kcoble24

Help Please! Sued by Unifund CCR in CA

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1. Who is the named plaintiff in the suit?

Unifund CCR LLC 

A limited liability company

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

John P. Kenosian

Law Offices of Kenosian & Miele

3. How much are you being sued for?

4192.04

Attorneys Fees, Costs of Suit and other such relief.

4. Who is the original creditor? (if not the Plaintiff)

Barclays Card

5. How do you know you are being sued? (You were served, right?)

Served

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

In person at my home

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

I believe so

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None, they sent threatening letters but no response from us.

9. What state and county do you live in?

CA Kern County

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

12/16/2016

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

11-21-13

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

4 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).

No actions yet as im trying to learn how to handle this, my wife is scared and Im trying to assist.

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). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 Calendar days from 1/14/20

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

A credit card statement.

18.  How did you find out about this site?

Good ole Google

 

THANKS FOR YOUR TIME AND I APPRECIATE THE HELP! WE ARE STRESSING OUT OVER HERE!

 

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Just to update this post, the lawyer has now sent me a letter saying that they are willing to settle if we dont actually go through the legal process. Is this a good idea? I know going through the legal process will be time consuming and super confusing. But has anyone ever tried this?

 

Thanks

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Lots of people have settled, and lots of people have battled in court/arbitration. You have to do what feels right for you. 

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any idea on what to expect if i try to settle? like .50 cents on the dollar etc? if i try to settle will that hurt me if i try to battle in court?

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On 1/25/2020 at 8:45 AM, Harry Seaward said:

You have to do what feels right for you. 

Agree 100%.  This is a decision that, obviously, no one can make for you.  If you feel like you really don't have the time or energy to fight this through arbitration or court, then it is a good idea to think about settling if you can afford to do so.

With that said ... you must know that if you decide to fight, you have a good chance in getting a dismissal -- especially in California, which is a very "consumer friendly" state.  (NOTHNG IS GUARANTEED, but, read on ...)

It is important to understand that the business model of the JDB (junk debt buyers) is based on a "numbers game":
- MOST people don't do anything at all after they are sued (usually because they are scared/stressed/in bad mental & emotional places in life), so the JDB's end up with a "default judgment" in their favor and collecting all the money they sued for by garnishing wages, etc.
- Most people are not lawyers/cannot afford lawyers/do not have access to the law/are overwhelmed about the law/are not educated enough about their rights ... so when they try to fight the lawsuit, they are easily scared/bamboozled into settling.

Because of this, the JDB's know that if they sue enough people (the "numbers game")  they will keep turning a HUGE profit. 

In general, "Business" is about spending your resources (money, people, time, energy, etc.) on what is most profitable to you. 
-  Those very, VERY FEW who fight back while knowing what they are doing, are not worth their time and energy ...
-  ... Why would they be?  When they can spend their resources on those who are truly profitable:  the overwhelming majority who don't fight, or don't know what they are doing.

Hence ... all the dismissals.

Because this, like any business model, is about maximizing profits.

IN CALIFORNIA (the only state in which I have any experience whatsoever), it has been the experience in the forums -- especially since the CCP 98 ruling of the Supreme Court of California last year -- Meza v. Portfolio Recovery Assocs., LLC, No. S242799, 2019 WL 641517, *12 (Cal. Feb. 15, 2019) -- that the JDB's prefer to dismiss the lawsuits before they get to court.

As a matter of fact ... I'm not sure if I can remember an instance in almost a year where there has NOT been a dismissal by the JDBs.  Maybe @RyanEX can chime in and correct me if I'm wrong.  And that is with the regular "court route."

For those who arbitrate (which I have no experience with), it is my understanding that they are almost  all dismissals from the JDBs across the board.  In this perhaps @fisthardcheese, @Harry Seaward, @Goody_Ouchless, or @BV80 can give you more accurate numbers.

All of this to say that if you decide to fight, you have a good chance.

Now, I am not a lawyer (MOST contributors to this forum are not lawyers), and NO ONE can guarantee you a dismissalNot even a lawyer.  And if you decide to fight, it is an investment of time and energy.

You, and only you, know if you have that time and that energy.

If you can afford a lawyer, that is always the best route to take.  They can advise you in depth of all your options.

But, if you decide to fight, the community here is dedicated (as non-legal volunteers) to guide you.

Many of us found this forum because we were in your same shoes.  We are here to pay forward the help that we received at one time in the past.

All the best,

@LoveIsPower

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Thanks for your response Love Is Power, With that information I feel like I am ready to fight this and see what happens. My wife has tried contacting Lawyers and they say that the amount is too small for their services. I will continue to do my research when it comes to fighting this. My question is this: From my research Arbitration is the best play here correct? If so, do i fill out a motion for Arbitration as my response to the lawsuit?

 

Thanks!

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1 hour ago, kcoble24 said:

Thanks for your response Love Is Power, With that information I feel like I am ready to fight this and see what happens. My wife has tried contacting Lawyers and they say that the amount is too small for their services. I will continue to do my research when it comes to fighting this. My question is this: From my research Arbitration is the best play here correct? If so, do i fill out a motion for Arbitration as my response to the lawsuit?

 

Thanks!

Both arbitration and the trial route are good options in CA, as the CA code is favorable to consumers going the trial route. But the trial route (which is what I did in my lone case) is longer, and from what I've gathered, substantially more involved than arbitration. I don't know much about arbitration (one of these days I'll get to reading some of those threads), but you'll be in good hands with some of the other members who are & if for some reason that doesn't work out, you'll still be in good shape with the trial route too.

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1 hour ago, RyanEX said:

Both arbitration and the trial route are good options in CA, as the CA code is favorable to consumers going the trial route. But the trial route (which is what I did in my lone case) is longer, and from what I've gathered, substantially more involved than arbitration. I don't know much about arbitration (one of these days I'll get to reading some of those threads), but you'll be in good hands with some of the other members who are & if for some reason that doesn't work out, you'll still be in good shape with the trial route too.

Agree 100%!  If for some reason arbitration doesn’t work out, then the regular court/trial route is working like gangbusters for us in California. 
 

@Harry Seaward post above (#2) has the main link for the arbitration info. It’s @fisthardcheese’s quite brilliant breakdown. Also @NetworkEngineer is going through arbitration in Cali right now and can give you some great guidance. 

If you are quite serious about hiring a lawyer in California  (or at least talking to one), I keep seeing Ian Choudhury’s name on the forums. I know of two contributors who have used him and gotten dismissals.  I cannot vouch for him because I have never used his services, let alone talk to him, but, if I am not mistaken @calawyer has recommended him before. Here is his website:

https://californiacollectiondefense.com/

Again, I have never used his services, so I cannot vouch for him.  But, I am sure, if you do a forum search you’ll see his name pop up. You can then talk to the contributors who have used his services.

Keep us posted!

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I am so confused! I dont know what im supposed to do first and how! I have read that I need to answer the lawsuit first, that I need to file a MTC for Arbitration and no answer or both at the same time. Im trying to get this submitted by tomorrow and get this stress a little resolved as far as the deadline is concerned can anyone point me in the right direction. Thanks!

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Also where is everyone getting the information to fill in for the MTC is there sample where i can just fill in the blanks?

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1 hour ago, kcoble24 said:

Also where is everyone getting the information to fill in for the MTC is there sample where i can just fill in the blanks?

Try here:

https://www.creditinfocenter.com/community/topic/331706-california-sued-by-calvary-court-vs-arbitration/?tab=comments#comment-1386967

This is @NetworkEngineer's thread (read it from the beginning).  He is currently pursuing arbitration in California and he just got his MTC (Motion to Compel) Arbitration granted not long ago.  He posted his documents on the last post.

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I see that and I see he is arguing certain points and citing case law for them. Do I have to do that? Or is it possible to send the motion without citing specific case law as I'm just trying to get the case to arbitration before the due date at this point. Is there anyone that can help me individually? I can pay via PayPal for your time.

 

Thanks 

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2 hours ago, kcoble24 said:

I see that and I see he is arguing certain points and citing case law for them. Do I have to do that? Or is it possible to send the motion without citing specific case law as I'm just trying to get the case to arbitration before the due date at this point. Is there anyone that can help me individually? I can pay via PayPal for your time.

 

Thanks 

Why not send a personal message (PM) to @NetworkEngineer and @fisthardcheese at the same time? A lot of members give more detailed help on PM's. Especially if it is sensitive info that we don't want posted publicly.

Go to the little "envelope" on the upper right (to the left of your name), click "compose new," and in the "to" field type their names in (without the @ sign).  Their names will pop up and then you can message with them direcly.

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If you need a little time to learn and figure out the MTC, just focus on the answer only for now.  The answer is the most important thing to filed on time to avoid a default judgement.  The answer essentially only needs to deny all of the allegations in the Plaintiff's complaint.  You can also include an "Affirmative Defense" section where you state the defense of "Lack of Jurisdiction due to a private arbitration clause".  Just get that filed on time and you can take a few more days to figure out the MTC

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Okay, so an update:

I filed the general denial (stating the affirmative defense for arbitration) and proof of service. Everything was accepted and now we have the following:

Case Management Conference schedule for May

Order to show cause for July

Order to show cause for December.

I am wondering how i proceed now, Is now the time I file a Motion to compel arbitration and if so is there a good template I can use to submit that?

Thanks again for everyone's help you have made this wayyyyyy less confusing!!!

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On 2/20/2020 at 3:00 PM, kcoble24 said:

I am wondering how i proceed now, Is now the time I file a Motion to compel arbitration and if so is there a good template I can use to submit that?

Now is that time.  I would get it in ASAP but for sure 30 days prior to the May hearing date.  Check your court's rules on motions and time allowed prior to a hearing to be sure.

The general template is in the link in my signature below.

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Okay, I have the Memo of points and authorities completed. and the MTC done. What do i need to include with these 2 docs? I have seen an affadavit for credit agreement mentioned. I would assume i need to mail these out and provide a proof of service like I did with the General Denial. I would like to get everything sent in today. any help would be greatly appreciated!

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You will need to locate your card's card member agreement and see if it has an arbitration clause. That's the key to this entire motion. A good place to find cardmember agreements is here: https://www.consumerfinance.gov/credit-cards/agreements/

Once you locate your cardmember agreement (and you verify that it has an arbitration clause),  Fill out the Affidavit of <your name> and have it notarized at a Notary. This is the only thing you will need to have notarized. I think I posted a redacted version in my docs earlier in this thread. If I didn't, let me know.

Include it with your Memo of Points & Authorities along with a copy of the cardmember agreement you found above.

You need to send these to the plaintiff and have the person who sent the docs complete the proof of service (can't be you.). 

Next, file a copy of the docs you sent to the plaintiff with the court, including the completed proof of service. 

Good Luck !

 

- NE

 

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Okay, so everything has been filed and my Affadavit was denied. The comment was needs face page. I have googled the face page and cant find any info. I contacted the court clerk and they were no help lol

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On 3/17/2020 at 1:51 PM, kcoble24 said:

Okay, so everything has been filed and my Affadavit was denied. The comment was needs face page. I have googled the face page and cant find any info. I contacted the court clerk and they were no help lol

@RyanEX is there some required info to include on a cover or face page for an affidavit in CA?

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On 3/25/2020 at 4:04 AM, fisthardcheese said:

@RyanEX is there some required info to include on a cover or face page for an affidavit in CA?

@kcoble24

Unfortunately I'm not aware of any. Perhaps "cover/face page" meant this??:

Samp.JPG

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