mr_smith_2019

Settlement Agreement and Mutual Release

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Three years ago a credit card company sued me in magistrate court for $3000.  I invoked the arbitration clause.  

The creditors' attorney offered me a Settlement Agreement and Mutual Release in which I agreed to drop the arbitration case and the creditor agreed to the magistrate case being dismissed with prejudice.

Now, three years later, I applied to refinance my mortgage and it turns out the credit card account is still on my reports still showing the account as an  unpaid negative entry and a $3000 balance.   I disputed it with the CRAs.   I also called the creditor's collection department who said they had NO RECORD of a settlement agreement and asked me if I was going to pay the balance due!!!  I told them NO, that is the whole point of a SETTLEMENT AGREEMENT and the language of the agreement says I am released, acquitted, and forever discharged from all claims and liabilities!

So then I faxed the signed agreement directly to them and told them they need to correct my credit reports.

Two of the CRAs are now telling me the reports have been updated but all the creditor did was show the account as "charged off" since 2015, but they still show BALANCE as $3000 and PAST DUE as $3000.

Based on the language of the settlement and release agreement below, shouldn't they at least change the balance and past due amount to ZERO instead of $3000?  What can I do now to improve this situation?  If there is nothing I can do now, what should I have done differently regarding the settlement agreement when I signed it that would have improved my credit report at the time?


The language of the agreement states the creditor will: 
"hereby release, acquit and forever discharge Defendent and all of his agents, asigns, successors, servants, and representatives (including attorneys), together with any and all other persons who are or might be liable (collectively, the "Defendent Released Parties"), from any and all claims, liabilities, demands, suits and causes of action of every nature and kind, whether vested or contigent, accrued or unaccrued, known or unknowns, in low or in equity, matured or unmatured, whether or not such claims were or could have been brought or raised in the Action."

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Was the lawsuit dismissed with prejudice or without? Is there anything in the agreement that says anything about their "rights"?

The problem you have is that the part of the agreement you quoted says they are merely releasing you from your obligation to pay them. You'd get the same language if you had reached a settlement agreement for 50% off. There's nothing indicating they are prohibited from updating/verifying the historical debt data.

If it was dismissed with prejudice, or there's more info in the release, it may be a different story. 

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Yes, the magistrate case was dismissed WITH prejudice.

Yes, the settlement mentions their rights as follows:

The same section "Release by Plaintiff" starts with the following:

In considerations of the promises contained herein,and the relinquishments of its legal rights regarding any claims arising out of or related to the Action, the Arbitration Claims, the Plaintiff Account or  the Debt, Plaintiff, itself, it's representative managing partners, officers, directors, employees, agents, assigns, successors, servants and representatives (including attorneys), do hereby release, acquit and forever discharge Defendant.....

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I'd get ahold of a consumer rights lawyer. You may have FDCPA and/or FCRA violations. 

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If you are within the Atlanta metro, I would call Skaar and Feagle.  They are great consumer attorneys and should be able to get this taken care of at no up-front cost and with a check in your pocket by the end.  This looks like a slam dunk lawsuit against the creditor in my lay opinion.

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On 3/17/2019 at 11:59 PM, Harry Seaward said:

Was the lawsuit dismissed with prejudice or without? Is there anything in the agreement that says anything about their "rights"?

The problem you have is that the part of the agreement you quoted says they are merely releasing you from your obligation to pay them. You'd get the same language if you had reached a settlement agreement for 50% off. There's nothing indicating they are prohibited from updating/verifying the historical debt data.

If it was dismissed with prejudice, or there's more info in the release, it may be a different story. 

Even if it hadn't been dismissed with prejudice, I don't agree that there is any wiggle room in that settlement language.

It clearly states FOREVER DISCHARGED of ALL CLAIMS, LIABILITY ... OF ANY NATURE AND KIND.   That is as final as it gets.

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21 minutes ago, fisthardcheese said:

It clearly states FOREVER DISCHARGED of ALL CLAIMS, LIABILITY ... OF ANY NATURE AND KIND.   That is as final as it gets.

Right, they can't collect it anymore, but there's nothing stopping them from updating the credit report entry to $0 and verifying the account if OP disputes it. 

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Sure it is. One must learn how to move the court, and negotiate with the OP. I filed a federal case against Equifax, and things worked out fine. There was settlement negotiation between Equifax, attorneys and myself by email. My case was approved and the judge scheduled a chambers meeting. The attorneys was doing everything not to attend. So by email we negotiated behind the scenes for equifax to delete the accounts i sued over, in return for  a voluntary dismissal with prejudice, stipulating both parties bear there own cost. Judge approve and filed my dismissal next day, equifax deleted the accounts win win for both.

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1 hour ago, Robby8900 said:

Sure it is. One must learn how to move the court, and negotiate with the OP. I filed a federal case against Equifax, and things worked out fine. There was settlement negotiation between Equifax, attorneys and myself by email. My case was approved and the judge scheduled a chambers meeting. The attorneys was doing everything not to attend. So by email we negotiated behind the scenes for equifax to delete the accounts i sued over, in return for  a voluntary dismissal with prejudice, stipulating both parties bear there own cost. Judge approve and filed my dismissal next day, equifax deleted the accounts win win for both.

And this is simple, in your mind? Not everyone has nothing better to do with their time. 

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50 minutes ago, Harry Seaward said:

And this is simple, in your mind? Not everyone has nothing better to do with their time. 

What happened to his post?

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17 minutes ago, Harry Seaward said:
 

It's still there. Right above mine. 

Sorry, Harry.  I meant his first post where he mentioned a Rule 41 dismissal.  

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3 minutes ago, BV80 said:

Sorry, Harry.  I meant his first post where he mentioned a Rule 41 dismissal.

Ha! He deleted it. 

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6 minutes ago, Harry Seaward said:

Ha! He deleted it. 

I wonder why?

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2 minutes ago, Robby8900 said:

I didn't.

I know you had another post about Rule 41 and a thread about arbitration.   They are not appearing.

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2 minutes ago, BV80 said:

I know you had another post about Rule 41 and a thread about arbitration.   They are not appearing.

Yeah, i didn't delete it.

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37 minutes ago, Robby8900 said:

Yeah, i didn't delete it.

My apologies then. 

I wonder if there was a 'reset' on the site. @BV80 did you notice anything else missing? 

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1 hour ago, Harry Seaward said:

My apologies then. 

I wonder if there was a 'reset' on the site. @BV80 did you notice anything else missing? 

I noticed that his thread regarding arbitration is missing.

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1 hour ago, Robby8900 said:
 

i am new on here, and trying to figure things out.

 

We don’t know what happened.   Would you mind starting another thread about your opinion on a motion to stay proceedings vs. a motion to compel arbitration?

I apologize for the inconvenience.

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