shadowfighter

Request for help with best approach for favorable outcome

9 posts in this topic

1. Who is the named plaintiff in the suit?

Velocity Investments, LLC

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

Gurstel Law Firm, P.C.

3. How much are you being sued for?

~$17k

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

Prosper

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

Informed by my mother that service had been attempted on their house and left on the porch.

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

Service was in-person, rejected, and left on the porch.

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

Probably not. The summons was served at my father's house (who shares a similar name, but with whom I do not reside), and was not accepted by anyone in the house. They left the summons on the porch which included details about the debt, with people who were probably not legally allowed to have the information about my debt revealed to them by the plaintiff. I have recently moved to the same county as my father (was out of state before that) and I'm assuming they merely mixed up our identities, but that's where I'm uncertain as to whether or not the service was legal (or even if that matters beyond an FDCA complaint or two if needed).

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I had never heard of Gurstel Law Firm or Velocity Investments prior to seeing the summons.

9. What state and county do you live in?

Utah, Washington County

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

Nowhere near outside the statute of limitations. Payment was last made on this account in June of 2017.

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

This was an unsecured loan that was opened in August of 2014.

12. What is the SOL on the debt? To find out:

6 years as per current residence in Utah given it is a written contract.

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or b) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Unfortunately I couldn't get much out of the clerk. I know that a claim has been filed as I was provided a case number.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

This debt was, "Charged off as bad debt" in June 2017 and also shows, "Purchased by another lender." As of yet there are no collections reported to my TransUnion credit report.

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

I did not send a debt validation letter as my first contact with the plaintiff was the summons.

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have about a week to file my answer to the complaint. It should be noted that my father has already sent a letter disputing this debt as the summons was served at his house using his name as well (our names are very similar, but legally not the same).

There are 6 claims made in the complaint (summarized):

1. That the plaintiff is the owner of multiple Prosper Funding, LLC accounts, including my account.

2. That I obtained credit from Prosper in August 2014

3. That I am a resident of Washington County, Utah, or signed the below-described transaction in said county (probably unimportant, but the contract was signed in Maryland)

4. That plaintiff's predecessor loaned me funds that I agreed to repay according to set terms and conditions in a written agreement.

5. That I have breached said written agreement which has defaulted, for $X amount

6. That plaintiff has been assigned all rights to the contract in question.

Unsurprisingly, the plaintiff is seeking award of the full sum claimed owed, their costs of Court, and other / further relief as the Court deems proper.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence, exhibits, attachments, etc. were included in the summons. Only the complaint.

18.  How did you find out about this site?

Google search while trying to research the law firm representing the plaintiff and potential attorneys that could help.

18. Read these two links:

✓ Using Arbitration To Defend A Debt Collection Lawsuit

✓ Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

I've spent almost all night on reading through the posts on this forum once I realized the attorney options I found wouldn't actually save me anything (one attorney would have settled it for about $4k less than owed, but they were going to charge $4k in fees when it was all said and done 😂). I think there is a *very* strong case for arbitration to be compelled, but I wanted to ensure there weren't other defenses I should try to utilize first. I don't mind this going to arbitration if that is the best chance at a favorable outcome, but I wanted to check with more seasoned veterans to try and double-check that approach first.

At the end of the day I honestly don't mind a settlement agreement / repayment plan if needed. My main goals are to try to get this out of court, avoid garnishment, and keep my credit report as clean as I possibly can so that I can take out a VA mortgage again in a few years. TL;DR backstory is that I had a very nasty year+ long divorce/separation that has drained any and all financial resources and resulted in a foreclosed house back in August. I'm looking at a minimum of two years from August before I can get another home loan, but that is considerably faster than having to file a Chapter 13 bankruptcy (5-6 years faster). Ultimately I want to keep my credit report clean of collection attempts if at all possible, and I'd be willing to enter a settlement and pay-off plan for this debt if that can happen. I'm not in a place currently to be able to afford an attorney as I'm still paying thousands to my divorce lawyer as quickly as I can, but I can probably budget a decent amount each month towards repayments. However, if those who are more knowledgeable than I think there's a chance I can get this case discharged or dropped somehow by compelling arbitration I am more than willing to see that threat through to the very end and make them spend as much as necessary to get anything out of me.

Here are the most relevant phrases regarding arbitration from my copy of the contract from 2014:

Quote

[...] Any Claim shall be resolved, upon the election of either you or me, by binding arbitration administered by the American Arbitration Association or JAMS, under the applicable arbitration rules of the administrator in effect at the time a Claim is filed ("Rules"). Any arbitration under this arbitration agreement will take place on an individual basis; class arbitrations and class actions are not permitted. If I file a claim, I may choose the administrator; if you file a claim, you may choose the administrator, but you agree to change to the other permitted administrator at my request (assuming that the other administrator is available). [...]
[...] You will pay all filing and administration fees charged by the administrator and arbitrator fees up to $1,000, and you will consider my request to pay any additional arbitration costs. If an arbitrator issues an award in your favor, I will not be required to reimburse you for any fees you have previously paid to the administrator or for which you are responsible. If I receive an award from the arbitrator, you will reimburse me for any fees paid by me to the administrator or arbitrator. Each party shall bear its own attorney's, expert's and witness fees, which shall not be considered costs of arbitration; however, if a statute gives me the right to recover these fees, or fees paid to the administrator or arbitrator, then these statutory rights will apply in arbitration. [...]
[...] YOU AND I AGREE THAT, BY ENTERING INTO THIS NOTE, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND I ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (e) OR UNDER THE FEDERAL ARBITRATION ACT). [...]
[...] 
You and I acknowledge and agree that the arbitration agreement set forth in this Section 18 is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act shall govern the interpretation and enforcement of this Section 18. This Section 18 shall survive the termination of this Note and the repayment of any or all amounts borrowed thereunder. [...]

My question is mainly regarding the administrator and arbitrator fees up to $1,000. If I can compel this to arbitration, do I get slammed with fees beyond that? The verbiage after that seems to protect me from their fees, but I can't quite interpret this part clearly.

Thank you to everyone who takes the time to read this and offer any insight, ideas, or suggestions to help me leverage and jockey for the best position possible regarding this debt. I've been able to pay off and/or settle all other debts that I have and am current on the few other debts that remain. This one is the one final debt I need to figure out how to handle and I'm honestly no sure how to approach it.

Sincerely,

Shadow Fighter

Share this post


Link to post
Share on other sites

Look at the JAMS consumer rules.  In JAMS, you only have to pay $250.  I think AAA is similar, but their cap is $200.  The key is to demand a consumer arbitration.

Share this post


Link to post
Share on other sites

Thanks for the reply @nobk4me. I'm going to give this thread a bump as my paperwork is due tomorrow.

Does anyone have advice as to any specific affirmative defense I should use in my answer if I plan to move this to arbitration? Is there a specific callout or phrase to use in the answer that I should include to reference that there is a Motion to Compel Arbitration that is filed with it or going to be filed soon?

Thanks,

Shadow Fighter

 

Share this post


Link to post
Share on other sites
21 minutes ago, shadowfighter said:

Thanks for the reply @nobk4me. I'm going to give this thread a bump as my paperwork is due tomorrow.

Does anyone have advice as to any specific affirmative defense I should use in my answer if I plan to move this to arbitration? Is there a specific callout or phrase to use in the answer that I should include to reference that there is a Motion to Compel Arbitration that is filed with it or going to be filed soon?

Thanks,

Shadow Fighter

 

A defense would be that the alleged account is subject to private, contractual arbitration as provided for in the applicable agreement.

Here’s an arbitration thread.  It contains a sample motion to compel arbitration.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

Share this post


Link to post
Share on other sites
51 minutes ago, Goody_Ouchless said:

What kind of debt is this? Is it a business loan? That arb clause is quite different from a standard consumer CC clause. Who do they mean by "you" and "I?" 

This is a promissory note on an unsecured personal loan that has been bought by a junk debtor.
As to whom "I" and "you" are they referencing this as myself being "I" and the OC / purchases of the debt being "you"

Quote

 

(i) "I," "me" and "my" mean the promisor under this Note, as well as any person claiming through such promisor;

(ii) "You" and "your" mean WebBank, any person servicing this Note for WebBank, any subsequent holders of this Note or any interest in this Note, any person servicing this Note for such subsequent holder of this Note, and each of their respective parents, subsidiaries, affiliates, predecessors, successors, and assigns, as well as the officers, directors, and employees of each of them; and

 

 

Share this post


Link to post
Share on other sites

Others will probably disagree, but since the contract doesn't say anything about arbitration having to use consumer minimum standards, and they specifically capped their costs at $1000, I wouldn't be shocked if they decided to follow. For 17K they'll risk a grand, if that's their only exposure.

We saw another one that was a business loan where things just stalled when plaintiff agreed to arbitration, but then insisted that all bills be split, up front.

Will be interesting to see what happens here.

 

Share this post


Link to post
Share on other sites

Alright, mailed off a bunch of stuff to the JDB and went and filed it with Court as well.

For the reference of myself or anyone else dealing with a case in Utah:

* Consent to email (so I can actually know of anything happening in the case instead of having to call the court each day)
* Answer - even with an arbitration attempt, as per Utah's rules for arbitration, you can't file a motion to compel arbitration without following the usual process and a motion can't be filed without the answer being filed. I made sure that arbitration was mentioned as my first affirmative defense & mentioned a successful ruling on the MTC arbitration and denial scenario in my relief requests of the Answer. 
* Motion to Compel Contractual Arbitration and Stay Proceedings
* Affidavit with Exhibit A (the original promissory note)
* Exhibit B (the letter sent to the JDB requesting arbitration) - I'm not sure if the letter is truly necessary, but there are parts of Utah's arbitration rules that read that a MTC wouldn't be supported as firmly by the Court without having at least reached out to the JDB to try and go to arbitration on your own. I mailed my letter to them a few minutes before I mailed their certified and return receipt folder full of copies of everything I filed with the court so that I didn't technically lie on anything I submitted, I just didn't give them any advance notice or chance to respond to my request for arbitration before serving them with a MTC it.

I'll try to get in here over the weekend and post the content of my answer and MTC for those who might want to use it in the future. I'll also be sure to update this thread as the case moves along with everything to keep track of how successful (or not) this is.

Share this post


Link to post
Share on other sites
On 1/17/2019 at 6:29 PM, Goody_Ouchless said:

Others will probably disagree, but since the contract doesn't say anything about arbitration having to use consumer minimum standards, and they specifically capped their costs at $1000, I wouldn't be shocked if they decided to follow. For 17K they'll risk a grand, if that's their only exposure.

We saw another one that was a business loan where things just stalled when plaintiff agreed to arbitration, but then insisted that all bills be split, up front.

Will be interesting to see what happens here.

 

The contract does not have to state anything about the consumer min standards in it.  Most do not.  It was a contract for a consumer loan, therefore, it is a consumer arbitration.

The language about their capped costs at $1k is only for "Administrative and filing fees", not about the actual arbitration fees.  The JAMS filing fee is $1750, and it is irrelevant what the contract states about capping that at $1k, because JAMS says if you name them in a contract you MUST follow their rules, including the consumer min standards.  Therefore, JAMS will bill this JDB for $1500 and the consumer for $250 (although I would certainly use that "if you ask us we may pay more" clause and NOT send any money up front to JAMS).

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now