Lending Club Suit

[shadow99]

1. Who is the named plaintiff in the suit?

UHG I LLC

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

I'll say in PM's - I'm not sure it matters and I'm guessing most attorney's offices have automatic searches set up on the firm name.

Initials are HL.

3. How much are you being sued for? more than 15K, less than 20K.

4. Who is the original creditor? (if not the Plaintiff) Lending Club/Webbank

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

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

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?  I've sent debt dispute letters to UHG's first collection company as well as to the lawyer's office. The 2nd collection company they used just called and I never received anything in the mail.

9. What state and county do you live in? Virginia

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations):  Late summer 2018 - I think it's still within the statute of limitations.

11. When did you open the account (looking to establish what card agreement may be applicable)? I have the agreement from when the debt was made.

12. What is the SOL on the debt? To find out:  Maybe 3 years since they can't produce a signed copy of the contract even in electronic form.  (I have one). Otherwise 5. If it's 3, it's still just inside the SOL due to Virginia tolling the SOL for 126 days.

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  Initial hearing coming up.

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'): Yes

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?:  I'm not required to respond before the hearing date, but I submitted MTC and opposition to certifying business records by affidavit (I only have 5 days to do that).  No interrogatory questions are sent at this point in this court.  If you go to trial, that happens then.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits: Affidavits and other documents with conflicting amounts.  On the affidavit for the business person who's familiar with their record keeping, I can't read the name, there's no title, it may not be notarized.  Also had the bill of sales with no real information and a print out that anyone could have made from a spreadsheet.  Standard stuff I guess.

18.  How did you find out about this site?  I'm a current member.

 arbitration agreement copied below - it's fairly standard with no surprises.

But, under the "default" clause (also copied below), it has this:  "Borrower agrees to pay all costs of collecting any delinquent payments, including reasonable attorneys’ fees, as permitted by applicable law."  Will that come back to bite me if they carry it through to arbitration?  With this amount of money, I know it's very possible they'll pay the JAMS fees.  Also, the arbitration clause is part of the "agreement" but the default clause is part of the "promissory note" that spells out the interest rate, etc and would include my name and electronic signature.  They do not have a filled out version of the promissory note.  Their business records note that it's been destroyed/lost/in digital format/etc.  If it was in digital format and they have it, why couldn't they print it out with everything else?  I may or may not have a copy.

For counterclaims, UHG went through 2 collection companies before the lawyer's office got it.  The first one, I disputed within the 30-day window and they went silent. In it, I included to only contact me at my home address or home land-line during non-work hours. Apparently, they did not pass it on to the 2nd collection company.  They called both the home phone (not in the original contract) and my cell phone, at least once a week for a few months during work hours.  I never received anything from them in the mail so I never disputed directly with them.  Still, both are agents of UHG, as is the attorney's office.  When I disputed with the attorney's office, they immediately filed suit and sent me a packet of documents.

So, I'm thinking I have grounds for the $1000 FDCPA violation plus TCPA violations for the cell phone calls.  I have multiple messages saved, but probably didn't catch them all - so, $500 for each?  Or $1500 for each since I gave them notice not to call and they "willfully" called?

 

Any thoughts?  I'm thinking maybe I'll have to come out of pocket some to settle this one, but I certainly don't want to get stuck with attorney's fees, etc. Would the consumer arbitration rules override the Default clause?  Or, technically, my payments are no longer delinquent, the entire loan is in default?

 

ARBITRATION CLAUSE - part of the borrower agreement, like a card 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, counter‐claims, 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 [email protected] 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.

 

DEFAULT CLAUSE - part of the loan agreement/promissory note - they have only produced a blank copy and said the original has been destroyed/lost/etc.

Default. Borrower may be deemed in default (each, an "Event of Default") of Borrower’s obligations under this Note if Borrower: (1) fails to pay timely any amount due on the loan; (2) files or has instituted against it or any joint applicant/co-borrower any bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (3) commits fraud or makes any material misrepresentation in this Note, or in any other documents, applications or related materials delivered to Lender in connection with its loan or (4) fails to abide by the terms of this Note or the Borrower Agreement. Upon the occurrence of an Event of Default, Lender may exercise all remedies available under applicable law and this Note, including without limitation demand that Borrower immediately pay all amounts owed on this Note. Lender will report information about Borrower’s account to credit bureaus. Should there be more than one Borrower, Lender will report that loan account to the credit bureaus in the names of all Borrowers. Late payments, missed payments, or other defaults on an account may be reflected in Borrower’s credit report. Borrower agrees to pay all costs of collecting any delinquent payments, including reasonable attorneys’ fees, as permitted by applicable law.

[Clydesmom]

44 minutes ago, shadow99 said:

Apparently, they did not pass it on to the 2nd collection company.  They called both the home phone (not in the original contract) and my cell phone, at least once a week for a few months during work hours.  I never received anything from them in the mail so I never disputed directly with them.  Still, both are agents of UHG, as is the attorney's office.  When I disputed with the attorney's office, they immediately filed suit and sent me a packet of documents.

So, I'm thinking I have grounds for the $1000 FDCPA violation plus TCPA violations for the cell phone calls.  I have multiple messages saved, but probably didn't catch them all - so, $500 for each?  Or $1500 for each since I gave them notice not to call and they "willfully" called?

Unfortunately your thinking is wrong.  The dispute you sent to CA#1 has NO affect on CA#2.  The first CA was required to cease collection activity until they validated.  If the JDB chose to simply move it to another CA then you were required to start the dispute process all over again under the FDCPA.  There are no violations of the TCPA with CA #2 because your cease and desist to a different entity does not carry over for that either.  

48 minutes ago, shadow99 said:

Any thoughts?  I'm thinking maybe I'll have to come out of pocket some to settle this one, but I certainly don't want to get stuck with attorney's fees, etc. Would the consumer arbitration rules override the Default clause?  Or, technically, my payments are no longer delinquent, the entire loan is in default?

While consumer rules for arbitration do not allow the award of attorney fees when the contract does not mention them in the terms, I believe that if the contract does provide for it then the terms of the contract prevail.  You would need the opinion of a licensed attorney to be absolutely certain.

The bottom line is you owe a LOT of money.  The chances you can come up with enough violations to make them back down are slim to none.  Arbitration MIGHT make the fold.  Use that to see if you can get a better settlement.  

[shadow99]

12 minutes ago, Clydesmom said:

Unfortunately your thinking is wrong.  The dispute you sent to CA#1 has NO affect on CA#2.  The first CA was required to cease collection activity until they validated.  If the JDB chose to simply move it to another CA then you were required to start the dispute process all over again under the FDCPA.  There are no violations of the TCPA with CA #2 because your cease and desist to a different entity does not carry over for that either.  

While consumer rules for arbitration do not allow the award of attorney fees when the contract does not mention them in the terms, I believe that if the contract does provide for it then the terms of the contract prevail.  You would need the opinion of a licensed attorney to be absolutely certain.

The bottom line is you owe a LOT of money.  The chances you can come up with enough violations to make them back down are slim to none.  Arbitration MIGHT make the fold.  Use that to see if you can get a better settlement.  

Thanks for the reply.  This board has kept me from making a fool of myself several times.

i would have disputed with CA#2 if I had received anything from them with the 30-day notice.  Is that at least a FDCPA violation? I'm sure they'll say they sent it and I just didn't receive it.  I could just as easily say I sent them the dispute letter first class mail, but I know it wouldn't work for me.

It's interesting they were able to get my unlisted home number that was never given to anyone other than in the dispute to the first CA.  Maybe it's on my credit report or something, or I called Lending Club from that number at some point and they kept a record of it.

I am sure you're right, but I don't understand how UHG is not responsible for the actions of both CA#1 & CA#2 as they were acting as UHG's agents - and how there shouldn't be some kind of continuity there.  I have read here how the JDB can just fire a lawyer and hire a new one to get out of violations from the first - if both lawyers are acting as the JDB's agents, that doesn't make sense to me.

My finances are getting to the point I can start paying/settling some of these. I'm not looking to get this one to go away entirely - just settle for 30-50% of the total. I'll continue with the MTC. This will be my 4th and the biggest one. All the rest have been or will be for small amounts.

[BV80]

1 hour ago, shadow99 said:

I am sure you're right, but I don't understand how UHG is not responsible for the actions of both CA#1 & CA#2 as they were acting as UHG's agents - and how there shouldn't be some kind of continuity there.  I have read here how the JDB can just fire a lawyer and hire a new one to get out of violations from the first - if both lawyers are acting as the JDB's agents, that doesn't make sense to me.

If the first CA did not contact you after receiving your DV, it did nothing wrong.  CAs are allowed to cease collection efforts instead of validating.  As @Clydesmompointed out, your DV and cease and desist did not transfer to the 2nd CA.

The 2nd CA probably violated the FDCPA by not sending you a letter, but that’s a weak violation because it’s you said/they said.  Also, since the Supreme Court ruling in Spokeo v. Robins, courts are becoming more strict on technical violations being actual injuries.  

As far as UHG is concerned, while the CAs are its agents, if it didn’t know about the cease and desist, it would a bona fide error defense.  It cannot know that of which it has not been informed.

When did you send a dispute/DV to the attorney?  Did the attorney send you a dunning letter containing the 30-day notice and did you respond within 30 days demanding validation?

[shadow99]

14 minutes ago, BV80 said:

When did you send a dispute/DV to the attorney?  Did the attorney send you a dunning letter containing the 30-day notice and did you respond within 30 days demanding validation?

They sent me a dunning letter with the 30-day notice.  I responded within 30 days.

Within a few days of receiving the dispute letter, they sent me all their paperwork quickly followed by a warrant in debt - which is Virginia's single page notice that you are being sued and where/when to appear. When the sheriff's office served me, the warrant in debt was attached to another copy of all of the paperwork.

(Edit:  Actually, I'm not sure if they sent me any paperwork before the sheriff's office served me - it might have just been the warrant in debt.  I think that's fine, right?  The lawsuit is not considered continuing collection efforts without verifying?)

I've looked everything over again today.  The only thing that doesn't seem right is that the Affidavit of judgement, lost note, and business records certification is not notarized (should it be? I get my affidavit's notarized), I can't read the signature, and the name is not spelled out.  There is a title of account administrator, which I'm guessing is JDB's employee not the OC's.

The bill of sale is only signed by OC's representative, which I'm sure is fine.

It also lists OC as a Delaware corporation while my paperwork lists Utah - I'm guessing they're registered in every state and choose Utah on the contracts/agreements because it's to their benefit.

Is the fact that I did not receive a dunning letter with the 30-day notice from the 2nd CA anything I can work with?  I'm sure they'll claim lost in the mail.

 

 

 

[BV80]

4 minutes ago, shadow99 said:

They sent me a dunning letter with the 30-day notice.  I responded within 30 days.

Within a few days of receiving the dispute letter, they sent me all their paperwork quickly followed by a warrant in debt - which is Virginia's single page notice that you are being sued and where/when to appear. When the sheriff's office served me, the warrant in debt was attached to another copy of all of the paperwork.

I've looked everything over again today.  The only thing that doesn't seem right is that the Affidavit of judgement, lost note, and business records certification is not notarized (should it be? I get my affidavit's notarized), I can't read the signature, and the name is not spelled out.  There is a title of account administrator, which I'm guessing is JDB's employee not the OC's.

The bill of sale is only signed by OC's representative, which I'm sure is fine.

It also lists OC as a Delaware corporation while my paperwork lists Utah - I'm guessing they're registered in every state and choose Utah on the contracts/agreements because it's to their benefit.

Is the fact that I did not receive a dunning letter with the 30-day notice from the 2nd CA anything I can work with?  I'm sure they'll claim lost in the mail.

 

 

 

The attorney validated before sending you the summons, so no violation there.

Affidavits are usually notarized but can also be made under penalty of perjury.  See what your state laws say about the issue.

You could try countersuing for the 2nd CA issue, but it would take some research.  You would need to study case law on agency relationship and vicarious liability.  Also note that the most you could get for that violation is $1000.  If you owed a low amount, $1000 might catch the eye of the plaintiff, but I’m not sure it will make a difference considering the balance owed.  

[shadow99]

Thanks - looks like I'll just use the cost of the MTC as leverage to get a better settlement.

If I can hold them off until April/May, I should be in a position to handle a 30-50% lump sum if they'll take it.

 

 

[shadow99]

28 minutes ago, BV80 said:

Affidavits are usually notarized but can also be made under penalty of perjury.  See what your state laws say about the issue.

Yep - Virginia allows them to be made under penalty of perjury and that statement is in there.

I guess I could do the same with my affidavits?

Shouldn't there be a legible name though?  No way to know exactly who is signing under penalty of perjury in this case. It's literally a scribble of what looks like 2 letters, and I'd have to guess at what letters they are. First could be a K, L, R  - Second could be D, F, H, J, K, M, N - I literally had to run through the alphabet in my head for likely candidates.

Virginia law also allows certification of business records by affidavit - unless you object within 5 days, which I did to the best of my abilities.

The statute doesn't say 5 days from when or say you have to have a reason for the objection - just that if you object, then they can't allow it.

I don't know what that means since I don't want to go to trial anyway, but I learned from you guys that you have to object or lose the right to do so.