bureabe Posted February 12, 2019 Report Share Posted February 12, 2019 Hello, I received summons from LVNV Stenger & Stenger is representing them it is regarding a credit one credit card. This is my second go around my first was with Portfolio recovery a few years ago. What is attached to the summons is basically laughable as no supporting evidence was included except for there standard allegations. I would like the best approach to take towards Stenger & Stenger. I am thinking of arb this time around. However i am not able to find the 2015 or 2014 credit one agreement. Any help is greatly appreciated Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 12, 2019 Report Share Posted February 12, 2019 15 minutes ago, bureabe said: What is attached to the summons is basically laughable as no supporting evidence was included except for there standard allegations. They don't usually have to attach anything to the complaint. 16 minutes ago, bureabe said: However i am not able to find the 2015 or 2014 credit one agreement. What is the amount of the debt? I believe Credit One has a small claims exemption, so if you have been sued in small claims or "equivalent", arb is probably off the table. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 12, 2019 Report Share Posted February 12, 2019 11 minutes ago, Harry Seaward said: What is the amount of the debt? I believe Credit One has a small claims exemption, so if you have been sued in small claims or "equivalent", arb is probably off the table. No attorneys are permitted in Michigan small claims court unless representing their own claims. 1 Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 12, 2019 Report Share Posted February 12, 2019 12 minutes ago, Brotherskeeper said: No attorneys are permitted in Michigan small claims court unless representing their own claims. Awesome! So i vote for arbitration. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 12, 2019 Report Share Posted February 12, 2019 @bureabe A cursory search shows Credit One (as defendants) compelling arbitration against plaintiffs bringing TCPA suits against Credit One based on 2015 cardholder agreements. The arb clauses quoted in the rulings appear to be very similar to the current agreement language on the Credit One site. Here's an example: https://www.govinfo.gov/content/pkg/USCOURTS-nyed-1_15-cv-04752/pdf/USCOURTS-nyed-1_15-cv-04752-0.pdf Did you try the CFPB database for 2014? https://www.consumerfinance.gov/credit-cards/agreements/ Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Harry Seaward @Brotherskeeper The amount is for around $952.00 and yes i did some searching regarding the card agreement and i used wayback machine to pull the 2015 agreement. And it seems to have a small claims clause although it is not as clearly written as in the more recent agreements. So basically arbitration is not an option? I would hate to fight it because it is the same judge that screwed me when i defened myself aganist portfolio recovery a few years ago. He allowed them to bring fraudulent evidence and a visibly drunk attorney. And when i brought all that up to him he just said i want this case over with. So i am not liking my chances this time around. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 14, 2019 Report Share Posted February 14, 2019 29 minutes ago, bureabe said: And it seems to have a small claims clause although it is not as clearly written as in the more recent agreements. It doesn't matter. Your case can't be in small claims because attorneys aren't allowed in small claims, and LVNV is using an attorney. Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Harry Seaward aha okay i never knew that. Is there any state laws or something. Do i file a motion to compel arbitration based on that its small claims and attorneys are representing LVNV? Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 14, 2019 Report Share Posted February 14, 2019 58 minutes ago, bureabe said: i used wayback machine to pull the 2015 agreement. Please post the agreement so we can see what it says. 59 minutes ago, bureabe said: So basically arbitration is not an option? If LVNV is the plaintiff and Stenger is the attorney representing the plaintiff, you are not being sued in small claims court. Check your summons and complaint to verify what court you are in. Michigan small claims court does not allow parties to be represented by attorneys. Stenger would have to own the debt account in order to bring this claim in small claims court. 29 minutes ago, bureabe said: Do i file a motion to compel arbitration based on that its small claims and attorneys are representing LVNV? Huh? A motion to compel arbitration would be based on the arbitration section of the governing contract, the Federal Arbitration Act (FAA) and the Michigan arbitration statutes and court rules for motions as the motion's grounds and authority. When is your deadline to submit an answer to the complaint? Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 14, 2019 Report Share Posted February 14, 2019 @bureabe Here are 2 Michigan threads that you may find contain helpful info: Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Brotherskeeper thank you for the threads on the similar case. I was reading through it a few days ago and it seems as though they used arbitration method to end up settling with stenger& stenger. I will post the agreement right now. I was served personally on Feb the 6th so i think i have 13 days or so left to file an answer. Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Brotherskeeper After looking closely it is actually 2014 agreement even though it shows the site information from 2015 CreditOneBankCreditCardAgreements.pdf Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 14, 2019 Report Share Posted February 14, 2019 31 minutes ago, bureabe said: I was reading through it a few days ago and it seems as though they used arbitration method to end up settling with stenger& stenger. Read her second case--shorter thread. That one she didn't give in and pay a settlement; JDB dismissed rather than go to arb. 36 minutes ago, bureabe said: I was served personally on Feb the 6th so i think i have 13 days or so left to file an answer. Did you check to verify which court this is in? And the answer deadline, so you don't "think" you have 13 "or so" days? Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 14, 2019 Report Share Posted February 14, 2019 44 minutes ago, bureabe said: After looking closely it is actually 2014 agreement even though it shows the site information from 2015 If the agreement you posted is the correct one for your alleged account (Branded name, APR, fees, etc.) then it has a survivability clause. I don't believe credit card issuers provided 2015 agreements to the CFPB database. The arb section of the agreement works very well for you if you are in district court. "Severability, Survival: This arbitration provision shall survive: (i) termination or changes in the Agreement, the account and the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer or assignment of your account, or any amounts owed on your account, to any other person. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force." Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 14, 2019 Report Share Posted February 14, 2019 @bureabe Are you being sued on an account stated cause of action, with an affidavit attached to the complaint? If so, you'll have to submit your own affidavit with your answer. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 14, 2019 Report Share Posted February 14, 2019 2 hours ago, bureabe said: Do i file a motion to compel arbitration based on that its small claims and attorneys are representing LVNV? Your case isn't in small claims court. Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Brotherskeeper I checked the summons and it is with district court. Also i counted 21 days from Feb 6th which would leave me 13 days to file answer. As for the agreement i am not sure if it is the correct one that applies to the card i had. But i can't find any others except for more recent agreements. I will check her second case as i did not read that thread. I beleive it is account stated as the 8th allegiation is written " The account has become stated between the parties" There is no affidavit attached just the complaint. Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 14, 2019 Author Report Share Posted February 14, 2019 @Harry Seaward i wasn't sure but it looks like it is district court. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 15, 2019 Report Share Posted February 15, 2019 19 hours ago, bureabe said: After looking closely it is actually 2014 agreement even though it shows the site information from 2015 Actually, I just noticed this on bottom left of the first page of the Credit One Gas Rewards you posted: "© 2013 Credit One Bank, N.A. All rights reserved. Credit One®, Credit One Bank® and the Credit One Bank® logo are federally registered trademarks." When was this account opened? When was the first missed payment? 16 hours ago, bureabe said: There is no affidavit attached just the complaint. How sloppy of them. Does the complaint state that upon information and belief defendant has a copy of the contract in his/her possession? Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 15, 2019 Author Report Share Posted February 15, 2019 @Brotherskeeper I went back and i noticed that as well. I don't recall when i opened it i want to say it was around 2014 or 2015. In the summons they claim i opened it June 11th 2015. I am not sure when the first missed payment would have been but i remember that i didn't have the card for a long time even the amount they stated of $952.00 is very high it was really only around $400.00 yes it seems to imply that. The exact wording they used, It states "an agreement was deliver to defendant and to the best of plaintiff's knowledge, is in defendant's possession" Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 15, 2019 Report Share Posted February 15, 2019 35 minutes ago, bureabe said: In the summons they claim i opened it June 11th 2015. I am not sure when the first missed payment would have been but i remember that i didn't have the card for a long time even the amount they stated of $952.00 is very high it was really only around $400.00 What year do you think you may have defaulted? Did plaintiff attach anything at all to the complaint? A dated credit card statement showing the balance? Is this alleged debt on a "Credit One Bank Gas Rewards" card, or some other name brand? Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted February 15, 2019 Report Share Posted February 15, 2019 39 minutes ago, bureabe said: It states "an agreement was deliver to defendant and to the best of plaintiff's knowledge, is in defendant's possession" (IANAL) IMO This is in your favor because they claim a) there was an agreement between you and ("OC" original creditor) Credit One Bank, b.) you were sent a copy of that agreement, c.) you defaulted on the account according to the terms of that agreement, and d.) they are now the assignee (step into the shoes) of Credit One Bank, with all of its rights and duties of that agreement sent to you. Oh, looky there, one of those agreement rights is arbitration; one of those duties is to arbitrate any dispute if a demand is made. When a Michigan JDB plaintiff does not have a copy handy of the actual OC cardmember agreement, they state that an agreement is in the defendant's possession; the reason is to get around the court rule requirement that a claim (or defense) based on a written instrument (a contract) must be attached to the complaint, or state that the opposing party already has it. RULE 2.113 FORM, CAPTIONING, SIGNING, AND VERIFYING OF DOCUMENTS (C) Exhibits; Written Instruments. (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is ... (b) in the possession of the adverse party and the pleading so states... (2) An exhibit attached or referred to under subrule (F)(1)(a) or (b) is a part of the pleading for all purposes. (D) Adoption by Reference. Statements in a pleading may be adopted by reference only in another part of the same pleading. Quote Link to comment Share on other sites More sharing options...
MikeB35 Posted February 16, 2019 Report Share Posted February 16, 2019 I only have the 2014 cardholder agreement, if that helps you i can put together a PDF. Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 16, 2019 Author Report Share Posted February 16, 2019 @Brotherskeeper I am trying to remember when i defaulted and it might have been in beginning of 2016. But i am just guessing at this point. Perhaps i could look at my credit report to see if there are accurate dates. There is nothing at all attached to the complaint which i was kind of shocked by that. When i fought portfolio recovery a few years ago they had statements and affidavit attached to the complaint. This complaint seems rather primitive and by the looks they are banking 100% i will not fight back. No the alleged debt is not for the gas rewards card it is for the platinum name brand Quote Link to comment Share on other sites More sharing options...
bureabe Posted February 16, 2019 Author Report Share Posted February 16, 2019 @MikeB35 Thank You. It seems that the one i have and posted is 1 part 2013 and the rest is dated 2014 so i am not sure which one it is. But if it is not to much trouble i would like to see the 2014 agreement you have. Quote Link to comment Share on other sites More sharing options...
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