Just served by Synchrony Bank (OC). No hope?

[MidFloridaLife]

1. Who is the named plaintiff in the suit? Synchrony Bank

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch Sturm

3. How much are you being sued for? $9219

4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank (JcPenney)

5. How do you know you are being sued? (You were served, right?) Served

6. How were you served? (Mail, In person, Notice on door) Served to my husband

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? none

9. What state and county do you live in? Orange County, FL

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) February 2018

11. When did you open the account (looking to establish what card agreement may be applicable)? 2014

12. What is the SOL on the debt? 4 years

13. What is the status of your case? Suit served? Motions filed? Suit served December 15 2018

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

15. Did you request debt validation before the suit was filed? no

16. How long do you have to respond to the suit? 20 days  Did you receive an interrogatory (questionnaire) regarding the lawsuit? no

17. What evidence did they send with the summons? Billing statement from August 2018 which shows the charge off amount

I have not contacted their attorney yet. We've been in a poor financial position since the beginning of the year, and at this time any monthly agreement above $100 would be devastating. Unfortunately we have no lump sum to offer. Is trying for arbitration my only (but very minute) chance? Since I am dealing with the Original Creditor and it is a decent amount, is it safe to assume that they will follow me there? Do payment agreements tend to be more lenient when in arbitration? What would be the best course of action here, aside from bankrupcy?

Thank you!

[Clydesmom]

3 hours ago, MidFloridaLife said:

Since I am dealing with the Original Creditor and it is a decent amount, is it safe to assume that they will follow me there?

If you are actually dealing with Synchrony yes, they should follow you in.  However, Synchrony typically sells their debts.  Are you absolutely certain it is Synchrony and not a JDB?

3 hours ago, MidFloridaLife said:

Do payment agreements tend to be more lenient when in arbitration?

Arbitration does not determine that the creditor money is owed to does.  The problem is "lenient"is subjective. If they get a judgment they can garnish up to 20% of your income after allowable deductions like taxes, child support, and insurance.  Neither the court nor the creditor care if you can survive financially after they legally start taking the money.  They are also not required to enter into another payment agreement since the consumer has already defaulted once.  The common settlement is a consent judgment for the payments and if you default again they do not have to sue you they can simply file the judgment and garnish the paycheck or levy the bank accounts.

3 hours ago, MidFloridaLife said:

What would be the best course of action here, aside from bankrupcy?

First make absolutely certain it is actually Synchrony who has filed suit.  That law firm RSIEH represents JDBs not OCs from what we have seen.

[BV80]

@MidFloridaLife

Check your credit report to see if Synchrony is reporting.  If it is reporting, does it it show that the account has been sold or transferred?

[MidFloridaLife]

12 hours ago, BV80 said:

@MidFloridaLife

Check your credit report to see if Synchrony is reporting.  If it is reporting, does it it show that the account has been sold or transferred?

Just checked the 3 credit reports. The account has not been sold. I'm afraid I am out of options...

 

[Harry Seaward]

3 hours ago, MidFloridaLife said:

Just checked the 3 credit reports. The account has not been sold. I'm afraid I am out of options...

You can't know this from your credit report. On the lawsuit paperwork it will give the name of the plaintiff. Midland, Portfolio, Cavalry,  something like that. I'm almost certain you aren't being sued by Synchrony. If you are, you could be the very first confirmed case on the board here, and would be a great test case to see how they respond to arbitration. 

[BV80]

2 hours ago, Harry Seaward said:

You can't know this from your credit report. On the lawsuit paperwork it will give the name of the plaintiff. Midland, Portfolio, Cavalry,  something like that. I'm almost certain you aren't being sued by Synchrony. If you are, you could be the very first confirmed case on the board here, and would be a great test case to see how they respond to arbitration. 

If an account has been sold, the OC notes it in its TL.  Also, the OC must report a zero balance and cease updating.  

[Harry Seaward]

59 minutes ago, BV80 said:

If an account has been sold, the OC notes it in its TL.  Also, the OC must report a zero balance and cease updating.

They are supposed to, yes. A.) There's no guarantee the OC did what they were supposed to. B.) We don't know where OP is getting his credit report, and how regularly credit reports are updated by that entity.

(If this were Cap1 or Citibank, I wouldn't question it. We've never seen a Synchrony-as-plaintiff lawsuit here that I'm aware of. If I had to put money on one of these being the culprit, it would be "B".)

[MidFloridaLife]

6 hours ago, Harry Seaward said:

You can't know this from your credit report. On the lawsuit paperwork it will give the name of the plaintiff. Midland, Portfolio, Cavalry,  something like that. I'm almost certain you aren't being sued by Synchrony. If you are, you could be the very first confirmed case on the board here, and would be a great test case to see how they respond to arbitration. 

The plaintiff stated on the summons is Synchrony, no other names.

[Harry Seaward]

51 minutes ago, MidFloridaLife said:

The plaintiff stated on the summons is Synchrony, no other names.

Ok, then.  Looks like you're the first one we've ever seen get sued by Synchrony.

So if you're not in a position to settle for a decent amount (50%-ish), you can give arbitration a shot.  I'd use AAA since the rules state the absolute max amount of fees you can be held liable for is the initial $200 filing fee.  Of course you could go all the way through arbitration and still end up with a judgment for the full amount of the debt plus their legal fees, but I predict the outcome in court to be no different.

There are a few things that are interesting about this case.  Mainly, we have no idea how Synchrony will respond to arbitration.  We also don't know how they show up for court (although I have no reason to think they wouldn't have all of the records needed to get a judgment).  Finally, the dollar amount of the debt is high enough that they probably won't be deterred by their high cost of arbitration.

[MidFloridaLife]

I'm unsure I am going to go the arb route. I've read several pages about it, and I don't think I am grasping the process/steps remotely well enough to do a decent job at it. 

I just had a free consultation with an attorney, who told me I could not do arbitration because it's not in small claim court ?. I told her I was not referring to mediation, but she insisted.

We have other debts/collections, but we cannot file bankruptcy without losing my paid-for car, which I need.

I called their Synchrony's attorney's office out of curiosity. I threw $100/month at them, only to be told that the court would not accept that and that they would need to know how much we make monthly and our debts to even consider something in the $200/month range. I did not give them any info and hung up. As far as I know the court has nothing to do with our agreement, so this blatant lie made me quite angry. 

I am stuck between a rock and a hard place.

[Harry Seaward]

18 minutes ago, MidFloridaLife said:

I just had a free consultation with an attorney, who told me I could not do arbitration because it's not in small claim court ?. I told her I was not referring to mediation, but she insisted.

She's wrong. 

18 minutes ago, MidFloridaLife said:

As far as I know the court has nothing to do with our agreement, so this blatant lie made me quite angry. 

Correct. The court has no say in what the plaintiff will accept in settlement.

If BK is off the table, you aren't comfortable with arbitration and you can't negotiate a settlement, the only alternative is to fight in court, but be aware that you're facing near certain judgment. If your assets are protected, it's a zero sum game.

[fisthardcheese]

I would go all in for JAMS arbitration.  You may be surprised.  You will definitely not be worse off than you are now.

I arbitrated with Synchrony and they were not willing to go all the way to the end of arbitration over $3k.  I know your amount is higher, but why give up before you even try it?

[Brotherskeeper]

15 hours ago, MidFloridaLife said:

I just had a free consultation with an attorney, who told me I could not do arbitration because it's not in small claim court ?. I told her I was not referring to mediation, but she insisted.

 

15 hours ago, Harry Seaward said:

She's wrong. 

She sure is, unless your cardmember agreement has different language than the standard Synchrony Bank JCPenney Account Agreement. See #1-2 below. It states if you or they make a demand for arbitration, it must be arbitrated; they won't require you to arbitrate a small claims case.

RESOLVING A DISPUTE WITH ARBITRATION
"PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US, AND/OR J. C. PENNEY CORPORATION, INC., WILL BE SUBJECT TO INDIVIDUAL ARBITRATION AS SET FORTH BELOW. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
• What claims are subject to arbitration
1. If you, we, or J. C. Penney Corporation, Inc. make a demand for arbitration, you, we and/or J. C. Penney Corporation, Inc. must arbitrate any dispute or claim, including, but not limited to, statutory, common law, and equitable claims, between you or any other user of your account, and us, our affiliates, agents and/or J. C. Penney Corporation, Inc. that relates to your account, including, but not limited to, any dispute or claim involving any purchase or credit made with or to, or otherwise involving your account, except as noted below. The parties intend for J. C. Penney Corporation, Inc. to be a third-party beneficiary of this Arbitration section of this Agreement.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."

[MidFloridaLife]

4 hours ago, fisthardcheese said:

I would go all in for JAMS arbitration.  You may be surprised.  You will definitely not be worse off than you are now.

I arbitrated with Synchrony and they were not willing to go all the way to the end of arbitration over $3k.  I know your amount is higher, but why give up before you even try it?

I'd love to do that, but I still fail to understand the nuances of the process. I reread the main thread about the arbitration process and how to do it, but the legal language it uses lost me (English is my second language). I'll do more research as I still have 2 weeks to respond. Right now I find it completely overwhelming...

[MikeB35]

Anything you do out of your comfort zone is overwhelming. Im sure about 80-90% of the people giving advise have had to start in the same position you are in currently. These guys and gals are knowledgeable in many cases that have gone through these forums over the years, let alone had to deal with their own. Please I urge you to take time out of your day to read and understand your options. Dont make hasty decisions, ask questions here and Im sure you could find your answers. Goog luck sir, knowledge is power!

 

[fisthardcheese]

2 hours ago, Brotherskeeper said:

She sure is, unless your cardmember agreement has different language than the standard Synchrony Bank JCPenney Account Agreement. See #1-2 below. It states if you or they make a demand for arbitration, it must be arbitrated; they won't require you to arbitrate a small claims case.

Most attorneys still don't understand the special Consumer Rules in AAA and JAMS and are not geared to fight cases based on a cost analysis rather than merit based.

2 hours ago, MidFloridaLife said:

I'd love to do that, but I still fail to understand the nuances of the process. I reread the main thread about the arbitration process and how to do it, but the legal language it uses lost me (English is my second language). I'll do more research as I still have 2 weeks to respond. Right now I find it completely overwhelming...

You have to just break it down into smaller steps and not try to take everything in all at one time.

1.  Respond to the lawsuit.  At minimum you need to file an answer that denies all of their allegations.  Within that answer, you have a second section called "affirmative defenses" where you state that the court has no subject matter jurisdiction due to an arbitration clause in the underlying contract.

2.  File the motion to compel arbitration.  This MTC is just a motion that asks the court to stay the case (put it on hold) and require the parties (you and Synchrony) to arbitrate the case instead of hearing it in court.

3.  Show up at any potential hearing in order to get the judge to grant your MTC.

4. File the JAMS arbitration paperwork to start the arbitration case