Author Topic: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement  (Read 1883 times)

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texagg

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Hello All! Happy New Year!

Discover decided to sue me after 3.5 years. How sweet of them.

I was served by private service, over a long holiday weekend of course, to shorten the time I have to respond.

At any rate, I understand I have a Waiver affirmative defense, as Discover forces user to agree to an optional Arbitration agreement. It's forced, as it's part of the agreement, but optional as either party may elect to use it, and, once either party elects to use it, the other party must also use it. They have it conveniently posted online.

https://www.discover.com/credit-cards/cardmember-agreement/arbitration.html

So they have sued me in JP Court - Small Claims through their 3rd party debt collector, https://rsieh.com/

I am thinking a motion to dismiss with prejudice would end this now, given the Waiver affirmative defense.


I'd need to file my answer with the Court by Tuesday, 1/10 so time is of the essence. Any good advice?


Bruno the JDB Killer

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #1 on: January 04, 2017 09:24:15 PM »
I am thinking a motion to dismiss with prejudice would end this now, given the Waiver affirmative defense.

Keep dreaming, this will never happen. The current D agreement posted on line does not apply to you. The one that controls is the one in effect when you defaulted 3.5 years ago. It probably says the same thing, but don't make the mistake of using the wrong agreement.

You have to answer using arb as an affirmative defense, then file a motion to compel.  Read the JP court rules so you know what to do procedurally.

Don't expect arb to be a magic bullet against D or Rausch, that is all this firm does. In a lot of cases, D will spend hundreds of thousands in arb chasing a few grand just to teach you a lesson. In other cases they walk away. Your level of legal competence has a great deal to do with their decision. Don't make any mistakes.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

texagg

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #2 on: January 05, 2017 09:05:27 PM »
Wow I've read a ton of stuff on this. I really need to go to law school, I think I would enjoy defending people. I'd probably spend some time doing pro bono work. I love this stuff!

Ok, so far I have found a few of what I think are violations... specifically,

15 U.S. Code 1692g  No notice sent to me from JDB/Law Firm. Initial service does not count as notice. Them saying they sent me notice doesn't count either. They must prove it with recorded service. This is AKA "the g notice".

They did not attach a copy of my allegedly signed agreement (or indeed, any) copy of a credit card agreement. And have refused to answer my telephone request for one. I finally downloaded them from the excellent online achive, all four versions in force at the time.

Now there is an active question as to this debt is SOL. The last purchase was made in 9/12, and in Texas, the SOL is 4 years. The alleged account was effectively closed as a condition to reduce the interest rate at that time. Other than interest and fees, no new charges were incurred after that date. Does this sound like a valid argument?

There are a few more flaws I found, but this one would pretty much sink their ship.





CleaningUp

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #3 on: January 06, 2017 02:00:50 AM »
Unless your state law is specific about contacting before suit...some do, some don't, and they are called "right to cure" by those that do...there is NO OBLIGATION under the FDCPA to contact you BEFORE they file their court case.  Since legal pleadings are specifically excluded from the "initial contact" section, there is no "initial contact" in play under the statute.

It might just be worth discussing here whether a 30-day right-to-cure notice that is legally mandated by a state (and not specifically involving the FDCPA) would trigger the FDCPA requirements.

Clydesmom66

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #4 on: January 06, 2017 02:35:17 AM »
15 U.S. Code 1692g  No notice sent to me from JDB/Law Firm. Initial service does not count as notice. Them saying they sent me notice doesn't count either. They must prove it with recorded service. This is AKA "the g notice".

Nope.  Texas does not require that they give you any notice before suing you for the debt.  They only have to prove you were properly served according to the rules of civil process in Texas. 

They did not attach a copy of my allegedly signed agreement (or indeed, any) copy of a credit card agreement. And have refused to answer my telephone request for one. I finally downloaded them from the excellent online achive, all four versions in force at the time.

The courts are well aware that NO credit card agreement is signed and are not looking for one.  I don't know where you read that but it is fatally flawed.  Add to that, Justice Court ooes not require that any proof or evidence be attached to the complaint.  Discover does not have to answer your telephone request for anything now that they have sued you.  You either engage in discovery through the courts following the process (in Justice Court you have to request approval to do it and file it through the court) or they can ignore your demands.

Now there is an active question as to this debt is SOL. The last purchase was made in 9/12, and in Texas, the SOL is 4 years. The alleged account was effectively closed as a condition to reduce the interest rate at that time. Other than interest and fees, no new charges were incurred after that date. Does this sound like a valid argument?

No, it does not sound like a valid defense based on what you posted including your statement in your first post that they sued after 3.5 years.  The last purchase has NOTHING to do with the SOL.  When did you make the last PAYMENT?  That will determine the SOL.  It is 4 years from that date.  If your last payment was in January of 2013 then they have until January of 2017 to sue.  When they filed the suit compared to when the last payment was made will determine if the SOL has expired.  If it is 3.5 years from your last payment they filed timely and you can't use that defense.

There are a few more flaws I found, but this one would pretty much sink their ship.

None of what you posted will sink their ship.  I suggest you post these other "flaws" because so far you don't appear to have any and are in over your head.

I'd need to file my answer with the Court by Tuesday, 1/10 so time is of the essence. Any good advice?

Be VERY careful.  If you want to invoke arbitration then you have to answer that way.  Texas Justice Court will consider your having waived your right to arbitration if your participate in the litigation process and some of the Justice Courts have considered answering the suit participating. 

Also, Discover is an aggressive litigator.  They will not be scared off by arbitration and WILL follow you into it.  There are many threads on here from those who thought this would work and found out the hard way it would not.  Which Justice Court is this in?  I may have some insight having sued a collection agency in Texas Justice Court and won.

It might just be worth discussing here whether a 30-day right-to-cure notice that is legally mandated by a state (and not specifically involving the FDCPA) would trigger the FDCPA requirements.

Texas does not have a right to cure.  The only state I know of that does that is North Carolina.

Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

texagg

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #5 on: January 06, 2017 03:03:19 PM »
I believe I have a answer the suit with a General Denial with Arb as an Affirmative Defense. I can't see how that would be construed as "participating in the legal process" which waives Arb, as I MUST answer or risk a default.

So that is the plan now. Which arb outfit should I choose? Anyone have any success with Discover in arb?

I will negotiate for the best deal I can make, but they might push me into bankruptcy. Can't get water from a stone.

Bruno the JDB Killer

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #6 on: January 06, 2017 03:12:04 PM »
You can answer without waiving arbitration. JAMS is the most expensive, that will give you a little leverage for a better deal.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

texagg

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #7 on: January 06, 2017 03:47:48 PM »
Excellent, thank you!

So how would I the process work for selecting JAMS? I write the attorney, or Discover directly? Sorry for the dumb questions, first time going to arb.

Bruno the JDB Killer

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #8 on: January 06, 2017 04:33:33 PM »
The agreement has instructions. Go to the JAMS web site and open a case. It's fairly self explanatory.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: Sued by Discover - Need Help in Motion to Enforce Arbiration Agreement
« Reply #9 on: January 06, 2017 05:53:31 PM »
If you file a place-holder complaint to a arbitration organization now, you come into court with a strengthened hand.  It shows the court that you are serious...You can do it with JAMS with a $50 deposit.

texagg

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Just to close this, I settled with them for 60%, paid over time with $50 payments. I did get an Agreed Judgement however, they agree to not get an Abstract as long as I make my payment.  The account will also show as "Current", and eventually "Settled for Less than Original Amount".

I know I can appeal, or even file bankruptcy, but I think the terms are pretty favorable.

Bruno the JDB Killer

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You cannot appeal a case you settled. They will take your money until they can catch you being one day late. You never mentioned how much this was for, unless I missed something. It appears you never followed up on arbitration, either.


 but I think the terms are pretty favorable.



They are, but not to you. If this debt is 5K or more, your payment barely covers post judgment interest. Your payments go towards legal fees and interest first. You'll probably never touch the balance. Good deal you made. Never saw it coming, did you?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

texagg

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Settled for 2/3 of the last billed amount. No attorney's fees. No court costs. No Interest. (Pre or Post)

I don't think I could have gotten a better deal in anything except bankruptcy.

texagg

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You cannot appeal a case you settled. They will take your money until they can catch you being one day late. You never mentioned how much this was for, unless I missed something. It appears you never followed up on arbitration, either.


 but I think the terms are pretty favorable.



They are, but not to you. If this debt is 5K or more, your payment barely covers post judgment interest. Your payments go towards legal fees and interest first. You'll probably never touch the balance. Good deal you made. Never saw it coming, did you?

You can appeal a settled judgement in Texas.

CleaningUp

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Don't fool yourself about not filing an abstract.  Lawyers "forget about" that bit at least a dozen times a week.  And once it is filed it is really difficult to get it "unfiled".