under r-52 failure to properly serve? And get her counterclaim thrown out? Her counterclaim WAS filed before arbitrator was appointed, so she didn’t need permission to add a counterclaim. Now she does need permission to add a counterclaim against me. Or did I “forfeit” being able to file to get it removed since I objected? I am unclear how that works  

Edit... also asking for a phone conference to clear all this up (which I would clear up the fees being reallocated, this is not under court jurisdiction, etc) So she knows BEFORE I send my first brief for the 3k. Which asking for this hearing before I file my first brief would prompt a bill for her. 

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To clear up where I am in this case

1/15/19 submitted my initial demand form

2/21/19 AAA sends letter giving Respondent 14 days to answer/counterclaim (respondents due date to submit is 3/7/19)

3/6/19 Respondent filed counterclaim/didn't serve to Claimant (this would give me until 3/21/19 to object/respond)

3/29/19 Arbitrator appointed

4/8/19 AAA sends me Respondents counterclaim (gives me 14 days to respond, which would be 4/22/19)

4/10/19 Claimant file/serves objections

4/15/19 Initial Preliminary Hearing (started and concluded) Claimant brought up objections, but in the arbitrators eyes he sees Respondent counterclaimed within 14 days, Claimant's objections were not filed by 3/21/19) So my objections were heard not settled before Preliminary hearing ended.

4/15/19 Arbitrator orders Claimant to file brief. Once I file my brief and Respondent comes back with the 22K stuff, it is "technically" in her counterclaim she submitted before the arbitrator was appointed.  So as of today, both accounts ARE in this one case.

I am still in my 14 day window AAA said I had to respond/object to her counterclaim.  Which I did send objections BEFORE the preliminary hearing, but they were heard but not settled (since they were not in by 3/21/19) 

***edit update: So when I sent my objections, did this prompt the (Respondent has 14 days to respond, then Claimant has 14 days to respond) then hearing? Or since I didn't ask specifically for a phone hearing in my objections, my objections did nothing?  I think this is the part I am most confused about.

 

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Alright.  Ask for a phone hearing.  It will be an exact copy of your last phone hearing with nothing accomplished because no briefs have been filed to clearly lay out to the arbitrator what this case is even about.  Also, I'm sure he will deny it for the same reasons.

However, as I have pointed out about 7686 times now, once both sides file the brief, you will then have a clear course of action. You will have their claims and allegations to object to, ask for things to be stricken, ask for a hearing on their jumbled mess, ask for sanctions for their intentional conflation of cases and their failure to previously serve their filings to you which shows a pattern of intention to confuse you and the arbitrator as a smoke screen to force claims from another case into this one.  Ask for more time to conduct discovery to sort out the mess they have made of this case. This is the kitchen sink tactic I would use, but how would you or the arbitrator be clear about what you should be objecting to and pointing out as problems if they haven't filed their brief yet?

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Deleted my long post  once it made sense to me that my objections to her counterclaim didn't matter, since no answer=do not agee

 

 

 

 

Edited by williams4
To clear up confusion

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@fisthardcheese To add to the above, the benefit I see getting the 22K thrown out of the 3K NOW and not LATER is the 22K will be closed with AAA and I will have a letter showing the court, she will KNOW the 22K is not in the case we are in right now and I can get the case dismissed in court. (I guess even is she is still confused, I am not sure What evidence she would to prove the case isn’t closed)  If I leave it in there and it takes a turn and they let her keep it in there, then I have to continue dealing with update conferences and stuff in the court system.

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On 4/20/2019 at 12:27 AM, fisthardcheese said:

Your problem is that I highly doubt another bill is coming.  

She should be getting a $1400 case management fee here soon. A letter back in February said it will be assessed once arbitrator has been appointed.

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17 hours ago, fisthardcheese said:

I understand what you mean, but my point is that as long as OP is able to get the improper counter claims from this case tossed, then I think that is the point that everything might start to click in with this attorney.

 

So what would you do in this situation.  If she has a $1400 bill coming, this credit card account is $3k. She has already dumped $3050 into this.

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19 hours ago, fisthardcheese said:

ask for sanctions for their intentional conflation of cases and their failure to previously serve their filings to you which shows a pattern of intention to confuse you and the arbitrator as a smoke screen to force claims from another case into this one.  Ask for more time to conduct discovery to sort out the mess they have made of this case. This is the kitchen sink tactic I would use, but how would you or the arbitrator be clear about what you should be objecting to and pointing out as problems if they haven't filed their brief yet?

Deleted my long response once it made sense to me that my objections to her counterclaim didn't matter, since no answer=do not agree.

Edited by williams4
To clear up confusion

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@fisthardcheese It JUST clicked.  I see what you are saying now. (it takes me a while, obviously) Let me make sure I REALLY know what your are saying.  I file my brief on JUST MY claims against her, she responds.  So when she responds and she DOES figure it out and her brief has it laid out all organized and put together (responding to MY claims then asserts the 22K) I object.  THEN file sanctions for her first Answer/Counterclaim (not being properly served, intention of conflation of cases....)  Or do I still not have it right?

Once I get the letter from AAA closing the case due to non payment (For the 22K in court) I can go to the court and get that case dismissed, regardless of whether she still "thinks" the one in arbitration is the 22K?

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On 4/16/2019 at 1:38 PM, fisthardcheese said:

Oh, okay.  Then in that case, file a "Motion to amend claims per Rule R-8".  I would state that "Due to claims discovered since the time of Claimant's initial Demand, Claimant requests permission under Rule R-8 to add additional claims under the federal Telephone Collection Protection Act to their Demand.  Claimant does not need additional time and can include these claims in their brief due on XXX" (whatever your due date is - and assuming you can get your TCPA claims included within that time too).

It can't hurt to try.  Also, if you can get it done in the original time frame and point out you don't need extra time, he may be more apt to allow it.

I think my question got lost in the numerous posts. When I file this motion, does the arbitrator even see this yet? Or does Respondent have 14 days to respond first before the motion is presented to the arbitrator to decide?

If so, I filed 4/18 (that would give her until 5/2 to respond)  My brief is due 4/29 and her response is due 5/6. Should I just include it in my brief in case the arbitrator says yes on May 2? 

 

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45 minutes ago, williams4 said:

I think my question got lost in the numerous posts. When I file this motion, does the arbitrator even see this yet? Or does Respondent have 14 days to respond first before the motion is presented to the arbitrator to decide?

If so, I filed 4/18 (that would give her until 5/2 to respond)  My brief is due 4/29 and her response is due 5/6. Should I just include it in my brief in case the arbitrator says yes on May 2? 

 

If you copied the arbitrator on the email, he will see it and likely say something about it before the 29th.

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28 minutes ago, fisthardcheese said:

If you copied the arbitrator on the email, he will see it and likely say something about it before the 29th.

I did not.  I will forward the email to him now. Thank you!

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31 minutes ago, fisthardcheese said:

If you copied the arbitrator on the email, he will see it and likely say something about it before the 29th.

Never mind, the response from AAA when I submitted my motion on 4/18 said "This will confirm receipt of your email and motion. I have forwarded it to the arbitrator."   So I will just sit and wait for his answer and plan on including it and if he says no just take it out before I submit my brief.

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On 4/16/2019 at 12:50 PM, fisthardcheese said:

 

If this were me, I would forget everything up to this point.  I would type up a brief on this FDCPA violation and include your proof.  That is ALL I would submit right now.  Then, I would sit back and watch the sewage show begin. :)  

 

So in my brief I am writing up, would this be equivalent to a complaint filed in the court system or equivalent to pre-hearing brief in court?  This is what's throwing me off right now.  I am trying to figure out if I need to include case law, stating laws and stuff now? Or right now is it just stating my claims, including my proof (phone logs), and what relief I am asking? 

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On 4/15/2019 at 3:23 PM, fisthardcheese said:

 

As of now, you are submitting detail of your claim only WITH EVIDENCE and case laws in support.  A full brief of your claims.

Got my answer to my previous question! Thanks!

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