GuyinAK

Sued by Absolute Resolutions Investments

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Hello all!

As the title states, I'm being sued. I'll do a copy paste and fill in the blanks.

 

1. Who is the named plaintiff in the suit?

Absolute Resolutions Investments

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

Mandarich Law Group

3. How much are you being sued for?

$14,000

4. Who is the original creditor?

Elan Financial Services

5. How do you know you are being sued?

Picked up a Certified Letter with a surprise Summons in it.

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

Mail

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

As far as I'm aware.

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?

Alaska

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

01/24/2018

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

04/01/2014

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

3 years.

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).

"05/15/2019 Summons and Notice to Both Parties of Judicial Assignment"

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).

40 Days. Picked up the letter June 7th, the date on the summons is 05/15/2019

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

Bill of sale for the debt, Asset Schedules, CC statement from 07/2018.

18.  How did you find out about this site?

Frantic internet search using "Mandarich , Absolute Resolutions Investments, sued", and here I am.

 

I've been doing quite a bit of reading here, and man, so much information! Seems like I need to send them some type of answer asap, then I'm thinking this is leaning towards arbitration?

Doing my best not to stress as I knew this was going to happen some day. I thought they would reach out and try to make a deal before hand, but... nope.

 

Thoughts? Questions?

Thank you for reading!

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If arbitration is available, I would go with that.  Being in Alaska gives you some advantages, I think.  If JAMS is in the contract, you are entitled to a hearing in your area.  Imagine the travel expenses for an arbitrator based in the east coast to Alaska.  Expenses which the JDB will have to pay.

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Arbitration is written into the cardmember agreement I found.

"43. Arbitration Provision:
(a) You agree that either you or we can choose to have binding arbitration resolve any claim, dispute or controversy between you and us that arises from or relates to this Agreement or the Account and credit issued thereunder (individually and collectively, a "Claim"). This does not apply to any Claim in which the relief sought is within the jurisdictional limits of, and is filed in, a small claims court. If arbitration is chosen by any party, the following will apply:
(1) NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY, EXCEPT AS PROVIDED FOR IN THE APPLICABLE ARBITRATION RULES.
(2) Arbitration will only decide our or your Claim, and you may not consolidate or join the claims of other persons who may have similar claims. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A SUBJECT TO ARBITRATION.
(3) The arbitration will be performed in accordance with this Arbitration Provision and the rules of the chosen arbitrator in effect when the Claim is filed.
(4) The arbitrator’s decision will generally be final and binding, except for the limited right of appeal provided by the Federal Arbitration Act.
(5) Other rights that you would have if you went to court might also not be available in arbitration.
(b) The party commencing the arbitration may select to use either JAMS or the American Arbitration Association ("AAA") (or, if neither of these arbitration organizations will serve, then a comparable substitute arbitration organization agreed upon by the parties or, if the parties cannot agree, chosen by a court of competent jurisdiction). If JAMS is selected, the arbitration will be handled according to its Streamlined Arbitration Rules unless the Claim is for $250,000 or more, in which case its Comprehensive Arbitration Rules shall apply. If the AAA is selected, the arbitration will be handled according to its Commercial Arbitration Rules. You may obtain rules and forms for JAMS by contacting JAMS at 1-800-352-5267 or www.jamsadr.com and for the AAA by contacting the AAA at 1-800-778-7879 or www.adr.org. Any arbitration hearing that you attend will take place in the federal judicial district where you reside. At your request, we will advance your filing and hearing fees for any Claim you may file against us. If you prevail on your Claim, we will pay your arbitration costs and fees, other than attorney, expert and witness fees and expenses. We will also pay any fees or expenses that applicable law requires us to pay. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1 through 16, including but not limited to applicable statutes of limitation, and shall honor claims of privilege recognized at law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
(c) This Arbitration Provision shall survive repayment of your extension of credit and termination of your Account. This Arbitration Provision shall be governed by federal law, including the Federal Arbitration Act, and by Ohio law, without regard to its internal conflict of law principles, to the extent such state law does not conflict with federal law or this Arbitration Provision. This Arbitration Provision shall not apply to a party who is a covered borrower under the Military Lending Act. Notwithstanding any language of this Agreement to the contrary, should any portion of this Arbitration Provision be held invalid or unenforceable by a court or other body of competent jurisdiction, this entire Arbitration Provision shall be automatically terminated and all other provisions of this Agreement shall remain in full force and effect.

 

Wouldn't the arbitrator be able to video or phone in for a hearing? (Where I don't know) I know the courts do that in other types of cases up here.

I have the "JAMS arbitration demand" PDF and will read into it. Need to figure out how to word an answer and incorporate that in.

Thank you for your advice!

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Would I use these forms to answer and demand arbitration?

 

civ-481.pdf

civ-805.pdf

Edited by GuyinAK
Added file

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I'm not familiar with Alaska procedural rules, but it looks like you have to use these forms?   You need in your answer an affirmative defense of lack of jurisdiction due to a binding arbitration clause in the contract.  You can include in it "other."  I would also check Defense No. 3, challenging the JDB's standing.

 

Note the JAMS consumer rules:

https://www.jamsadr.com/consumer-minimum-standards/

See No. 5:  The consumer must have a right to an in-person hearing in his or her hometown area.

Yes, that means the arbitrator is travelling to Alaska.

Note this is the best info on arbitration:

 

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

 

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I've been reading the Arbitration overview, good stuff.

I don't know if we HAVE to use those forms, but there are a boat load of them on the court website and I grabbed what I thought would work..

Would you please see the attached and tell me if I'm getting warm in regards to an answer?

Thank you very much for your help!

Side note, I'm sure the Arbitrator would love a day trip to Alaska. ;)

civ-481a.pdf

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Yes, your draft answer is looking good.  The only thing I would add is in Section E, Request for Relief, is to also check the first box that states: "Dismiss this case because of the defense(s) stated in Section B."  And I would stress that you want private, contractual arbitration.  There may be a court-sponsored arbitration available, which you don't want.

 

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23 hours ago, GuyinAK said:

Done. I'm mailing the card member agreement as well right? (exhibit A)

Yes, if you are using it as an exhibit.  But it may not be necessary to include it in your answer, as you will be including it in your Motion to Compel Arbitration.  

Be sure to complete the certificate of service part too.

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Okay, I misunderstood that there will be 2 separate responses. I now have a "Motion" filing, and an "Answer". The exhibit is attached to the motion, and everything is signed. :) I'll file and mail today

Thank you!

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1 hour ago, fisthardcheese said:

Was this for a business account or a consumer account?

Consumer.

Thoughts?

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1 hour ago, GuyinAK said:
 

Consumer.

Thoughts?

If it was absolutely a consumer credit card, then I would definitely file the MTC and go with JAMS arbitration.

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Note that I strongly suggest JAMS here because their card agreement sneaks in the AAA commercial arbitration rules.  I am sure this is due to a copy/paste job from their business card accounts, but you don't need the extra hassle with AAA over the applicable rules and subsequent fee structure.

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5 minutes ago, GuyinAK said:

I am planning on using JAMS, so no argument from me.

I was just also reiterating for the sake of others who may read for answers to their similar cases.

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Just got an email from the court system; " Order granting Motion for Stay of Proceeding due to Arbitration ".

I believe I should now fill out the JAMS paperwork?

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8 hours ago, GuyinAK said:

Just got an email from the court system; " Order granting Motion for Stay of Proceeding due to Arbitration ".

I believe I should now fill out the JAMS paperwork?

Wait to get a copy of the signed order and include a copy of it with your JAMS filing.

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15 hours ago, fisthardcheese said:

Wait to get a copy of the signed order and include a copy of it with your JAMS filing.

They sent a signed copy of the order in a PDF attachment. Can I use this?

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Also, how would I got about getting Absolute to foot the arbitration bill since that option is in the cc clause?

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On 7/13/2019 at 2:29 PM, GuyinAK said:

They sent a signed copy of the order in a PDF attachment. Can I use this?

I've only been using computers for 30 years or so, but I'm sure if you print out a PDF it is an exact copy of the document you need.

11 hours ago, GuyinAK said:

Also, how would I got about getting Absolute to foot the arbitration bill since that option is in the cc clause?

This is all covered in the arbitration link in my signature below along with all of the other information.  Include a cover letter with your filing asking JAMS to bill the company for any consumer portion of the filing fee per the card agreement.

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