williams4

Being sued Unifund

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They hired a local attorney to represent them locally and she was phoned in.  I didn't really even have to say anything.  She referred to the letter from AAA about me not paying the filing fee.  So I handed the judge the letter and he read it and I chimed in saying that there is nowhere in Indiana Law that states the filing fee needs to be paid when compelling arbitration in court and it wouldn't make sense to pay this before my motion was granted.  He agreed.  The judge was very firm and kept asking if she thought there was anything in the law that she felt should prevent me from being able to Compel Arbitration.  She kept saying no but it's been 4 months and I still haven't paid blah blah blah.  My blood was boiling because it was her fault it has been this long! And the judge knew it to and just kept saying so you have no objections to compelling arbitration?  He was pretty quick to grant my motion.  The way it sounds, as long as I pay the $200 filing fee in 60 days, it will be closed. Not sure if that means dismissed with or without prejudice? I have a feeling they won't pay their initial fee.   But even if they don't, that shouldn't prevent the judge from dismissing the case, will it? They are the ones that would be in default. Even if they come back on the next hearing and say it cost too much, the court ordered us to arbitration and they agreed to it.

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I can't remember exactly how the judge said it, but one of the first things he told the attorney on the phone was something about here in Indiana, the court system is very strict about sending cases to arbitration if it is in the agreement, or something like that.  

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6 hours ago, williams4 said:

Not sure if that means dismissed with or without prejudice?

It definitely won't be with prejudice, and may not be dismissed at all.  It will probably be put on the inactive calendar where it will eventually be dismissed without prejudice if there is no activity for a certain period of time; usually 6 months to a year.  Even though without prejudice technically means they can refile at a later date, they would be morons to do that knowing you'll just hit them again with another MTC.  And it will probably make the judge mad that they never paid their fee and then tried to take you back to court.

6 hours ago, williams4 said:

I have a feeling they won't pay their initial fee.

IIRC, Unifund is the only JDB that ever paid the initial filing fee, but then they backed down when they got their second invoice for $5,000 or whatever.  It only ever happened the one time, and I honesty believe that case was one where they right hand didn't know what the left hand was doing and/or they paid the $1,700 fee thinking that was all they had to pay.

In any event, there's little doubt in my mind they will drop this case once they get the invoice for the initial filing fee, and, if they do pay the initial fee, there is no doubt in my mind they will drop it when they get the second invoice.

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14 hours ago, williams4 said:

But even if they don't, that shouldn't prevent the judge from dismissing the case, will it? They are the ones that would be in default. Even if they come back on the next hearing and say it cost too much, the court ordered us to arbitration and they agreed to it.

If you pay the filing fee immediately, you may be able to get something to send to the judge before your 60 days is up showing they are refusing to arbitrate.  Once AAA sends them their second notice to pay with a deadline, I would email them my settlement offer to dismiss my AAA claims against them with prejudice in exchange for $200 and a dismissal of the court case with prejudice. I would set my settlement offer expiration date as the same date AAA's deadline to pay is.  This gives them the option of paying you back your $200 to get out of this, or paying AAA $1700 to continue, or doing nothing and being in violation of a court order.

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51 minutes ago, fisthardcheese said:

If you pay the filing fee immediately, you may be able to get something to send to the judge before your 60 days is up showing they are refusing to arbitrate.  Once AAA sends them their second notice to pay with a deadline, I would email them my settlement offer to dismiss my AAA claims against them with prejudice in exchange for $200 and a dismissal of the court case with prejudice. I would set my settlement offer expiration date as the same date AAA's deadline to pay is.  This gives them the option of paying you back your $200 to get out of this, or paying AAA $1700 to continue, or doing nothing and being in violation of a court order.

I initiated arbitration on the smaller account I have with them (the debt is $3000 and I received my dunning letter, so I started arbitration with them since there is a small claims exclusion) The letter I received from AAA states Unifund has to pay $500 registry fee (since their business isn't currently registered)  and deposit of $3050 by February 7.  I am curious to see what the deposit will be for them on the bigger one.

The AAA letter (for the smaller account) also stated "Referring to Rule R-9 of the Consumer Arbitration Rules, if a party's claim is within the jurisdiction of a small claims court, either party may choose to exercise the small claims option. If either party would like this matter decided by a small claims court, please send your written request to the Consumer Filing Team and copy all other parties."  Which I mailed in a letter stating small claims court does not have jurisdiction then referred to CC agreement stating "You or we may not litigate in court once arbitration has been chosen..." I assume this is what that means and small claims doesn't have jurisdiction?

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9 hours ago, Harry Seaward said:

IIRC, Unifund is the only JDB that ever paid the initial filing fee, but then they backed down when they got their second invoice for $5,000 or whatever.  It only ever happened the one time, and I honesty believe that case was one where they right hand didn't know what the left hand was doing and/or they paid the $1,700 fee thinking that was all they had to pay.

 

I initiated arbitration on the smaller account I have with them (the debt is $3000 and I received my dunning letter, so I started arbitration with them since there is a small claims exclusion) The letter I received from AAA states Unifund has to pay $500 registry fee (since their business isn't currently registered)  and deposit of $3050 by February 7.  I am curious to see how much the deposit will be for the bigger one.  So after this $3050 deposit, will there be more that Unifund owes? AAA states the $3050 is for filing fees ($300) expedited customer clause review ($250) and arbitrator's compensation deposit ($2,500).  I can't figure out if this includes the hearing fees and all that too or if that will come later?

 

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@fisthardcheese knows more about the details of the fee structure, but I can say there was an Unifind case here in AZ a couple years ago where they reportedly walked away from a $30k debt. 

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5 hours ago, williams4 said:

and deposit of $3050 by February 7.  I am curious to see what the deposit will be for them on the bigger one.

The same.  All initial costs are the same.  But, as you noted, $2500 of that is for the arbitrator's deposit.  Your job (should it unlikely actually get that far), is to make sure that the arbitrator's deposit of $2500 is eaten up sooner than later.  Usually, for an average case, another $2500 minimum is billed prior to the final hearing.

5 hours ago, williams4 said:

The AAA letter (for the smaller account) also stated "Referring to Rule R-9 of the Consumer Arbitration Rules, if a party's claim is within the jurisdiction of a small claims court, either party may choose to exercise the small claims option. If either party would like this matter decided by a small claims court, please send your written request to the Consumer Filing Team and copy all other parties."  Which I mailed in a letter stating small claims court does not have jurisdiction then referred to CC agreement stating "You or we may not litigate in court once arbitration has been chosen..." I assume this is what that means and small claims doesn't have jurisdiction?

This is a rule that AAA has for consumer arbitration to "make it more fair to consumers".  Most people think it helps consumers avoid being forced into "big bad unfair arbitration", but it causes a little hiccup in the way we use arbitration here.  Since it is their rule, the card agreement language will be irrelevant. I would expect Unifund to file suit in small claims and tell AAA they are opting for small claims.  You will just have to file an MTC in court as you already know how to do and have the court order arbitration, then you ask AAA to reopen your case and send a copy of the signed MTC. They will reopen it under the court orders.

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1 hour ago, fisthardcheese said:

This is a rule that AAA has for consumer arbitration to "make it more fair to consumers".  Most people think it helps consumers avoid being forced into "big bad unfair arbitration", but it causes a little hiccup in the way we use arbitration here.  Since it is their rule, the card agreement language will be irrelevant. I would expect Unifund to file suit in small claims and tell AAA they are opting for small claims.  You will just have to file an MTC in court as you already know how to do and have the court order arbitration, then you ask AAA to reopen your case and send a copy of the signed MTC. They will reopen it under the court orders.

This makes sense now.  I would have been stressing if Unifund said they wanted to go to small claims and AAA said ok.  So I should pretty much expect this to happen, correct?  So then it would be the court that I have to convince to grant my MTC because it has "you or we may not litigate in court" and I chose arbitration before they filed a lawsuit? And just go through the steps of MTC until it gets granted and we are back at arbitration.

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On 1/30/2019 at 3:38 PM, williams4 said:

So I should pretty much expect this to happen, correct? 

Correct

On 1/30/2019 at 3:38 PM, williams4 said:

So then it would be the court that I have to convince to grant my MTC because it has "you or we may not litigate in court" and I chose arbitration before they filed a lawsuit?

Exactly

On 1/30/2019 at 3:38 PM, williams4 said:

And just go through the steps of MTC until it gets granted and we are back at arbitration

You got it.

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8 hours ago, fisthardcheese said:

Exactly

And if they file in small claims, I move it to higher court then argue it there, right? I do not argue it at the small claims hearing.

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1 minute ago, Harry Seaward said:

This is a $22k debt right? There's no way you are in a small claims court right now. 

No, sorry I am being confusing.  I should have created a different thread.  I have two accounts with them (unifund).  The court granted the 22K MTC in court. The 3K one is the one that I just received dunning letter so I commence arbitration and the AAA letter states they can chose small claims if they wish. The 3K one is the one I have a feeling will chose small claims.

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26 minutes ago, williams4 said:

The 3K one is the one I have a feeling will chose small claims

What are the limits on your small claims court? A lot don't allow lawyers, so if that were the case there, that would preclude them from using small claims right out the gate. 

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Ours is $6K.  Our rules state, "As a general rule, an unincorporated business must be represented by the owner of the business or an attorney."

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FWIW, the attorney from Unifund is in Maryland which is about 9 hours away, or they could hire a local one. Both of which may not seem worth it for them to file in small claims.

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13 hours ago, williams4 said:

And if they file in small claims, I move it to higher court then argue it there, right? I do not argue it at the small claims hearing.

No. Just file the MTC in small claims.

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10 hours ago, fisthardcheese said:

No. Just file the MTC in small claims.

I have been researching and reading my local rules and I can't figure out if I would be allowed to file a Motion in Small Claims.  I could be reading this wrong, but does "All defenses shall be deemed at issue without responsive pleadings, but this provision shall not alter the burden of proof."  mean that I would just need to bring my defenses the day of the hearing and not able to file a MTC before?

 

Rule 4. Responsive pleadings

(A)   Preservation of Defenses. All defenses shall be deemed at issue without responsive pleadings, but this provision shall not alter the burden of proof.

(B)   Entry of Appearance. For the purpose of administrative convenience the court may request that the defendant enter an appearance prior to trial. Such appearance may be made in person, by telephone or by mail but the fact that no appearance is entered by the defendant shall not be grounds for default judgment.

(C)   Request for Jury Trial. Notwithstanding any statute to the contrary, a defendant may request a jury trial by submitting a written request to the court within ten (10) days after receipt of the notice of claim. No statement of facts supporting the request or verification of the request is required. The party requesting a jury trial shall pay the clerk the additional amount required by statute to transfer the claim to the plenary docket or, in the Marion Small Claims Court, the filing fee necessary to file a case in the appropriate court of the county. Unless filed within ten (10) days after receipt of the notice of claim the right to a jury trial is waived. Once a jury trial request has been granted, it may not be withdrawn without the consent of the other party or parties.

Rule 5. Counterclaims

(A)   Time and Manner of Filing. If the defendant has any claim against the plaintiff, the defendant may bring or mail a statement of such claim to the small claims court within such time as will allow the court to mail a copy to the plaintiff and be received by the plaintiff at least seven (7) calendar days prior to the trial. If such counterclaim is not received within this time the plaintiff may request a continuance pursuant to S.C. 9. The counterclaim must conform with the requirements of S.C. 2(B)(4).

(B)   Counterclaim in Excess of Jurisdiction. Any defendant pursuing a counterclaim to decision waives the excess of the defendant's claim over the jurisdictional maximum of the small claims docket and may not later bring a separate action for the remainder of such claim.

Rule 6. Discovery

Discovery may be had in a manner generally pursuant to the rules governing any other civil action, but only upon the approval of the court and under such limitations as may be specified. The court should grant discovery only upon notice and good cause shown and should limit such action to the necessities of the case.

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@fisthardcheese Quick question... When you are in arbitration, each credit card account has it's own case and can't be combined correct? The reason I ask this is because I filed my arbitration case for the small one ($3000) when received my dunning letter and not sued yet, and filed my big one ($22000) but didn't pay the filing fee because I was waiting on my MTC to be granted. Both of these are with Unifund and both have the same attorney representing them.  It was granted and I have 60 days to pay.  Well, Unifund paid their fees but paid on the smaller account ($3000).  AAA is now asking them to pay the other $1900 for their case management fee and hearing fee.  I was just wondering once I pay the filing fee on the bigger one, they won't combine these into one AAA case, will they? I have two different case numbers.  Just wondering how this will play out because I have a feeling Unifund thought they were paying the arbitration on my bigger claim. since the initial amount they paid AAA was $3050. 

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Probably two things determine whether cases can be combined.  1.  the cardmember agreement arb clauses;  2.  AAA rules.

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AAA has no rule prohibiting joinder of claims. Citi combined two lawsuits into one AAA case despite my protests. I believe JAMS rules are also silent on the issue. 

Edit: i was sued by Citi, not a JDB. If the two cases are different OCs, you might be able to argue joinder is not appropriate because there is significant difference in the subject matter of the debt (one is a general use  VISA card, the other is a store card, something like that) but honestly i would expect this argument to fall flat since both debts are owned by Unifund and the purpose of the debts is irreverent at this stage of the game. 

Even though i believe they could join them, i really think they'll walk away instead. 

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9 hours ago, Harry Seaward said:

Even though i believe they could join them, i really think they'll walk away instead. 

The only thing I am worried about is they already paid $3050 and by the looks of it they only owe $1900 more. They already paid $2500 arbitrator deposit (part of the $3050) but the letter also states the arbitrator compensation is $2500 a day for in person/telephone hearing.  I guess I am confused on how arbitration works. Is the arbitrator only looking at this case the days of actual hearings? Because there is a case management fee for $1400 (part of the $1900). I am just confused as to when the arbitrators clock starts ticking for their compensation.

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The way i understand it is the $2500 is for the hearing only. Any other time spent is billed separately. I missed where you said they had paid $3050. I could be wrong about them walking away, and this would be the first time. There's nothing you can do at this point but stay the course and hope they eventually decide to cut their losses.

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The only thing I am still hanging onto is the consent order from CFPB in 2016 saying Citi had to put the debt buyer cannot resell an account after they buy it.  I found a accounts receivable agreement online for Citi and it states they may not assign or transfer any of its rights or obligations.  My account was purchased in 2017, so it should have the updated agreement between Citi and the debt buyer. But I won't know for sure which agreement was used in this sale of my account until I ask Unifund to provide the agreement the bill of sale refers to.  If this is indeed in the agreement between Citi and the debt buyer, then they do not technically own my account, correct? After the debt buyer bought it, it was sold once and transferred once.  Even though I know all these places are intermingled somehow, the agreement I found doesn't state anything about it being able to be sell back to itself or anything.  But I guess too it would depend on the arbitration to decide as well.

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26 minutes ago, williams4 said:

My account was purchased in 2017, so it should have the updated agreement between Citi and the debt buyer.

The only agreement that applies to your account is the one in effect when you defaulted.  Subsequent updated agreements are not applied retroactively to closed accounts.

27 minutes ago, williams4 said:

If this is indeed in the agreement between Citi and the debt buyer, then they do not technically own my account, correct?

No.  I think you are misinterpreting the consent order.  The other problem is consumers do not have a right of action under that order.  It is strictly between CITI and the CFPB.  If they violate it all you can do is report it to the CFPB.

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