Recent Posts

Pages: [1] 2 3 ... 10
1
Arbitration / Re: Summons in AZ by LVNV Funding & Guglielmo for Gettington
« Last post by TM97 on Today at 07:23:26 PM »
Update - Guglielmo dismissed the case without prejudice.  AAA attempted to reach out and no contact from LVNV or Guglielmo.  Case was closed for non-payment.  Past time to re-open the same but can file a new case. 

LVNV sent a Dunning letter today via email.  They have a weblink where you can file a dispute.  I don't trust it.  I will send a DV response to the address in CA listed on the email CMRRR for a proper paper trail.  I will go ahead and start a new AAA filing before they file in Justice Court.  I suspect that is coming given the Dunning just received from another LVNV Credit One collection talked about in a separate thread. 
2
Basics / Re: Social Security and wage garnishment question
« Last post by Flyingifr on Today at 05:50:30 PM »
I was wondering about that. I thought maybe a judge would look at my income from both sources and say I was making more than enough to live on and force me to pay out of any low wages.

Nope. Social Security is not attachable by anyone except the IRS, and then only at 15% (42 USC 407(a)). The Federal Truth in Lending Act, which sets the minimum conditions under which a pay7 check can be attached, does not contemplate anything other than that paycheck in the calculation. In fact, let's say you have three jobs at the same time, and at each one of them you earn just under the Federal Minimum Attachable pay. They cannot be aggregated to make any part of any of them attachable.
3
Basics / Re: Social Security and wage garnishment question
« Last post by jacky123 on Today at 03:52:26 PM »
I was wondering about that. I thought maybe a judge would look at my income from both sources and say I was making more than enough to live on and force me to pay out of any low wages.
4
Basics / Re: Social Security and wage garnishment question
« Last post by Flyingifr on Today at 02:20:37 PM »
I am on Social Security (over 62). California has a limit on wage garnishment. If you make less than a certain amount, your wages cannot be garnished. If I go back to work and make less than the amount they can garnish, would what I get in Social Security matter? Would the court look at both and allow a wage garnishment? Even if my wages are low.

If your earning are below the garnishment threshhold, they are not attachable, period. Getting Siocial Security will not make the non-attachable wages attachable.
5
Basics / Social Security and wage garnishment question
« Last post by jacky123 on Today at 05:47:28 AM »
I am on Social Security (over 62). California has a limit on wage garnishment. If you make less than a certain amount, your wages cannot be garnished. If I go back to work and make less than the amount they can garnish, would what I get in Social Security matter? Would the court look at both and allow a wage garnishment? Even if my wages are low.
6
TCPA / Re: Clarification Needed on DNC Registry and TCPA
« Last post by hamsalad on Today at 04:02:09 AM »
In order to use an automatic telephone dialing system, the caller must have prior express written consent.

You do not need to send a C&D.  Simply sue them for both the calls/texts and violation of the DNC list.  You can ask for treble damages for each violation but may not receive them, unless they are a known offender.
7
Arbitration / Re: Summons in AZ by LVNV Funding & Guglielmo for Credit One
« Last post by TM97 on Today at 02:37:26 AM »
Wasn't a motion to compel of yours from a different case approved?  Or was that case in a different precinct?

Different precinct and different case, that was Gurstel/Midland. 

Quote
If you're sure a motion to compel is likely to fail in your local court, and you also want to wait it out to see if they sue - then, when you are sued, you could try a motion to dismiss along the lines of what CleaningUp said;

Nothing is certain, obviously, but from researching this precinct, the judge uses substitutes to cover some of the case load and answers trigger automatic mediation.  It is time consuming and a hassle but not something that can't be dealt with.  The last time this case went through this precinct, the judge was out of town on holiday.  I suspect that is why the MTC for arbitration was denied. 

Quote
But I still think a motion to dismiss is a loser.  But if you don't want to file an answer, a motion to dismiss is about all you can file to avoid default.  Since a motion to dismiss is a permitted initial response to a complaint, you could also file a motion to compel a little while (like 1-2 weeks) after you file the motion to dismiss (but don't file them together as a combined motion).

Then you'd get clear rulings on each motion separately and your appeal rights for the compel motion will be preserved.  And you don't have to answer unless and until your motion to dismiss is denied.  Again, all of this is non-ideal.

You are familiar with this court system so I trust your judgment on this.  I will still consider it but it would be a lower on the list choice. 
 
[/quote]If you want to avoid any risk of the local court denying your motion to compel (or your motion to dismiss), the choice seems to be limited to a preemptive arbitration filing - and then when they don't pay again - filing a federal (district court) petition to compel arbitration.  This is also expensive and complex.  But you could ask for your costs back before you'll agree to dismiss the arbitration case.

You can be pretty sure that they will ignore your preemptive arbitration filing, just the same as last time.  But if they sue in local court after JAMS has accepted jurisdiction, it may be a violation.  LVNV is the current owner, right?  It is weird that FAS is a subsidiary of LVNV & Credit One, yet this is a debt buyer case - not an OC case.

If you want to get a jump on filing preemptive arbitration, then you might consider delaying DV until the arbitration is filed, or else they may race to the local court as soon as they can - although I think this is unlikely.

The final option is just to let it ride and react to what they do as they do it.  If you go that route, then the DV might also include an outline of the entire history of the prior arbitration, with perhaps a request that they consent to resume arbitration, pointing out their failures in the prior arbitration case.  Maybe copy the DV to both FAS and LVNV. 

Sorry, I don't see an easy, inexpensive path given the limitations you describe.
[/quote]

What I might consider doing is a combination of these things.  I can send the DV and detail the previous history of arbitration and see what response I get.  I will copy it to FAS and LVNV. 

I have the JAMS complaint already and can just go off of that as a template for another case.  I will also follow up with JAMS to see if a previously closed case could be re-opened.  I know with AAA that there is at least 120 days after closure to re-open.  Maybe JAMS is similar and I am still in the window though I doubt it. 

I can send in the JAMS again and start that ball rolling.  Expecting another suit, I can watch the docket daily as I do.  I can then file an Answer and MTC if a case comes up and submit the previous history as well as the new JAMS filing.  If the judge denies, I will do the interlocutory appeal.  The costs are not all up front, and it is possible that if I do file an appeal, they may quickly fold as they did the last time.  This time though I will demand a dismissal with prejudice.  If it goes all the way to appeal, it will obviously be granted knowing what we know about arbitration in Arizona.  That will present another opportunity to settle.  The cost is higher but it is still less than the amount being sought, so if I end up paying out several hundred dollars, so be it. 

I will keep y'all up to date as this unfolds.  First step is the DV with arbitration history and contacting JAMS.  I am working hard on two other cases.  This can get very time consuming with work and life to boot. 

Thanks again for the valuable input.  :)
8
The previous case went instantly to court mediation, MTC arbitration was denied, a MSJ was filed, and I think it was only because of the clerk being on vacation causing delays in posting information on the docket that they sent an offer for stipulated dismissal without prejudice in order to avoid the arbitration.  I truly don't want to go through the hassle of court mediation and the MTC denied which this precinct tends to do.  I can do an interlocutory appeal, but that is going to be rather costly for me.
Wasn't a motion to compel of yours from a different case approved?  Or was that case in a different precinct?

So knowing this precinct and the situation, what strategy would you recommend before it even gets to suit?  I will send a DV letter for sure. 

If you're sure a motion to compel is likely to fail in your local court, and you also want to wait it out to see if they sue - then, when you are sued, you could try a motion to dismiss along the lines of what CleaningUp said;
If they sue, I would be filing a motion to compel arbitration as well as a motion to dismiss with prejudice for their failure to prosecute when they had the opportunity.

I would also be counterclaiming an FDCPA claim for unfair practices which, if you win on your primary defenses, would result in a de jure violation of taking action that they were not entitled to take.  (It would be a stretch, but it would be worth arguing.

But I still think a motion to dismiss is a loser.  But if you don't want to file an answer, a motion to dismiss is about all you can file to avoid default.  Since a motion to dismiss is a permitted initial response to a complaint, you could also file a motion to compel a little while (like 1-2 weeks) after you file the motion to dismiss (but don't file them together as a combined motion).

Then you'd get clear rulings on each motion separately and your appeal rights for the compel motion will be preserved.  And you don't have to answer unless and until your motion to dismiss is denied.  Again, all of this is non-ideal.
 
If you want to avoid any risk of the local court denying your motion to compel (or your motion to dismiss), the choice seems to be limited to a preemptive arbitration filing - and then when they don't pay again - filing a federal (district court) petition to compel arbitration.  This is also expensive and complex.  But you could ask for your costs back before you'll agree to dismiss the arbitration case.

You can be pretty sure that they will ignore your preemptive arbitration filing, just the same as last time.  But if they sue in local court after JAMS has accepted jurisdiction, it may be a violation.  LVNV is the current owner, right?  It is weird that FAS is a subsidiary of LVNV & Credit One, yet this is a debt buyer case - not an OC case.

If you want to get a jump on filing preemptive arbitration, then you might consider delaying DV until the arbitration is filed, or else they may race to the local court as soon as they can - although I think this is unlikely.

The final option is just to let it ride and react to what they do as they do it.  If you go that route, then the DV might also include an outline of the entire history of the prior arbitration, with perhaps a request that they consent to resume arbitration, pointing out their failures in the prior arbitration case.  Maybe copy the DV to both FAS and LVNV. 

Sorry, I don't see an easy, inexpensive path given the limitations you describe.
9
What you want to happen and what will happen are often two, very distinct things.

It's up to you to figure out how to make what you want happen actually to happen.

Stop searching for the "special sauce".  Get to work.
10
Arbitration / Re: Summons in AZ by LVNV Funding & Guglielmo for Credit One
« Last post by TM97 on Today at 12:49:02 AM »
JAMS closed the case - as opposed to administratively staying the case?  If JAMS did close the case, did they (for any time) administratively stay the case prior to closing it?

They closed it due to lack of payment.  The Credit One agreement states they will pay the fee if requested which I did.  JAMS contacted them for several months.  Apparently they never responded at all.  They then contacted me about paying.  I chose not to do so, so it was closed. 

Quote
You're certain the new dunning letter is concerning the same account?  Are you planning any response to the new dunning letter?  If I recall correctly, Frontline Asset Strategies is merely a debt collector - a lawsuit wouldn't likely be imminent after a dunning letter from them the same way it would when a dunning letter is received from a local attorney (like Guglielmo).

Yes, it is the same LVNV account for Credit One.  I never received a Dunning letter from Guglielmo or LVNV previously.  They simply sued.   Yes, I plan to respond with the standard DV letter disputing the debt.  Should I mention previously filed with JAMS or that I will seek dispute resolution through JAMS as provided by the CMA? 

Quote
JAMS may agree to reopen the old case if you have a court order in hand.
JAMS doesn't have jurisdiction unless you've filed w/ JAMS before the lawsuit is filed (and the arbitration case is open), or the other party agrees to such jurisdiction, or the court orders such jurisdiction after a motion to compel.  A motion to dismiss will fail, and after it does you'll still probably need a motion to compel.  I've mentioned the AZ precedent about this earlier in this thread.  I don't think the letters from the prior arbitration case will help with a motion to dismiss, but they should be included with any new motion to compel. 

My view is that a motion to dismiss mucks up the Arizona justice court process even worse, if the goal is to get the case (back) to arbitration.  The ideal initial response to a new lawsuit (in AZ) is a simultaneous answer and motion to compel filed together at the same time.

Would it be the same JAMS case or a new one?  Would you recommend starting the JAMS case all over again now prior to being sued?  Or wait until sued, and then do the Answer and MTC arbitration?

Quote
You're correct that an answer triggers the pre-trial conference (or court mediation in some precincts).   But the time wasted while the motion to dismiss is pending will allow the overall process to advance far enough that a later motion to compel might be thwarted by a summary judgment motion or trial.
That's what I'd do.

The previous case went instantly to court mediation, MTC arbitration was denied, a MSJ was filed, and I think it was only because of the clerk being on vacation causing delays in posting information on the docket that they sent an offer for stipulated dismissal without prejudice in order to avoid the arbitration.  I truly don't want to go through the hassle of court mediation and the MTC denied which this precinct tends to do.  I can do an interlocutory appeal, but that is going to be rather costly for me. 

So knowing this precinct and the situation, what strategy would you recommend before it even gets to suit?  I will send a DV letter for sure.  Thanks.
Pages: [1] 2 3 ... 10
credit