dazednconfused79

Has anyone heard of merchant credit Adjusters?

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I am helping my husband with his Merchant credit adjusters case. The first time he heard of this company was in the form of a summons. The summons contained petition, letter from original creditor for the assignment of debt, affidavit from the original creditor, a copy of what I'm assuming is the last bill, a copy of the credit card agreement signed by my husband and an affidavit pursuant to service member civil Relief act (he is not military). With all this evidence I believe my best course of action would be to dispute the evidence in the summons but I am unsure of how to do so.

 

1. Who is the named plaintiff in the suit?

Merchant credit Adjusters

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

Brumbaugh & Quandahi PC

3. How much are you being sued for?

$931.19

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

Nebraska Furniture Mart

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

Summons

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

In person

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

Yes

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?

None

9. What state and county do you live in? 

Vernon county Missouri

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

4/16

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

11/2006

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

5yrs

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).

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? 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').

No

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?

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.

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Is that signature dated 2006?  I don't see arbitration listed in that signed contract, however, it is pretty unreadable.  But it looks like the 2016 Nebraska Credit Agreement has arbitration listed in it, so that would have been the proper agreement at time of default.

I would file an answer that just denies all of their allegations in the complaint and list the affirmative defense of Lack of Subject Matter Jurisdiction due to a private arbitration clause.  I would then file a Motion to Compel Arbitration along with a copy of the 2016 credit agreement and my own affidavit stating that this agreement is the agreement in place at the time of the alleged default.

The link in my signature below explains how and why arbitration works and how, once you get the court to grant your motion to compel arbitration, Merchant Credit will drop this case completely.

 

 

nfm-agreement-v005-2016-w-addendum.pdf

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Or should put

3. Deny lack of subject matter jurisdiction due to a private arbitration clause.

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Oh, hang on.  Did they sue you in the wrong court? 

Were you served in person?  This could be a big difference here.  Did you recently move?

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I believe so. We have a house in Cass County together but he's never there. He's registered to vote and owns a house in Vernon County Missouri which is where he spends the majority of his time. Also I just found out  he has another credit card case in Vernon county they just have not served him yet... there have been no recent moves. He owned the house in Vernon County before I met him. The house in Cass County we have owned for over 11 years.

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2 hours ago, dazednconfused79 said:

I believe so. We have a house in Cass County together but he's never there. He's registered to vote and owns a house in Vernon County Missouri which is where he spends the majority of his time. Also I just found out  he has another credit card case in Vernon county they just have not served him yet... there have been no recent moves. He owned the house in Vernon County before I met him. The house in Cass County we have owned for over 11 years.

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Which address was listed on the NFM account? 

Is the address listed on that signed contract they included with the summons your current address or the one in the other county?

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435.460.  Notice of arbitration provisions required. — Each contract subject to the provisions of sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which read substantially as follows:

"THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES."

Does this mean I have to put this on ALL documents I send in like my answer to the petition, MTC? or just on the actual contract I'm submitting with the MTC?

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20 hours ago, dazednconfused79 said:

435.460.  Notice of arbitration provisions required. — Each contract subject to the provisions of sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which read substantially as follows:

"THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES."

Does this mean I have to put this on ALL documents I send in like my answer to the petition, MTC? or just on the actual contract I'm submitting with the MTC?

This looks like a law pertaining to businesses writing a contract and does not apply to you.

If NFM sent statements to your other address, then you must have given it to them at some point, and it would not be an error to sue you in that county.  So we will forget that for now.  What I would do - first and foremost - is make sure you file an answer on time that denies all allegations.  Once you do that, you can file the MTC as soon as you can.  I would make sure that whatever contract you are using from NFM that contains an arbitration clause, that you also submit your own affidavit that states that "to the best of my knowledge, the attached [name of contract] is a true and correct copy of the contract that forms the basis of the allegations contained the the Plaintiff's complaint".

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On 2/7/2019 at 10:16 PM, dazednconfused79 said:

Ok Thank you so much for all your help fisthardcheese... 

 

Today was the deadline to answer and the court was closed. How do you think this will effect my case? 

It won't.  File the Answer first thing on Monday.

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So I can't  view anything when I'm logged in, I just get an error.

But I received a motion for a summary judgement. They are stating they did not receive the response. As I previously posted on the 30th day the court was closed due to weather. However I did mail the plaintiffs my response and I have a receipt for that mailing on the 30th day. The very next day I filed the paperwork with the court.

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I'm almost done answering the motion for summary judgement. Just need some help wording things a bit better.

DENIED defendant answered plaintiffs request for admissions and there is an issue of material facts.

should I also add that they don't have jurisdiction?

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So I was wondering why the plaintiff was stating they never received my response . Even though I sent it certified mail. So I look up the tracking information and guess who did not pick it up until March 5, 2019? (The day after we had court) . I'm tired of them playing games. So I'm thinking I should file a motion. The question is should I file a motion for summary judgment, motion for judgment on the pleadings or both? Wouldn't they both be similar due to the arbitration clause and lack of jurisdiction? Is one better than the other?

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My husband keeps allowing the plaintiff to continue. I told him do not allow any more continuances.

 

He was also served another suit. Should I start a new thread or put it on here?

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On 3/27/2019 at 2:27 PM, dazednconfused79 said:

Should I file a motion to dismiss?

If he is not objecting to continuances, then there is no real authority to use to ask for a dismissal.  He NEEDS to stop the carousel ride.  This is the latest tactic that attorneys are using when facing an MTC.  They are perfectly fine to keep setting infinite amounts of new court dates because that is their job.  They have to show up to work at court anyway, so if they can keep stringing you along and forcing you to take time away from YOUR job and life to show up, they figure one of those times they could get lucky and for whatever reason, you may fail to show up and they can (and will) get their default judgement.   It is time to put your foot down and demand that the Court hear your MTC and rule on it.  Do NOT allow another continuance.  If they ask for it in court again, you MUST state an objection and tell the court that this has been continued multiple times and that there is a pending motion since (whatever date) that should be heard.

It is probably best to start another thread for the new case as to not confuse the info and progress with this one.

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My husband thinks if he gets a dismissal with prejudice that prevents any future lawsuits for this debt. I told him it only prevents Merchant creditors from coming after him. But it could be sold and JDB could sue him. Is that correct or am I mistaken?

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47 minutes ago, dazednconfused79 said:?

 

48 minutes ago, dazednconfused79 said:

My husband thinks if he gets a dismissal with prejudice that prevents any future lawsuits for this debt. I told him it only prevents Merchant creditors from coming after him. But it could be sold and JDB could sue him. Is that correct or am I mistaken?

Your husband is correct on this one.  If the dismissal is with prejudice then the debt is done. Even if they were to sell it and the buyer sued he has an affirmative defense:  res judicata: the court already ruled dismissed with prejudice.

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§ 811.  Legal actions by debt collectors

(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

 

 

Would this be a good counter claim/ claim to start arbitration with?

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On 3/31/2019 at 12:29 PM, Clydesmom said:

 

Your husband is correct on this one.  If the dismissal is with prejudice then the debt is done. Even if they were to sell it and the buyer sued he has an affirmative defense:  res judicata: the court already ruled dismissed with prejudice.

Thanks!  My hubby will be happy to know. 

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12 hours ago, dazednconfused79 said:

§ 811.  Legal actions by debt collectors

(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

 

 

Would this be a good counter claim/ claim to start arbitration with?

Not unless they filed their lawsuit in a county which you do not currently live in.

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