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Being Sued in South Carolina / Clarkson & Hale, local attorney, Representing Velocity Investment for Prosper Loan


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Docs electronically filed 3/2/21

1) Summons (30 days after service to submit answer)  2) Complaint   3) Affidavit of Account (Velocity compliance officer certifying their documents show I owe this debt)

Served 3/18/21

Prosper balance: $7839.42

Court of Common Pleas South Carolina 

I am moderately familiar with court documents and feel I can create and file required documents.  I have reviewed this thread and made notes about my case. 

I plan to file 3 documents:

1) Answer - including "In your answer, after you deny all allegations in the complaint, you should create a new section with the following title:  Affirmative Defense”.  Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”."

2) Motion to dismiss/Compel private arbitration with JAMS or AAA

3) Affidavit of Fact - "an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise"."

 

I have a few questions which probably mean I am overthinking this entire process.

1. Should I use JAMS or AAA and why? Time is not an issue for me. I have plenty of time but also able to settle for about $3000 out of pocket. I want to make sure that at the completion of arbitration, I am not hit with the arbitration fees.

2. Does anyone here have experience dealing with this in SC? 

3. What should be an expected settlement? 

Prosper 2018 Promissory Note re: Arbitration

18. 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 (i) BELOW. 
(a) In this Resolution of Disputes provision: 
(i) “I,” “me” and “my” mean the promisor under this Note, as well as any person claiming
through such promisor; 
(ii) “You” and “your” mean WebBank, any person servicing this Note for WebBank, any
subsequent holders of this Note or any interest in this Note, any person servicing this Note for
such subsequent holder of this note, and each of their respective parents, subsidiaries, affiliates,
predecessors, successors, and assigns, as well as the officers, directors, and employees of each of
them; and 
(iii) “Claim” means any dispute, claim, or controversy (whether based on contract, tort,
intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing,
present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief)
arising from or relating to this Note or the relationship between you and me (including claims
arising prior to or after the date of the Note, and claims that are currently the subject of purported
class action litigation in which I am not a member of a certified class), and includes claims that 

are brought as counterclaims, cross claims, third party claims or otherwise, as well as disputes
about the validity or enforceability of this Note or the validity or enforceability of this Section.  
(b) Any Claim shall be resolved, upon the election of either you or me, by binding arbitration
administered by the American Arbitration Association or JAMS, under the applicable arbitration
rules of the administrator in effect at the time a Claim is filed (“Rules”). Any arbitration under
this arbitration agreement will take place on an individual basis; class arbitrations and
class actions are not permitted. If I file a claim, I may choose the administrator; if you file a
claim, you may choose the administrator, but you agree to change to the other permitted
administrator at my request (assuming that the other administrator is available). I can obtain the
Rules and other information about initiating arbitration by contacting the American Arbitration
Association at 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org; or by
contacting JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614, (949) 224-1810,
www.jamsadr.com. Your address for serving any arbitration demand or claim is WebBank, c/o
Prosper Marketplace, Inc., 221 Main Street, Third Floor, San Francisco, CA 94105, Attention: 
Legal Department. 
(c) Claims will be arbitrated by a single, neutral arbitrator, who shall be a retired judge or a
lawyer with at least ten years’ experience. You agree not to invoke your right to elect arbitration
of an individual Claim filed by me in a small claims or similar court (if any), so long as the
Claim is pending on an individual basis only in such court. 
(d) You will pay all filing and administration fees charged by the administrator and arbitrator
fees up to $1,000, and you will consider my request to pay any additional arbitration costs. If an
arbitrator issues an award in your favor, I will not be required to reimburse you for any fees you
have previously paid to the administrator or for which you are responsible. If I receive an award
from the arbitrator, you will reimburse me for any fees paid by me to the administrator or
arbitrator. Each party shall bear its own attorney’s, expert’s and witness fees, which shall not be
considered costs of arbitration; however, if a statute gives me the right to recover these fees, or
fees paid to the administrator or arbitrator, then these statutory rights will apply in arbitration. 
(e) Any in-person arbitration hearing will be held in the city with the federal district court closest
to my residence, or in such other location as you and we may mutually agree. The arbitrator shall
apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. § 1-16,
and, if requested by either party, provide written reasoned findings of fact and conclusions of
law. The arbitrator shall have the power to award any relief authorized under applicable law.
Any appropriate court may enter judgment upon the arbitrator’s award. The arbitrator’s decision
will be final and binding except that: (1) any party may exercise any appeal right under the FAA;
and (2) any party may appeal any award relating to a claim for more than $100,000 to a three

I will create all 3 documents and post them here before submitting to the courts next week.

Thank you all for your help!!!

 

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  • 2 months later...

Update:

It seems there has been NO help on this topic which is very disappointing.

4/15 filed with SC Clerk of Court, Common Pleas - 1) Answer, 2) Motion to dismiss/Compel private arbitration with AAA (paid $25 fee), 3) Affidavit of Fact that Promissory Note was a true and complete copy

4/15 mailed all of the above to opposing counsel.

5/1 received "Plaintiffs First Set of Interrogatories to Defendant"

5/17 filed with SC Clerk of Court, Common Pleas - Affidavit of Service of Answer/Motion (not yet visible in online Public Index)

To date:

1. Public Index shows Motion received but no date for hearing (requested 15 min hearing with NO court reporter)

2. Public Index does NOT show Plaintiff's First Set of Interrogatories to Defendant

Made several calls to Common Pleas over the past 2 weeks and they have not been returned. I am now calling daily for the following.

1. The Public Index shows the motion two times with 2 charges but only 1 document. The portal shows a balance due of $25. Is this an error?

2. Question: Was my motion complete (has it been accepted)?

3. Question: Do I have a court date assigned for the hearing (should I do anything to make that happen? when can I expect the date?)(Info: Courts in SC have resumed operations.)

Here is my question if anyone can help?

How should I answer the interrogatories? Should I answer each request as "Objection due to jurisdictional issue addressed in pending MTC" OR must I file an objection to the Interrogatories with the court saying that I previously filed an MTC asserting that 'This Court has no jurisdiction over this case, therefore, pursuant to SC Uniform Arbitration Act Title 15, Chapter 48, SECTION 15-48-80, "(a) The arbitrators may issue (cause to be issued) subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths." and ask that my MTC be granted and private arbitration with AAA is ordered.' (I read the below post)

https://www.creditinfocenter.com/community/topic/331391-received-court-summons-from-velocity-investments-need-help/#comments

Thanks, in advance, for any help.

Also, I will continue to update here in case someone needs this info later (happy to answer any questions).

 

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9 hours ago, pricelessinsc said:

2. Public Index does NOT show Plaintiff's First Set of Interrogatories to Defendant

Discovery requests are not filed with the court.  

 

9 hours ago, pricelessinsc said:

3. Question: Do I have a court date assigned for the hearing (should I do anything to make that happen? when can I expect the date?)(Info: Courts in SC have resumed operations.)

Did you include a proposed order and request a hearing?

https://www.sccourts.org/forms/pdf/SCCA233.pdf
 

9 hours ago, pricelessinsc said:

How should I answer the interrogatories? Should I answer each request as "Objection due to jurisdictional issue addressed in pending MTC" OR must I file an objection to the Interrogatories with the court saying that I previously filed an MTC asserting that 'This Court has no jurisdiction over this case, therefore, pursuant to SC Uniform Arbitration Act Title 15, Chapter 48, SECTION 15-48-80, "(a) The arbitrators may issue (cause to be issued) subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths." and ask that my MTC be granted and private arbitration with AAA is ordered.' (I read the below post)

You answer the interrogatories by objecting due to  lack of jurisdiction and the pending MTC.  I believe @BackFromTheDebthas provided specific objections in the past.  Answers to interrogatories are not filed with the court.

 

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32 minutes ago, BV80 said:

Did you include a proposed order and request a hearing?

https://www.sccourts.org/forms/pdf/SCCA233.pdf

Thank you for all of your help.

I did not submit a proposed order.  I completed Section I and III only because I requested a hearing. MOTION HEARING REQUESTED (attach written motion and complete SECTIONS I and III). The option to submit a proposed order was in Section II.

35 minutes ago, BV80 said:

You answer the interrogatories by objecting due to  lack of jurisdiction and the pending MTC.  I believe @BackFromTheDebthas provided specific objections in the past.  Answers to interrogatories are not filed with the court.

Thanks. Taking a look at the content.

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  • 1 month later...

So whatever happened? I had clarkson file on me last summer for a synchrony debt. I elected arbitration and sent the demand forms. They dismissed with prejudice. Good luck to you. 

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