williams4

Being sued Unifund

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On 4/15/2019 at 10:07 AM, Brotherskeeper said:

Yes, I know. In my albeit limited research I could not find any case of an assignment flow from Citi to Pilot to Unifund that raises the CFPB consent ban on the resale. There are several FDCPA cases against Unifund as successor to Citi accounts; none that I found allege Pilot's contractual ban to sell/assign its own accounts. I agree with your position on this issue. The Indiana case I linked to was in response to OP's point that "this doesn't really show an ownership of my account going from Citi to Unifund." That case includes a Unifund witness. 

 

On 4/15/2019 at 10:11 AM, Harry Seaward said:

Right. The court found the witness didn't lay sufficient foundation for introducing the records. A 'problem' Unifund has since corrected.

Sorry for bringing up a controversial topic again.... I tried forgetting about this, but failed.  In this case @Brotherskeeper mentioned that got overturned happened in January 2017. My bill of sale is dated 5/17/17.  They did (within that 5 month period) corrected the wording in the bill of sale (from "receivables" to now "accounts".) But they still only have Unifund and Citi witnesses in my lawsuit (22K from court). Which in the case Brotherskeeper referenced, unifund nor citi could testify for the bill of sales once it left citi.  This also brings up my original point, the wording in the bill of sale between Pilot and Unifund made this court overturn Unifunds Summary Judgement, even though the credit card debtor was not a part of that transaction.

https://www.theindianalawyer.com/articles/42570-coa-overturns-judgment-in-favor-of-credit-card-debt-collector

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27 minutes ago, williams4 said:

Which in the case Brotherskeeper referenced, unifund nor citi could testify for the bill of sales once it left citi.

That's not what the court said in that ruling. Of course Citi can testify to their own records. The problem for Unifund was the witness didn't use the correct verbiage in testifying. Chances are slim they will make the same mistake again, especially since the court explained exactly what they need to do to fix it.  

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33 minutes ago, Harry Seaward said:

That's not what the court said in that ruling. Of course Citi can testify to their own records. The problem for Unifund was the witness didn't use the correct verbiage in testifying. Chances are slim they will make the same mistake again, especially since the court explained exactly what they need to do to fix it.  

I am confused about this part though?  The ownership thing.  If the verbiage has now changed, didn't THIS still play a part in the overturned case? Even though original debtor wasn't a part of that bill of sale?   "The second exhibit also contained two assignments between Pilot and Unifund that “fail to specify the transfer of rights in Williams’ account.” The assignments refer to “rights in the Receivables,” but the “Receivables” were likely more closely defined in a Servicing Agreement that was not admitted at trial, Riley wrote. Thus, the assignments fail to adequately establish that Unifund was assigned or had ownership of Williams’ account."

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I'm not going down that rabbit hole with you anymore. I stand by my previous statements, so you can go back and read them again if you need clarification. 

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1 hour ago, Harry Seaward said:

That's not what the court said in that ruling. Of course Citi can testify to their own records. The problem for Unifund was the witness didn't use the correct verbiage in testifying. Chances are slim they will make the same mistake again, especially since the court explained exactly what they need to do to fix it.  

The affidavit of debt from Unifund for the Bill of Sales (on mine from court) states XXX is a Unifund Employee and is familiar with Plaintiffs bookkeeping.  Then testifies to the assignment from Distressed to Unifund.  But doesn't have anyone from Unifund that testifies the Bill of sale for Pilot.  I have the exact same arguments as this case (even same state) to reference case law.  

 

Edit.... this was posted before I saw your last post.  I apologize!! I will stop.

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I believe there is a very real possibility that you could lose this case by getting sidetracked on nonsense, and I think the only person that should be offering advice here right now is @fisthardcheese. This will be my last post in this thread until the conclusion of the case. I'm going to step out of fist's way to minimize confusion, and I think everybody else should too.

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@fisthardcheese I still haven’t heard back on my motion for tcpa claim. I submitted it on the 18 (case manager forwarded it to arbitrator) I checked in with case manager on the 23rd and she said she hadn’t heard anything back and sent a follow up to the arbitrator and still nothing. My brief is due on Monday. Should I just include it in my brief anyway? In case he is waiting to ok it? Or can I not do that?

***edit*** my only thought is he could be waiting to see what my brief looks like before saying yes to adding the tcpa violations since she is calling my claim frivolous. Maybe he wants to make sure I am not trying to add it to make my claim not frivolous?

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11 hours ago, williams4 said:

@fisthardcheese I still haven’t heard back on my motion for tcpa claim. I submitted it on the 18 (case manager forwarded it to arbitrator) I checked in with case manager on the 23rd and she said she hadn’t heard anything back and sent a follow up to the arbitrator and still nothing. My brief is due on Monday. Should I just include it in my brief anyway? In case he is waiting to ok it? Or can I not do that?

***edit*** my only thought is he could be waiting to see what my brief looks like before saying yes to adding the tcpa violations since she is calling my claim frivolous. Maybe he wants to make sure I am not trying to add it to make my claim not frivolous?

Submit it without the TCPA claims until you hear back from the arbitrator.

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@fisthardcheese I received an email from AAA stating they closed the case for the court ordered arbitration case (22K).  I have an update phone conference hearing with the court on June 17.  Do I need to do something before that date or should I just wait for the conference hearing and tell the judge? My MTC asked to dismiss, or in alternative stay proceedings. I am not  sure if I need to do something since my MTC stated dismiss or stay and the judge may just dismiss after the phone hearing or if that isn't how it works?

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On 5/15/2019 at 2:21 PM, williams4 said:

@fisthardcheese I received an email from AAA stating they closed the case for the court ordered arbitration case (22K).  I have an update phone conference hearing with the court on June 17.  Do I need to do something before that date or should I just wait for the conference hearing and tell the judge? My MTC asked to dismiss, or in alternative stay proceedings. I am not  sure if I need to do something since my MTC stated dismiss or stay and the judge may just dismiss after the phone hearing or if that isn't how it works?

I wouldn't do anything until you know for sure the arbitrator is going to reject the 22k claims from your current case.  Once he does that, then I would immediately file a motion for sanctions in court and include a copy of the letter from AAA closing the case for their non participation. I would ask the judge to sanction them for the refusal to properly follow AAA rules and ask that the case be dismissed with prejudice.

But again, you must make sure the 22k account is excluded from the current AAA case first.

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@fisthardcheese I am thinking the 3K one is getting closed as well.  The letter from AAA for the 22K saying they closed it states "due to a previously filed case that Unifund didn't pay all the filing fees" and states "they will not administer this case (the 22K) or any other cases from Unifund.  Which the 3K one they paid their upfront $3000 bill but I know a previous letter said they were going to get billed $1400 case management fee once the arbitrator is appointed.  But I haven't received a letter about the 3K yet so obviously I won't do anything with the court until then.  And I don't want to get too excited either.

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13 hours ago, williams4 said:

@fisthardcheese I am thinking the 3K one is getting closed as well.  The letter from AAA for the 22K saying they closed it states "due to a previously filed case that Unifund didn't pay all the filing fees" and states "they will not administer this case (the 22K) or any other cases from Unifund.  Which the 3K one they paid their upfront $3000 bill but I know a previous letter said they were going to get billed $1400 case management fee once the arbitrator is appointed.  But I haven't received a letter about the 3K yet so obviously I won't do anything with the court until then.  And I don't want to get too excited either.

Did you file the court order with the 22K case?

This thing gets more messy by the minute.

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43 minutes ago, fisthardcheese said:
 

Did you file the court order with the 22K case?

I apologize, I am not sure what you are asking?  The order from the court to go to arbitration was for the 22K case.  Not sure if this is what you are asking.

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3 hours ago, williams4 said:

I apologize, I am not sure what you are asking?  The order from the court to go to arbitration was for the 22K case.  Not sure if this is what you are asking.

Yes, you didn't send a copy of the granted MTC in with your Demand paper work when you opened that case?

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30 minutes ago, fisthardcheese said:
 

Yes, you didn't send a copy of the granted MTC in with your Demand paper work when you opened that case?

I see what you were asking now.  Yes, I did send it (the order from the court signed by the judge) when I filed/sent in the Demand paperwork to AAA.  The letters AAA kept sending Unifund to pay their filing fee stated it was a "court order".

 

****Edited to add: When I sent my very first demand for the 22K to AAA, they ended up closing the case due to me not paying my $200 filing (I was waiting for the MTC to be granted) When it was granted I contacted AAA explaining I needed to open it back up because my MTC was granted and they informed me to open a new case online, pay the filing fee and attach the court order, which I did.

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On 5/19/2019 at 2:34 PM, williams4 said:

"due to a previously filed case that Unifund didn't pay all the filing fees" and states "they will not administer this case (the 22K) or any other cases from Unifund.

Holy moley.  I think this is saying that Unifind has failed to pay their fees on other (not yours) arbitration cases, and as a result, AAA is refusing to arbitrate any cases in which Unifund is a party.

Has anything happened in the court with this?

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7 hours ago, Harry Seaward said:

Holy moley.  I think this is saying that Unifind has failed to pay their fees on other (not yours) arbitration cases, and as a result, AAA is refusing to arbitrate any cases in which Unifund is a party.

Has anything happened in the court with this?

Nothing in court yet. We have another conference hearing with the court on June 10 (the 22k account that the judge sent us to arbitration but now unifund didn’t pay and aaa closed). Waiting to see what happens then. As far as the 3k one that is in arbitration (the one that they paid the first 3k filing fees) I submitted my brief then the arbitrator granted my amendment of claims to add tcpa claims and I submitted that and the arbitrator gave unifund until June 17 to send their response. So still waiting to see what goes on with that as well. 

Also, when the arbitrator said I could amend my claims to add the tcpa claims, the email said I can add as long as the claim is for the 3k account and not another account. So I don’t know if that is a good sign that he won’t let unifund combine the 22k account with the 3k.  I guess I will have to wait and see. 

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1 hour ago, williams4 said:

So I don’t know if that is a good sign that he won’t let unifund combine the 22k account with the 3k.

Did he rule they couldn't?

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12 minutes ago, Harry Seaward said:

Did he rule they couldn't?

He has not said anything. It’s so confusing. The point we are right now is I sent my demand, unifund sent answer/counterclaim, I objected to combining the cases. We had our initial conference hearing and unifund said they weren’t combining (which they did have documents from both accounts in their counterclaim)  Arbitrator said he will only make a decision on THIS case and ordered me to submit my brief. I filed a motion to amend my claim a few days after the initial hearing. I submitted my brief without the tcpa claim then two days later the arbitration said he was giving unifund time to respond to my motion to amend and since they didn’t object he said I can now send my brief on the tcpa claim as long as it’s for the 3k account. I haven’t received unifunds answer to my brief yet (the arbitrator gave unifund until June 17 for response) to see if they are going to try adding the 22k or what they have planned. So the arbitrator didn’t directly tell unifund they can’t add it. If that makes sense. 

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So you won't know anything until AFTER the next court date how they respond to the Arbitrator in the AAA case.

I'm wondering if filing a motion for sanctions and showing that they allowed the other AAA case to be closed now is a good move.  What does @Harry Seaward and @Brotherskeeper think?

Perhaps including evidence of everything that happened in that case - including your demand form and fact that you included the court's granted MTC order in your filing and showing the email exchanges and AAA demands for payment that went ignored, and then in your motion, explain to the judge that the Defendant has refused to follow the rules and instructions of AAA and therefore the AAA has closed the case.  In the conclusion, ask for sanctions and that part of the sanctions include a dismissal with prejudice of this case.

I would expect the clueless attorney to respond with something about your other AAA case being open and ongoing and you may have to argue to the judge and show them the fact that this is a case for a different matter not the same matter as the current court case, and this might allow the judge to consider it a "bonafide error" and excuse the attorney from making the mistake.  If that happens, I would ask the judge to order the attorney to open up the previous AAA case that was closed, and re-compel the parties to arbitrate the matter.  But if that happens, you are just back to square one and there is no telling what this hot-head attorney will do back in AAA.

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59 minutes ago, fisthardcheese said:

So you won't know anything until AFTER the next court date how they respond to the Arbitrator in the AAA case.

Correct. The phone conference update with the court is on June 10 and her response to my brief in AAA is due June 17. 

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@fisthardcheese At the last court conference update call, the judge asked if I paid the fee I said yes then she said that she paid her part too.  When I was on the conference call, I didn't know if I was just not notified yet or not that she did pay.  But then later that day confirmed she didn't pay yet so I called the clerk the next day to explain the situation (we are in a small town and the clerk knew what case I was referring to without even giving her the case number and stuff)  She said to just wait for the next conference call and if she still hasn't paid explain to the judge that she gave false info and that the judge "will probably" dismiss the case.  Of course I realize I was talking to the clerk and she doesn't have say on what the judge will say/do.

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I'm afraid this is way above my pay grade and would defer to @fisthardcheese 's advice. I would suggest that you consider filing all of the evidence attached to an affidavit to support your position with the court so that it gets in front of your judge. 

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@fisthardcheese@Harry Seaward@Brotherskeeper

Just a quick update....  We had our update phone hearing with the court yesterday.  I was going to do as you guys suggested but didn't get to it in time (dad went into the hospital and almost died and is still in ICU, beside the point but being with him moved up in priority over this case)  So the conference update call started off by me telling the judge that I did pay the filing fee on March 6 and explaining how I received the letter saying AAA is not administering due to Unifund not paying their filing fee.  Unifund then chimes in saying no, it's in arbitration and the arbitrator will have his decision by June 20 (which isn't true) and she said that I (me, not Unifund) is currently trying to merge another credit card account into the court lawsuit.  Of course the judge was like these are two totally different stories.  Unifund said well I can send you the court order. (which doens't make sense because he has the court order already)  So the judge told Unifund to fax him the court order and asked me to fax the letter I was referring to that said they aren't going to administer the case.  Which I typed up a little summary and also attached extra exhibits to show that the case in arbitration was filed and paid before the court order was even issued and also attached info and letters for the court compelled case and showing they closed it.  We have another conference update scheduled in August.  But the judge did say during the conversation that if the AAA case is closed that he will move the date of the next conference call up.

Also, I didn't notice until I got off the phone but she mentioned June 20 that a decision would be made. I thought it was odd because her response to my brief is due on June 17 then I still have two weeks to respond to that.  But then I noticed the arbitrators original order (before it changed due to my amended TCPA claim) stated that he should have a decision by June 20.  But if she was going off that order, her response to my brief was due on May 5, then my response back due May 20.   So I am not sure if she even plans on sending a response to my brief or if she thinks her brief before the arbitrator was appointed is all she needs.  I guess if I don't get anything from her by June 17 I will ask for a phone hearing??   

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