PRA (Dell) vs me

[MikeB35 82]

Well, I'm getting setup for another go around with court. This time I am up against Portfolio Recovery. I will save myself the headache and go straight to arb. This thread will contain any information for future searchers going through something similar in Ohio.

JDB - Portfolio Recovery Associates

State - Ohio

Amount - 2,527.26

I am currently awaiting to  be served, I know it will be soon, as I have been keeping an eye on the court docket. It was filed on the 15th so I would imagine it will be here between tomorrow and Friday. Correct me if I'm wrong, but I should essentially be able to cut and paste info from my last win obviously using the correct information pertaining to this case of course.

 

[Brotherskeeper 824]

20 hours ago, MikeB35 said:

Correct me if I'm wrong, but I should essentially be able to cut and paste info from my last win obviously using the correct information pertaining to this case of course.

Sorry you have to go throught this again, but you're battle-tested now. When you get a chance, can you please post the agreement so that we can get a look at the terms? 

[MikeB35 82]

1 hour ago, Brotherskeeper said:

Sorry you have to go throught this again, but you're battle-tested now. When you get a chance, can you please post the agreement so that we can get a look at the terms? 

I'm sorry too lol, bad decisions, and unfortunate circumstances will haunt me until i can mop up my mess. Ill look around to see if i still have my original papers. I may have to look them up online, for now im staying calm, and cool like a cucumber!  😎🥒

[MikeB35 82]

Just a quick search i came up with this.

Dell_Preferred_Account_Credit_Agreement.pdf

[MikeB35 82]

I also procured the 2016 agreement, this is when i opened the account

WebBank - Dell Preferred Credit Card Agreement, Rates and Fees.pdf

[Brotherskeeper 824]

15 minutes ago, MikeB35 said:

I also procured the 2016 agreement, this is when i opened the account

WebBank - Dell Preferred Credit Card Agreement, Rates and Fees.pdf

@MikeB35  Very favorable arb clause for you. I can't remember when you were active duty, but just wanted to alert you to this in case:

SPECIAL NOTICE TO ACTIVE MEMBERS OF THE ARMED FORCES: If you are an active member of the Armed Forces, or a dependent of an active member of the Armed Forces at the time you established your Account, and you established your Account on or after October 3, 2016, the following additional terms apply to this Agreement: • This Agreement is modified so that the provisions under the headings Arbitration Notice” and “Arbitration” do not apply to you.

• Federal law provides important protections to members of the Armed Forces and their dependents relating to extensions of consumer credit. In general, the cost of consumer credit to a member of the Armed Forces and his or her dependent may not exceed an annual percentage rate of 36%.

[MikeB35 82]

My last day of active duty was March 8th 2008, so I'm well past that lol. I'm still debating on if I will go with JAMS, or AAA. I have a ways to go, but i want to start formulating a preemptive plan of attack now before anything even happens.

 

[Brotherskeeper 824]

22 minutes ago, MikeB35 said:

I'm still debating on if I will go with JAMS, or AAA. I have a ways to go, but i want to start formulating a preemptive plan of attack now before anything even happens.

I think @Harry Seaward has recently come down on the side of AAA when either is available. As Louis Pasteur said, “Chance favors only the prepared mind.”

[Harry Seaward 1,296]

I like AAA because the fee is a little lower and because the JAMS rules are ambiguous in terms of who pays what. AAA rules are crystal clear that the JDBs fees can never be reallocated back to the consumer.

[MikeB35 82]

1 hour ago, Harry Seaward said:

 

I like AAA because the fee is a little lower and because the JAMS rules are ambiguous in terms of who pays what. AAA rules are crystal clear that the JDBs fees can never be reallocated back to the consumer.

thank you Harry

 

[MikeB35 82]

Just a quick update, as of today I still have yet to receive my summons by certified mail. It was filed and sent out Feb 15th. I did however contact the clerk last week and explained everything. I think she remembered me from my last victory and yet again she was very sweet and helpful. She told me if the letter gets returned to them they would re issue it, and i replied that i would be happy to come get it if it does get sent back. I always set her back because I'm willing to head it on with force, unlike most people who would shutter at the mere thought of court. She giggled and told me she would contact me. 😁

[Brotherskeeper 824]

33 minutes ago, MikeB35 said:

She giggled and told me she would contact me. 😁

Well done, my friend, well done. It's very smart to establish a good relationship with the clerk and the judge's staff where possible. It's good manners, but appreciated because good manners are often not in evidence here. 

[MikeB35 82]

Thank you kindly, I will keep you posted as I find out!

[MikeB35 82]

Well I finally got my paperwork today, 30 days later lol. This one is a hefty packet. They were kind enough to attack 3 statmenets, bill of sale, spread sheets, and they even went above and beyond to attach a copy of the agreement. They are so thoughtful! lol I dont have time to type everything up right now. But when i get a moment I will Type it out and share. Cheers!

[Brotherskeeper 824]

2 hours ago, MikeB35 said:

they even went above and beyond to attach a copy of the agreement. They are so thoughtful!

[MikeB35 82]

Ill keep it somewhat short and sweet.

(Normal Court Heading) case #, name etc etc.

Defendant

1. The plaintiff is the owner of the defendants WEBBANK account, account number ...XXXX. The chain of Title is attached hereto as Exhibit A.

2. By use of the account, the defendant became bound by terms in the accounts agreement. Copies of the Statements and agreement are attached as Exhibits B and C.

3 The defendant breached the account agreement by failing to make payments on the account as required.

4. The amount due and owing by the defendant is $X,XXX.XX

5. Although demand has been made upon the defendant to liquidate the balance due and owing, the defendant failed to do so.

6 Plaintiff does not seek an award of attorney fees, contractual or statutory interest after the date of charge of including any post judgment interest, and expressly disclaims any right it may have to the same.

Wherefore, the plaintiff prays for judgment against the defendant in the amount of $X,XXX.XX and court costs.

Its pretty straight forward, so I will draft up my papers between tonight and tomorrow. I will keep you all posted with that soon.

 

[Brotherskeeper 824]

@MikeB35 Have you had a chance to compare the agreement they submitted with the complaint with the one you have? 

[MikeB35 82]

I have not, I am just now setting down to delve into all the paperwork. I had some stuff to take care of around the house, but Im all done now.

 

[MikeB35 82]

I appears they are identical to the 2016 agreement I had procured earlier in the thread. Im going to start drafting up my papers now that i can see everything checks out.

[MikeB35 82]

I went back and spent some extra time fixing the visual layout and flow. But,this is what my answer will look like, all information has been redacted for obvious reasons.

If someone would like to use this as a template for a possible upcoming answer that needs to be submitted.

(this is ok for my court and I am not a lawyer, please research if this is ok for YOU to use)

DEFENDANT answers to complaint with arb Final Save as (PR).docx

[Brotherskeeper 824]

@MikeB35 See Rule 10 (D). IANAL. As I read this rule, you are required to refer to an exhibit or attach the agreement as an exhibit to your affirmative defense section. 

RULE 10. Form of Pleadings

     (C) Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument attached to a pleading is a part of the pleading for all purposes.

     (D) Attachments to pleadings.
     (1) Account or written instrument. When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.

[MikeB35 82]

@BrotherskeeperI planned on attaching the agreement with my answer,  I think that is what your referring to?

[Brotherskeeper 824]

1 hour ago, MikeB35 said:

 

@BrotherskeeperI planned on attaching the agreement with my answer,  I think that is what your referring to?

Yes. You have a defense based upon an account/written instrument's arbitration clause therein. Did they attach a copy of the Dell agreement to the complaint? If not, how did you receive it? Attaching as an exhibit (or referring to their complaint attachment) in your affirmative defense section the agreement they provided to you removes any potential argument about it being the applicable one. 

[MikeB35 82]

@Brotherskeeper Yes ma'am, they did send one. I was going to use a copy of that. I have to draw up an affidavit of authenticity and get it notarized to go along with it. That way I can ensure that if any questions arise i can point out that this is the agreement they attached to the case.

[Brotherskeeper 824]

11 minutes ago, MikeB35 said:

That way I can ensure that if any questions arise i can point out that this is the agreement they attached to the case.

Just to be clear: they attached the agreement to their complaint and filed it with the court. If yes, it is part of their pleading.