Sued by Unifund, Need Help w/ Answer (Florida)

[NoWorriesBeHappy]

Hi all! Firstly, thank you so much to those who take their own time to help the users on this board! Time is our most valuable assets and the fact you guys are giving it voluntarily to help those in need says a lot about your amazing character.

Now for my issue:

• Plaintiff: Unifund CCR, LLC
• Original Creditor: Barclay's Bank Delaware
• Case is being handled by a law firm based in Tampa, FL for Unifund. I reached out to this law firm to offer a settlement to avoid all of the back and forth, but they were not willing to budge on their proposed settlement amount (not even on the allotted time to pay the amount) and thus were unable to come to an agreement, so here I am.
• Pre-Trial/Mediation is schedule for early January 2020 in Miami-Dade County
• I was served this Saturday, November 2nd, 2019
• Side note: I've checked all three of my credit reports and this account does not show up anywhere on them. I do, however, see an unrelated Barclay account listed. I know this doesn't necessarily mean much, as the OC is not required to report the account, but it seems odd that there would be one listed and this one not at all.

My goal(s) here:

• I'd like to file my answer as soon as possible, so any help in that regard would be truly appreciated.
• Any other relevant strategies would be greatly appreciated. ie: would seeking arbitration be the more optimal route here or just challenge them on their standing in trial?

===============

 

STATEMENT OF CLAIM
Plaintiff, UNIFUND CCR, LLC ("Plaintiff"), hereby sues MY NAME, Defendant(s)
("Defendants") and alleges:

STATEMENT OF FACTS

1. This is an action for damages that does not exceed $5,000.00, exclusive of costs.
2. Defendant opened a credit account with BARCLAYS BANK DELAWARE, account ************5555 (changed for obscurity).
3. That Plaintiff is the assignee of this debt.
4. Defendant owes Plaintiff the sum of $1,658.17 for principal in connection with Defendant's use of a credit card account.
5. Attached hereto is a Statement of Account referencing the current balance due and account statements.
6. All conditions precedent to the filing of this statement of claim have been complied with by Plaintiff.
   
   WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $1 ,658.17 for principal plus costs in connection with the collection thereof.

 

Attachments included:

• Unifund CCR, LLC Statement of Account --- This document essentially bare bones, typed up list including:
  - My name
  - Original Account Number (does not include full account number, only last four, ie: *****************5555)
  - Account Open Date
  - Last Payment Date
  - Principal Balance
  - Total balance exclusive of costs (same as principal balance above)
  
   
• A number of credit statements allegedly from a Barclaycard credit card listing charges, late fees and accrued interest
   
• Bill of Sale which includes a paragraph describing the sale between Barclays Bank Delaware and First Bank & Trust on March 24, 2017
  - Includes a Recitals section describing that "Seller, Purchaser and Credit Shop, Incorporated, a Delaware corporation, entered into that certain Asset Purchase Agreement, dated as of the 24th day of March, 2017..."
  - It then has two separate signature docs; one with a signature from Barclays Bank Delaware CEO and another duplicate page, but with the signature of someone from First Bank & Trust (illegible title)
  - A mostly blank document with the following sentence: "Extract from account data, provided by BARCLAYS BANK DELAWARE in connection with its sale of
  accounts to First Bank & Trust on 03/24/2017". Includes my name as ACCOUNT NAME and the "Last 4 digits of account number" (ie: ***********5555)
  - A CERTIFICATION from VP of First Bank page describing that the card card receivables set forth on Exhibit A have been sold and transferred to Credit Shop, Incorporated.
  - A signature page of this VP dated Sept.6th 2018
  
   
• Exhibit A: "Extract from Exhibit A, provided by First Bank & Trust in connection with its sale of accounts to Credit Shop LLC fka Credit Shop, Incorporated on 03/27/2017; originally obtained from account data provided by BARCLAYS BANK DELAWARE in connection with its sale of accounts to First Bank & Trust on 03/24/2017:"
  - Lists my name and last four of account
  
   
• Certification of Receivables Sales - "The undersigned, being the duly appointed and currently serving as Secretary and General Counsel of CreditShop LLC, hereby certifies that: (i) the credit card receivables set forth on Exhibit A attached hereto (the "Receivables") have been sold and transferred by Credit Shop, Incorporated, an affiliate of CreditShop LLC, to CreditShop Receivables LLC, an affiliate of CreditShop LLC, through the series of sales and transfers set forth below; and (ii) that the undersigned is fully authorized to execute and deliver this Certificate of Receivables Sales in the
  name of and on behalf of CreditShop LLC."
  - Below that, includes two numbered bullet points stating that 1) the receivables set forth on Exhibit A were assigned and transferred from Credit Shop, Inc. to CreditShop LLC through a series of distributions and 2) A transfer from CreditShop LLC to CreditShop Receivables LLC.
  - Followed by a signature page of Secretary and General Counsel from CreditShop LLC
  
   
• A seemingly random doc that states: "Extract from account data, provided by Credit Shop LLC tka Credit Shop, Incorporated in connection with its sale of accounts to CreditShop Receivables, LLC on 11/09/20 17; originally obtained from account data provided by BARCLAYS BANK DELAWARE in connection with its sale of accounts to First Bank & Trust on 03/24/2017:"
  - Lists my name as account name and last 4 digits of account (***********5555)
  
   
• Exhibit 2 Bill of Sale - Describes a sale between CreditShop Receivables LLC to Distressed Asset Portfolio III, LLC
  
   
• Exhibit 1 - "Extract from Exhibit 1, provided by CreditShop Receivables, LLC in connection with its sale of accounts to DISTRESSED ASSET PORTFOLIO III, LLC on 04/04/2018; originally obtained from account data provided by BARCLAYS BANK DELA WARE in connection with its sale of accounts to First Bank & Trust on 03/24/2017:"
  - Lists my name as account name and last 4 digits of account
  
   
• Assignment - Looks like it's to transfer and assigns all rights for collections from Distressed Asset Portfolio III, LLC (Assignor) to Unifund CCR, LLC (assignee)
  - Includes signatures from the same person (Jessica Stevens) for both Distressed Asset Portfolio III, LLC (Inventory Manager) and Unifund CCR, LLC (Manager of Media and Inventory)
  - Followed by the following page: "Extract from account data, provided by DISTRESSED ASSET PORTFOLIO III, LLC in connection with its assignment of accounts to UNIFUND CCR, LLC on 04/04/2018; originally obtained from account data provided by BARCLAYS BANK DELAWARE in connection with its sale of accounts to First Bank & Trust on 03/24/2017:"
  - - Lists my name as account name and last 4 digits of account

 

[BackFromTheDebt]

Stop. 
 

You are in Florida.  Things are different there. If you file an answer, you waive your right to arbitration. 
 

I believe Barclays has an arbitration agreement.  
I can’t remember is there is a small claims cut out or not. 
 

Your homework assignment is to download the  Barclays agreement from the CFPB web site and see what the arbitration agreement says.  
 

If you can take a JDB to arbitration, you usually win outright.  

[BV80]

54 minutes ago, BackFromTheDebt said:

Stop. 
 

You are in Florida.  Things are different there. If you file an answer, you waive your right to arbitration. 
 

I believe Barclays has an arbitration agreement.  
I can’t remember is there is a small claims cut out or not. 
 

Your homework assignment is to download the  Barclays agreement from the CFPB web site and see what the arbitration agreement says.  
 

If you can take a JDB to arbitration, you usually win outright.  

A defendant can file an answer as long as he raises arbitration as a defense in the answer.

We have long held that a party's contract rights may be waived by actually participating in a lawsuit or taking action inconsistent with that right. arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005).

It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration. Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009).

[NoWorriesBeHappy]

@BackFromTheDebt So looks like Barclay's agreement does include mention of Small Claims Court:

Quote

We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed.

and

Quote

Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.   In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court.  If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request.

Here's the source: https://www.barclaycardus.com/applycontent/banking/marketing/rangedcma/Barclaycard/Standard_Credit_Agreement.html

So if I'm understanding correctly based on yours and @BV80's comment above, my best course of action here is to file an Answer citing Arbitration as my defense?

 

[BV80]

9 minutes ago, NoWorriesBeHappy said:

We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed.

That means if they were to file a claim in arbitration, you could request that it be taken out of arbitration and removed to small claims court.  It doesn’t apply to your current circumstances.

[NoWorriesBeHappy]

4 minutes ago, BV80 said:

That means if they were to file a claim in arbitration, you could request that it be taken out of arbitration and removed to small claims court.  It doesn’t apply to your current circumstances.

@BV80 Upon re-reading it, you're absolutely right. I misunderstood that part.

Not sure what I'm specifically looking for in that Arb clause in relation to Small Claims Court; only two references to it are the two quotes I included in my post above.

This is also part of the clause:

Quote

 If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial.

My understanding here is that arbitration can be elected as long as it is done so before the commencement of trial.

[BV80]

7 minutes ago, NoWorriesBeHappy said:

My understanding here is that arbitration can be elected as long as it is done so before the commencement of trial.

That’s my understanding, as well.

[BackFromTheDebt]

Be careful.  If I were you, I would search this forum for Florida posts in arbitration.  

I remember decades ago, my graduate research adviser telling me the easiest research was research in the library.  Except now we have the internet, and we can look up previous posts on CIC.  

Others here have worked out the way to win with arbitration in Florida.  Don't try to reinvent the wheel.  Just see how they did it, and do it exactly the same way.  

Florida is very tricky with arbitration.  If you do things the wrong way, you can be deemed to have waived your rights.  

I thought I remembered the Florida posters saying they would answer with an MTC instead of an answer, but I can't swear to it.  Don't listen to me.  Listen to them.  

[nobk4me]

Maybe I missed it, but what was the last payment date on this account?  The reason I ask is Florida has a borrowing statute for SOL.  Barclays is in Delaware, where the SOL is 3 years.   That the account is not on your credit reports suggests it might be too old to sue on.  If your last payment was more than 3 years before the date the plaintiff filed suit, you should have a SOL defense, which I would use instead of arbitration.  (But arbitration should work, too.)  SOL case law:  L.W.T. v. Brodsky, 2006 WL 3617983 (Fla. Cir. Ct. 2006)

[NoWorriesBeHappy]

@nobk4me Thanks for suggestion. Unfortunately, according to their records last payment date was January 3, 2017.

[Clydesmom]

4 hours ago, nobk4me said:

That the account is not on your credit reports suggests it might be too old to sue on. 

Not in this day and age.  The latest tactic (and it has been around for 2-3 years) is to remove the trade line(s) just prior to litigating to eliminate counter claims in the court case.  It has become a LOT more common these days.  Once the case is over the trade line is re-inserted.

[nobk4me]

On 11/7/2019 at 3:15 PM, Clydesmom said:

Not in this day and age.  The latest tactic (and it has been around for 2-3 years) is to remove the trade line(s) just prior to litigating to eliminate counter claims in the court case.  It has become a LOT more common these days.  Once the case is over the trade line is re-inserted.

OK, I have been thinking about this.  When an account is sold to a JDB, there should be 2 tradelines.  One from the OC, and one from the JDB.  The tradeline from the OC should indicate it was transferred or sold to another lender.  

I can see the JDB removing its tradeline, as you have described.  But that shouldn't have any impact on the OC's tradeline, which should remain for the full 7 years.  If I am understanding correctly, the OP is saying the OC's tradeline is gone as well.  I doubt if the JDB could control how the OC reports to the credit bureaus.

[Clydesmom]

7 hours ago, nobk4me said:

But that shouldn't have any impact on the OC's tradeline, which should remain for the full 7 years.  If I am understanding correctly, the OP is saying the OC's tradeline is gone as well.  I doubt if the JDB could control how the OC reports to the credit bureaus.

It is part of the terms of the sale.  The OC deletes their trade line upon sale and the JDB either doesn't insert one until after litigation or deletes until the suit is over.  Again, the entire purpose is to reduce if not eliminate counter claims.  

[NoWorriesBeHappy]

I spoke to a lawyer regarding this situation. Here's what he informed me, I'm still researching to see how accurate these statements are, but honestly am having a difficult time finding Florida specific information:

1. Florida does not require an Answer to be filed in the typical 20/30 days deadline. Showing up to pre-trial/mediation is how you avoid default judgement.
2. AAA will not arbitrate cases that are part of small claims court

I'm not inclined to believe, or at least have much confidence with this particular lawyer very much as his strategy seems to be to piggy back on these cases in order to sue the collection agency in Federal court. This typically would be perfectly fine if they were counter-suing for good reasons such as an FDCPA debt violation. However, this didn't seem to be the case.

They were hyping up the fact that I wouldn't have to pay anything out of pocket if they won the case, but if they lost I'd be responsible for the total alleged debt. It seemed to me they are using these cases to try and win a quick payday over trying to actually build a solid defense. I personally don't mind paying a fee to have it done the "right" way.

Thoughts?