WillingtoFight593

Being sued by PRA in South Carolina

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On 12/4/2020 at 10:33 AM, WillingtoFight593 said:

Thank you!  Should I bring a prepared application for AAA? 

You'd need to fill out the Demand Form anyway, so having it with you for the hearing doesn't hurt.  Over Zoom it likely will not matter anyway.  Just stating that you are prepared to file the AAA case immediately upon the granting of your MTC should suffice should it come up.   Other than that, I would have a copy of your MTC with you in case you need to reference, answer questions about it or repeat the case law listed on it for the Judge.  Your key point in this hearing should be to state that when an arbitration agreement is present in a contract, case law has established that the only question for court is whether that arbitration agreement is valid.  The remaining merits of the case are for the arbitrator to decide (meaning you should not answer any questions about the debt at all. Only to state that this is a matter for the arbitrator to decide per the contract and case law - and cite that law from your MTC).

Sometimes a judge or the attorney will ask why you want arbitration or they will tell you it will cost you a lot (they are wrong). To those, I would always say that I want arbitration because I am more familiar and comfortable with the rules and informal setting of private arbitration. And if they say it costs you a lot, I would only respond with 'I understand the rules and requirements of AAA arbitration'.

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Thanks @fisthardcheese. Court is tomorrow. I’m as ready as I’ll ever be. I’ll let everyone know how it goes. My main worry is that this is Magistrate Court and from what I’ve read these judges aren’t always that well educated on these things. I’ll try to respectfully educate if need be but I hope I don’t have to do so. 🙏🏼

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HELP!! @fisthardcheese 

So the judge states that I would have had to file a notice of dispute according to the credit agreement in order to pursue arbitration. I was under the impression that sending a copy of the motion to compel arbitration as well as my answer to the plaintiff and and then stating that I am prepared to file the case was a sufficient "notice," but the judge seemed to disagree. I got a continuance until tomorrow morning at 9:30 AM and he says at that time I will either have to argue that I sent a notice of dispute and furnish that notice, or argue the merits of the case if I cannot provide that. What do I do now? The more recent agreements do not even mention a notice of dispute, but the agreement I sent in was the closest one to the time my account charged off so that is what I sent them.

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7 hours ago, WillingtoFight593 said:

HELP!! @fisthardcheese 

So the judge states that I would have had to file a notice of dispute according to the credit agreement in order to pursue arbitration. I was under the impression that sending a copy of the motion to compel arbitration as well as my answer to the plaintiff and and then stating that I am prepared to file the case was a sufficient "notice," but the judge seemed to disagree. I got a continuance until tomorrow morning at 9:30 AM and he says at that time I will either have to argue that I sent a notice of dispute and furnish that notice, or argue the merits of the case if I cannot provide that. What do I do now? The more recent agreements do not even mention a notice of dispute, but the agreement I sent in was the closest one to the time my account charged off so that is what I sent them.

Basically, the judge violated a supreme court ruling and made a bad ruling.  You can't prove you sent something you didn't send.  

 

You need to find out the appeal procedures in that court.  In some cases you could appeal that one ruling.  In some you would need to appeal the entire case.  

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35 minutes ago, BackFromTheDebt said:

Basically, the judge violated a supreme court ruling and made a bad ruling.  You can't prove you sent something you didn't send.  

 

You need to find out the appeal procedures in that court.  In some cases you could appeal that one ruling.  In some you would need to appeal the entire case.  

It’s not over yet. No ruling has been made. I’m wondering if there’s any angle I can take tomorrow morning because my case is going to be resumed tomorrow at 9:30 AM. He’s saying that because the agreement says I needed to send a “notice of dispute” to the plaintiff, I can’t pursue arbitration; but I may be able to persuade him otherwise. Any help would be much appreciated.

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9 hours ago, WillingtoFight593 said:

If anyone is up, pleeeease help as this case goes on tomorrow at 9:30 AM and I think there's got to be something I can do but I just don't know what :( @fisthardcheese @BackFromTheDebt @BV80 @nobk4me @alwayswinning36

Read the agreement again.  It includes the following:

Unless you opt out of the Agreement to Arbitrate, you and we each agree to resolve any Claims (as defined below) in accordance with the provisions set forth in this Agreement to Arbitrate. Pursuant to this Agreement to Arbitrate, any Claims will be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. 

It says claims will be resolved “exclusively through final and binding arbitration, rather than in court.”   Then it says:

except that YOU may assert Claims in small claims court”

You can sue in small claims. Where does it say that the PRA, the Plaintiff, can sue in court?  From what I read, the claims brought by PRA were supposed to be resolved “exclusively” through arbitration “rather than in court.”    According to the agreement,  PRA could not sue.   Its claims had to be brought in arbitration.  

(Emphasize that the agreement only allows YOU to sue in small claims.)

It appears that PRA is the one who not in compliance with the agreement.

If the judge persists in claiming you had to first send a dispute, I might state that the dispute arose when PRA sued you.  You dispute their claim to own the account and the balance they claim you owe.  The agreement does not state the steps to take when the dispute involves a lawsuit filed by the lender or assignees in violation of the agreement..  You also dispute the fact that PRA sued in court rather than abiding by the agreement which calls for arbitration.  PRA claims to have purchased the account in question but did not abide by the agreement for that account.

Due to the fact that PRA sued you, you had to answer the complaint within a given amount of time.  That answer contained your notice of dispute (didn’t you deny the claims?).  It was properly sent to PRA’s attorney.  
 

 

 

 

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6 minutes ago, BV80 said:

Read the agreement again.  It includes the following:

Unless you opt out of the Agreement to Arbitrate, you and we each agree to resolve any Claims (as defined below) in accordance with the provisions set forth in this Agreement to Arbitrate. Pursuant to this Agreement to Arbitrate, any Claims will be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. 

It says claims will be resolved “exclusively through final and binding arbitration, rather than in court.”   Then it says:

except that YOU may assert Claims in small claims court”

Thank you, I will bring this up with the judge.

 

6 minutes ago, BV80 said:

Due to the fact that PRA sued you, you had to answer the complaint within a given amount of time.  That answer contained your notice of dispute (didn’t you deny the claims?).  It was sent to PRA’s attorney.  

Well...in the answer I had to check a box and due to the advice of @fisthardcheese I selected the box that said improper jurisdiction and just stated the venue was improper due to the arbitration clause.

 

also the agreement I gave them was from 2015 cause it was the last one I could find from Comenity and I gave up looking for 2018 but the 2019 agreement and all others I have from from Synchrony to whom the account was sold states no such thing as notice of dispute, should I bring that up?

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3 minutes ago, WillingtoFight593 said:

Thank you, I will bring this up with the judge.

 

Well...in the answer I had to check a box and due to the advice of @fisthardcheese I selected the box that said improper jurisdiction and just stated the venue was improper due to the arbitration clause.

 

also the agreement I gave them was from 2015 cause it was the last one I could find from Comenity and I gave up looking for 2018 but the 2019 agreement and all others I have from from Synchrony to whom the account was sold states no such thing as notice of dispute, should I bring that up?

I would not only bring it up with the judge, I would emphasize it.  It is important.  PRA should not have sued you in court.  Where does it say anyone but you could file suit in small claims?

You can mention that the agreements differ, but since you raised the issue of arbitration, he might say it was your responsibility to find the correct agreement.

Do the later agreements allow PRA to sue in court?

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14 minutes ago, WillingtoFight593 said:

No they do not. The latest agreement is the first one I shared in this thread

Actually, that later agreement does not have the same language as the earlier one in regard to who can sue in court.  It could arguably allow PRA to sue. 

The judge, however, must go with one agreement or the other.  If he chooses the earlier agreement, PRA should not have sued you in court.

 If he chooses the later agreement, you did not have to send a notice of dispute.  According to the later agreement, you could give notice of your desire to arbitrate after the beginning of a lawsuit.  

7. PROCEDURES. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.

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2 minutes ago, BV80 said:

The judge, however, must go with one agreement or the other.  If he chooses the earlier agreement, PRA should not have sued you in court.

The judge will never see the later agreement unless I bring it up. Do you think I should just stick with the one I sent and argue that PRA is not allowed to sue in court according to that agreement?

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7 minutes ago, WillingtoFight593 said:

The judge will never see the later agreement unless I bring it up. Do you think I should just stick with the one I sent and argue that PRA is not allowed to sue in court according to that agreement?

That has to be your call.  Maybe PRA’s attorney will bring up a later agreement. 

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18 minutes ago, WillingtoFight593 said:

The judge will never see the later agreement unless I bring it up. Do you think I should just stick with the one I sent and argue that PRA is not allowed to sue in court according to that agreement?

After thinking about it, if it were me, I’d stick with the earlier agreement.  Let PRA bring up a later agreement if it chooses to do so. 

Just see what the judge says.  You may get a feel for whether or not you should bring up another agreement.  

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18 minutes ago, BV80 said:

That has to be your call.  Maybe PRA’s attorney will bring up a later agreement. 

Fairly unlikely. I don’t know how this lady even got the case cause she is not the attorney that filed the suit nor is she with that firm. I will probably not bring up other agreements and argue that the agreement I presented states they cannot sue me in small claims court or anywhere else.

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8 minutes ago, WillingtoFight593 said:

Fairly unlikely. I don’t know how this lady even got the case cause she is not the attorney that filed the suit nor is she with that firm. I will probably not bring up other agreements and argue that the agreement I presented states they cannot sue me in small claims court or anywhere else.

When an attorney resides out of town, a law firm can contract with another firm to appear for them in court.

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3 minutes ago, BV80 said:

When an attorney resides out of town, a law firm can contract with another firm to appear for them in court.

I wonder why they would do that when it’s over Zoom? Anyway, I did send a cover letter for the documents I sent that states I sent an answer, MTC and intended to arbitrate, might that count as a notice?

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18 minutes ago, WillingtoFight593 said:

I wonder why they would do that when it’s over Zoom? Anyway, I did send a cover letter for the documents I sent that states I sent an answer, MTC and intended to arbitrate, might that count as a notice?

I would argue that it counts as notice.  

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1 minute ago, BV80 said:

I would argue that it counts as notice

Well we will find out in about 40 minutes. I sent that to the judge along with proof that it was mailed but my main point will be that the agreement does state that only I can sue in small claims court and that otherwise all disputes must be exclusively through arbitration. Thanks so much for your help.

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8 minutes ago, WillingtoFight593 said:

Well we will find out in about 40 minutes. I sent that to the judge along with proof that it was mailed but my main point will be that the agreement does state that only I can sue in small claims court and that otherwise all disputes must be exclusively through arbitration. Thanks so much for your help.

Good luck!

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3 hours ago, WillingtoFight593 said:

HE GRANTED THE MOTION TO ARBITRATE!!!!

The hearing lasted all of one minute!!

Now I just submit the demand form to AAA, yes? 
 

Congratulations!!!  Did you have to point out that PRA was not supposed to sue?

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15 minutes ago, BV80 said:

Congratulations!!!  Did you have to point out that PRA was not supposed to sue?

I did that in response to the plaintiff, but I think the judge would’ve accepted my cover letter and sending it all to the plaintiff as “notice” regardless. She had no case. She tried to say I didn’t use the correct form and didn’t send it to the lender and the judge said “the lender no longer owns the debt, why would she send it to the lender?” But I did state they have no right to sue and read from the agreement and he agreed. Thank you so much @BV80 for your very timely assistance.

The AAA demand letter says to attach a copy of the court order if arbitration is court ordered. How do I acquire the order?

Also, I see @fisthardcheese discusses filing by mail, but see AAA offers a file online option. Should I do that and send it CCCR to the plaintiff?

Thanks again!

 

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1 hour ago, WillingtoFight593 said:

I did that in response to the plaintiff, but I think the judge would’ve accepted my cover letter and sending it all to the plaintiff as “notice” regardless. She had no case. She tried to say I didn’t use the correct form and didn’t send it to the lender and the judge said “the lender no longer owns the debt, why would she send it to the lender?” But I did state they have no right to sue and read from the agreement and he agreed. Thank you so much @BV80 for your very timely assistance.

The AAA demand letter says to attach a copy of the court order if arbitration is court ordered. How do I acquire the order?

Also, I see @fisthardcheese discusses filing by mail, but see AAA offers a file online option. Should I do that and send it CCCR to the plaintiff?

Thanks again!

 

Good for that judge!  I noticed the mention of the dispute to the lender in the agreement and thought about mentioning it, but I really didn’t think it would come up.  

I would contact the clerk of court and explain what the judge said.  Ask the clerk if the judge is going to issue a written order because you need one to include with the paperwork to AAA.

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