noob2dis

Being sued by Velocity Investments/Lending Club--- Need help figuring out next steps

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Hey everyone! I came across this website in my googles and have spent the past 2 days reading up on A LOT in this forum, for which I am eternally grateful for! All the knowledge and help that have been provided has been weirdly comforting to me, knowing I'm not the only one going through this, so thank you all so much! 

Despite that though, I'm still feeling very anxious, nervous, and uncertain about this whole process, it's the first time I’ve ever had to go through this, so any guidance and advice on how to proceed would be tremendously appreciated.

I've filled out & included the questionnaire below but am including my general inquiries here to get right down to it.

So, first things first, I wasn't personally served with the summons, my father received the summons and complaint for the suit since I wasn't home at the time, so I believe that means I have 30 days to file an answer. I set an appointment to file my answer for tomorrow morning but I will be pushing that back to give myself more time to be more informed and see if I should file the motion to compel in order to begin the arbitration process instead.

I was using LawHelpNY to formulate my answer and, during the walkthrough, was asked about how I was served and, apparently, I was supposed to receive a mailed copy of the summons in the mail since it wasn't given to me directly, but haven't received anything like that. It said I wasn't served properly as a result, so, just for clarification, does that mean I can claim I wasn't served correctly in my answer? Would it be correct to claim that even? Aside from that, I wanted some insight into what else to include in my answer. I wonder if a straight denial is out the question, or should I dispute specific allegations within the complaint? I can claim three things to be true as far as the allegations are considered: my name and address are correct, I recognize Lending Club as the original creditor, and the transaction took place in NY. So, if I proceed to claim lack of knowledge for the other allegations, do I have to defend why that is? For the most part, I am not sure what the amount left to be paid was for the loan, nor do I recall the account number, and I've seen that I could claim lack of standing because I've never directly done business with Velocity Investments themselves. Is that the case here? Could I claim lack of standing with Velocity? That's where my confusion lies with this truth vs. denial business. Any light that can be shed in how I can formulate my answer would be tremendous help for me, I would so appreciate it. I just don't want to screw anything up and get ahead of myself here.

As for arbitration, is it really the best route to take? (I pasted the arbitration agreement I could dig from LC below for reference.) It's incredibly intimidating to me, so I'm wondering, if I go down this road, do I have to hire a lawyer? I'm unrepresented at this point in time, but I've consulted 2 different lawyers, but they told me what I already know through my google searching, so not sure if I should really bother with one at this point. Of course, it'll be beneficial but I'm unemployed at the moment and strapped for cash, which is why I'm even considering arbitration to begin with because I don't think I can settle, so I really don't have the means for a lawyer right now. Also, would it be worth to try to negotiate and reach out to them to see if something can be done? Will that need to happen before I file my answer and/or MTC? And any guidance as to what to include in my MTC and how to draft it (as per NY rules) would mean the world to me!

I'm incredibly sorry for the long post, but I wanted to be thorough here, so, if you made it this far, you're a saint, thank you! 

I appreciate any and all responses, thanks for taking the time to help me out! I appreciate it so much!

___________________________________________________________________

1. Who is the named plaintiff in the suit?

Velocity Investments, LLC

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

Malen & Associates

3. How much are you being sued for?

$7600 

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

Lending Club

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

My father gave me the summons that was delivered.

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

In person

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

Yes 

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

None that I'm aware of

9. What state and county do you live in?

NY, Orange County

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

August 2018

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

July 2017

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

6 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).

It just says Pre-RJI on the court site

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Through a credit repair agency earlier this year, yes

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, not personally, but I don't know if the credit repair agency I worked with did this.

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 days, included copy of S+C below; No questionnaire included.

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

Nothing.

18.  How did you find out about this site?

Google

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Arbitration Agreement:

21. Arbitration. RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (b) BELOW. If you are a "Covered Borrower" as defined by the Military Lending Act (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this section 21 Arbitration is not applicable, you do not need to opt out of or take any action to ensure inapplicability.

a. Either party to this Agreement, or any subsequent holder, may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section 21 (the "Arbitration Provision"), unless you opt out as provided in section 21(b) below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of this Agreement, any Loan Agreement and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 21(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to WebBank, c/o Lending Club Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must

clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.

c. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to customeradvocacy@lendingclub.com at any time, or by calling (888) 596-3157 from Mon-Fri 6:00 AM to 5:00 PM PT and Sat 8:00 AM to 5:00 PM PT.

The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or Judicial Alternatives and Mediation

Services ("JAMS"). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.

d. If we (or the subsequent holder) elect arbitration, we (or the subsequent holder, as the case may be) shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We (or the subsequent holder, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we (or the subsequent holder) pay them and we agree (or the subsequent holder agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction.

f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 21(f), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this section 21(f) shall be determined exclusively by a court and not by the administrator or any arbitrator.

g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the

relationship of the parties and/or Lending Club; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan or Loan Agreement or Promissory Note(s) or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than section 21(f) is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in section 21(f) are finally adjudicated pursuant to the last sentence of section 21(f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

S+C (Velocity)_Redacted.pdf

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@BackFromTheDebt I appreciate your response, thank you! What do you mean by knowing how to make the claim though? In terms of how I would make that claim in my answer? There's a template that my county's court provides that lists that as a response to the summons, so I'll just have that checked off in my answer (I attached it below just so you get what I mean lol). 

Considering I only go that route in my answer, and they do move to dismiss the case, I realize that they might come back again, but I'm wondering if I have any leverage in reaching out to them and telling them I plan on going through with arbitration. Would they be willing to negotiate with me on a way to settle the db without going back to court to fight it? 

Thanks again for your help!

Consumer-Credit-Answer.pdf

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What I meant is there is a certain way to move for a dismissal without prejudice for improper service.  I don’t know the procedure, or even if it is worth it.  
 

One tactic is just to file an MTC, and get it over with.  

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@noob2dis

According to the NY court website, a summons and complaint can be handed to someone else for you.  

“Common Examples of a bad Service”

I never got any papers starting the case

You must be given papers that start the case, like a summons or a petition, in the right way. You can get them when someone gives them to you, or leaves them with someone else for you, or leaves them on your door. If you found out about the case because there is already a judgment against you and you didn’t get the papers any other way, this was bad service.

https://www.nycourts.gov/CourtHelp/GoingToCourt/badService.shtml

 

 

 

 

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@BackFromTheDebt I see what you mean, I am leaning towards filing the MTC tomorrow along with my answer and seeing where that goes. I was interested in pursuing the dismiss without prejudice route for the improper service, but, as you say, it's probably not worth it, especially if they're likely to just come back again.

@BV80 Yes, that was the case for me seeing as my father received the summons in my absence, but I never received the mailed copy of it in the mail that's supposed to follow in-person delivery of the complaint, so that's why I was questioning whether it was bad service or not. Thanks for pointing this out though, I appreciate it. 

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So I just filed my answer, I didn't file my MTC because I didn't realize that I would have to file a Request for Judicial Intervention in order to have the motion filed. Plus, I only budgeted for the $45 motion fee, not the RJI (which is $140) so I'm likely going to have to come back to get that filed next week. 

I'd like to wait to see what Velocity's next move will be following my answer before moving to file my motion. My intent to arbitrate is there within my answer so I'm hoping it prompts them to step back before judicial intervention is required, but we'll have to see what happens.

I'm also feeling out of my depth here, I'm still unrepresented, so I think I'm going to seek counsel with a lawyer as well, because I don't want to get caught in a "gotcha" moment with these guys, but, anyone out there, have you had a lawyer to help you figure out these next steps with you or are y'all just going it alone for the most part? 

Is there a time I should be seeking a lawyer (especially if I'm going to have a court date??)

{Logic screams NOW but I feel like everyone in these forums have managed to do this alone, and I can only afford so much}

Anyway, off to mail these certified copies now, any other advice on next steps would be greatly appreciated!

 

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On 10/2/2020 at 12:25 PM, noob2dis said:

So I just filed my answer, I didn't file my MTC because I didn't realize that I would have to file a Request for Judicial Intervention in order to have the motion filed. Plus, I only budgeted for the $45 motion fee, not the RJI (which is $140) so I'm likely going to have to come back to get that filed next week. 

I'd like to wait to see what Velocity's next move will be following my answer before moving to file my motion. My intent to arbitrate is there within my answer so I'm hoping it prompts them to step back before judicial intervention is required, but we'll have to see what happens.

I'm also feeling out of my depth here, I'm still unrepresented, so I think I'm going to seek counsel with a lawyer as well, because I don't want to get caught in a "gotcha" moment with these guys, but, anyone out there, have you had a lawyer to help you figure out these next steps with you or are y'all just going it alone for the most part? 

Is there a time I should be seeking a lawyer (especially if I'm going to have a court date??)

{Logic screams NOW but I feel like everyone in these forums have managed to do this alone, and I can only afford so much}

Anyway, off to mail these certified copies now, any other advice on next steps would be greatly appreciated!

 

I feel your pain. I was there not long ago. I followed the advice here, did a TON of research and homework and things are going pretty much to play. This much I CAN tell you, follow the instructions on the courts website to a T. This keeps you adhering to the rules of your court. I am happy I have  not paid someone to do what I have done so far. It it/was WORK. Don't get me wrong. Like most have said, focus on getting a MTC granted. It opens up new doors. That is where I am at. I did get hit with a curve ball when the JDB attorney filed for an MSJ.... It just meant back to the forum and the books to get it right. And I did, and their MSJ was tossed and my MTC was granted. It can be done. My two cents. So many of these guys and gals have helped me. I am trying to give back what I can with the limited knowledge I do have. I told them I would and I stand by my word. 

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