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Being sued in Arkansas


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3 hours ago, Xtreme98 said:

I wasn't going to post this but i think i will for a short time anyway. Just so i can see what everyone's thoughts are.

respone to motion to dismiss RED.pdf 1.1 MB · 8 downloads

Not only have my thoughts not changed they are reinforced.  I would file a response to their opposition based on @wernda1234post and vehemently opposed to their getting a trial date at this point.  I would also look in to laches in that they waited far too long to pursue this.  

Specifically in response to #6 I would state that while the circumstances are sad they have no bearing on the case or counsel's failure to adhere to court procedure in requesting a continuance for the first delay or for neglecting the case for an entire year after returning from medical leave.  As to #8:  irrelevant to court procedures and is a personal problem.  Neither prevent counsel from complying with the rules of civil procedure.

 

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I am so grateful to have this community. You guys/girls are awesome. All of this information has been so very helpful. I am typing a response now.

As i was typing i was looking through some of the other filings. They have a Certificate of Service mail date of Oct 8th 2019 but was not filed with the court until November 18th 2019. I would have to look and see when i actually received them but is it normal to mail over a month sooner than filing with the court?

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@Xtreme98

If I recall from waaay more than a year ago, the Plaintiff attorney(s) messed up their own case by doing double filings days or weeks apart because of their own ineptitude!  In fact, didn't they file an MSJ back then claiming you were too late in filing an answer to the original complaint?  I believe you submitted proof they were 100% wrong -- which shows this attorney group is very unorganized.  Now they have COVID excuses?! 

Since they know how to play on sympathy more than they know about law, it certainly wouldn't hurt to mention all of their other 'chaos' throughout the case as you put together a dismissal for lack of prosecution.

Best of luck!

Jimmy

 

 

 

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Thanks @Jimmy E You are correct. I will use those reasons for sure.

So i just received a call from the judges office stating that the other side has filed a response to my motion to dismiss and that a hearing date has been set for June 24th via zoom. I told the clerk that called that i wanted to file a response and she said i could do that but the date was still set. So looks like i have to maintain composure and somehow make this work. I am not good at speaking publicly and i hope i don't mess this up. A little shaky this morning tbh.

Its only been a few days since this opposition was filed. I am filing my response in just a few minutes but im not sure that it matters now. I did state in my response that i strongly oppose a trial at this time. Its amazing that they finally set a date after the pity party letter.

 

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@Xtreme98,

It seems to me there has been an error -- that error being the judge never ruled on your timely filed 'Motion to Compel Arbitration' (or in the alternative, stay proceedings pending arb), which I believe you filed at the same time as your answer to their original complaint!

Perhaps some fellow members can opine, but the whole timeline of events show how confused the Plaintiff was (is):

  • June 2019 -- Plaintiff files complaint
  • Aug. 2019 -- Plaintiff in retrospect admittedly did not let you know it filed.
  • Sep 2019 -- You answer complaint timely AND file motion to compel arb
  • Oct 2019 -- Plaintiff sends discovery, which you answer in Oct 2019
  • Nov 2019 -- Plaintiff files MSJ wrongly saying they sent you discovery in June 2019 and your answers are too late.
  • Nov 2019 -- Screwed up on their dates, Plaintiff sends discovery AGAIN, -- though you have PROOF you already answered.
  • Dec 2019 --  You file opposition to their ill-timed MSJ
  • Jan 2020 -- Plaintiff withdraws their ill-timed MSJ

....rest of 2020 -- Crickets

  • Almost 15 months later....End of Mar 2021 -- you file MTD for lack of prosecution
  • Mid Apr 2021 -- Plaintiff submits 'teary-eyed' reasons for delay in moving case forward (no legal reasons listed).
  • Current day - Mid Apr 2021 -- Judge DENIES your request, and the next day schedules a remote hearing for this summer!

Besides the Plaintiff not being able to keep track of dates for their case, it seems the 'dominoes' started to fall when the motion to arbitrate was lost or ignored.  That's why I'd re-file it.  I would argue the original motion to arbitrate be granted, and if not, then discovery is still ONGOING, no?

Anyone??

Sorry for the length.

Jimmy

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@Xtreme98

Btw, I thought you might find it interesting that the Plaintiff attorney of record (from Missouri) has more than 700 court case filings in Arkansas ALONE -- with more than HALF still being adjudicated.  To top it off, that only goes back to July 2020!!  My, my, where DOES her time go?

I shudder to know the number of cases she is juggling in her home state -- and who knows what other states in which she practices.  I can sympathize with people who have legitimate reasons for sitting on a case, but NOT when that same person has clearly had time to file suit after suit after suit.  Sad really.

Jimmy

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@Jimmy Eseems like very valid points. I contacted the court clerk and she told me this was not a trial date and was a date for the motion to dismiss that I filed. So now i am a bit more confused. I am still green to the course of actions so maybe this is normal. Looking at the court filings online it shows my motion to dismiss was denied. So what am i missing?

 

Damn! That is a lot of cases.

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10 minutes ago, Xtreme98 said:

@Jimmy Eseems like very valid points. I contacted the court clerk and she told me this was me this was not a trial date and was a date for the motion to dismiss that I filed. So now i am a bit more confused. I am still green to the course of actions so maybe this is normal.

 

Damn! That is a lot of cases.

@Xtreme98

Ahh, I see what's going on.  I looked at the "ORDER."  This document was written and submitted by the PLAINTIFF.  A regular person, like me, upon first read makes it appear that it was written by the judge himself!.

In other words, it's written from the PERSPECTIVE of a judge, with a signature  and date line, and declares:  "...that Defendant's Motion to Dismiss is DENIED" -- and hoping judge will sign it.  

Instead, the judge 'DENIED' their 'ORDER.'  This normally means the judge is not convinced of the reasons Plaintiff is giving for the long delay in moving the case along.  But he's also not convinced he should dismiss the case -- hence, the hearing. 

Since it's a hearing, be HEARD!  Look into Ark case law to see if there are similar cases. I wouldn't be afraid to show how Plaintiff attorney, who had all of these time-consuming emergencies, still had time to file hundreds of other cases in the state.  You might find that when the attorney was "unavailable," she was in court somewhere (which you may be able to document), or otherwise not attending the family emergency.

I'd certainly listen to what others on the forum have to say, but you can't have too much ammunition -- legal or otherwise.  I only include the 'otherwise,' because the Plaintiff attorney did not list a single legal reason why she let time expire on your case. If the judge is going to take into account 'non-legal' reasons, then you can easily combat this attorney.

 

Jimmy

 

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@Xtreme98

To be completely fair, I suppose you have to deduct the 'CLOSED' cases.  That still leaves an extremely large number!

The reality of it is not different than most JDBs -- they file as many cases as is possible -- counting on 90+% of defendants not answering the complaint and losing by default.  The 'easy wins,' the 'low-hanging fruit' where payday happens by her never having to leave the computer.  It should be harder.

I wonder how much sympathy this attorney has for people she's filed wage garnishments against?  Isn't it funny how she sees herself as offering valid reasons for inaction to the court, but to her defendants -- those preyed on and squeezed by wage garnishment offer 'excuses?'  Very hard to sympathize with such a person.

Jimmy

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You have a strong case and I believe you can successfully argue the facts of the case.  

Being prepared will help both with nerves and with you winning this thing.

The key is, that per Rule 41, the plaintiff failed to prosecute the case by non action "in which there has been no action shown on the record for the past 12 months".

They didn't do anything for almost 15 months until they replied to your MTD.  

What they have to do now is show good cause why the case should be continued, and to me, they don't have it.

So, be prepared.  Get your chronological history in events locked down with as much detail as you can.

And when is it time, lay out your case.  Lay out the dates, who sent what when, and make the plaintiff explain to the judge why there any any grounds for your motion to be denied.

Finally, one last prep is the Arkansas Judge's Benchbook.

For Circuit Court, the link is https://www.arcourts.gov/sites/default/files/Civil-Criminal-bench-book-2019.pdf

For District Court, the link is https://www.arcourts.gov/sites/default/files/DistrictCourtBenchbookRev2017.pdf

The Benchbooks have a lot of behind the scenes details of how the courts work.

 

You got this!

 

 

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Nope, not familiar with them.  I was not aware that a JDB would email someone because an email is not considered secure and could be a possible FDCPA violation by disclosing the existence of a debt to a third party without debtor permission.

Is it a notice of a debt or have they filed suit?

If it is a debt notice, and if they included a mailing address, I would mail them a DV; very simple, "I dispute the validity of this debt".

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@wernda1234It does state in the email that if you are not this person please disregard and delete this message. Maybe thats how they get around it. However there is a link that takes me directly to their site and has pretty much all of my info there.

No real login required other than the link.

Isn't there something that prohibits two creditors from collecting the same debt?

 

truaccord.PNG

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7 hours ago, wernda1234 said:

I was not aware that a JDB would email someone because an email is not considered secure and could be a possible FDCPA violation by disclosing the existence of a debt to a third party without debtor permission.

Actually those rules just got relaxed again making it kosher for debt collectors to contact a consumer via text message, email, and social media.

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  • 1 month later...
On 4/29/2021 at 9:38 PM, Xtreme98 said:

So Truaccord has emailed me about this same debt. They are wanting to settle for 60 percent. I am unsure what to make of this. Has anyone heard of them and what is going on?

 

Hi, did you happen to send them a DV by any chance? I just noticed that I received an e-mail from them as well and I cannot seem to find any information about them besides it being a "digital" CA

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@wernda1234 @Clydesmom @Jimmy E

So...rule 41 does not apply to my case as per the judge. 15 months is not a substantial amount of time either as per the judge. 

The judge did pull my original arbitration request  and said she would rule on that but didn't want to blindside the Plaintiff so she gave her 24 hrs. to find a reason why I could not continue with arbitration. I am just blown away right now.

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1 hour ago, Xtreme98 said:

@wernda1234 @Clydesmom @Jimmy E

So...rule 41 does not apply to my case as per the judge. 15 months is not a substantial amount of time either as per the judge. 

The judge did pull my original arbitration request  and said she would rule on that but didn't want to blindside the Plaintiff so she gave her 24 hrs. to find a reason why I could not continue with arbitration. I am just blown away right now.

In the old days one of the CIC posters referred to that sort of court as a “Mayberry court”.  Meaning you are out in the boonies and the judge and the lawyers all know each other through the old boys network.  So the attorneys get all the leeway they want and you get none.  
 

Hopefully you can get this case out of Mayberry and into arbitration.  

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