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General Credit Forum / Re: POST judgment interest
« Last post by sc1974 on Today at 12:43:04 AM »
what chapter 128 will do ?
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Lawsuit Fundamentals - the Laws / Re: Served via regular mail???
« Last post by BellEbutton on Today at 12:32:07 AM »


Also, if you think about it, when an action is time-barred, the court has no jurisdiction over the subject matter, and therefore it is more logical and efficient to have the case dismissed in the pre-answer stage.


It is not more logical and efficient to have the case dismissed pre-answer stage if you have a counterclaim.
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Yes, I was in court against Wakefield and I messed myself into Summary Judgement. It was around then that Bruno said I was in over my head and suggested NACA. My lawyer was able to turn Summary Judgment into Dismissal With Prejudice. I don't know what he did, but those were the good old days of shoddy documentation.

My point is that we have seen court turn into a losing proposition (unless you are in CA), yet old advice still gets given. All I'm saying is that plaintiffs have found compelling language to argue against arbitration and an increasing number of judges are buying it. Just be aware from the beginning and make your arbitration case with an eye towards appeal.
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The beginning of the end for beating these things in court was when judges started to realize that, unless there was a massive, epic, history making fraud being perpetrated by publicly traded debt buyers, then the CC Statements showing the defendant's name, address and payment history probably weren't forged or found in a dumpster.
 
Same trend with arbitration. Plaintiffs have finally found a compelling, consistent message: "Small claims language is a safeguard to keep someone from pursuing a frivolous arbitration with the sole purpose of increasing costs." Whether or not it's "legal," judges are buying it and forcing defendants to appeal if they wish to continue.

    I hear what your saying but if you didn't go it in court with  Wakefield was it? they could have got a judgement no?

    Point is you have to do something.....against the cookie-cutter debt collectors.

    Who owned the casinos before corporations? mafia
    Who owned the debts before corporations? mafia
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      "...it sounds something arbitrary/not 100% ...you get my drift. "
 

The beginning of the end for beating these things in court was when judges started to realize that, unless there was a massive, epic, history making fraud being perpetrated by publicly traded debt buyers, then the CC Statements showing the defendant's name, address and payment history probably weren't forged or found in a dumpster.
 
Same trend with arbitration. Plaintiffs have finally found a compelling, consistent message: "Small claims language is a safeguard to keep someone from pursuing a frivolous arbitration with the sole purpose of increasing costs." Whether or not it's "legal," judges are buying it and forcing defendants to appeal if they wish to continue.
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     "The Judge denied my MTC arb. He bought OC's argument that the small claims language offers a "cost-saving" option for OCs (cardholder agreement attached)."

      Lots of courts trying to fly through with backed up systems.......especially small claims(but I think there are advantages      and disadvantages for both parties also).

      That "small claims language" you hint about sounds something arbitrary/not 100% ...best if you posted it.

     Think about it....arbitration (w/3rd party like JAMS) costs less for the court system to deal with ....which should make the  court all that much happier to get rid of you.

      "Cost-saving" option should NOT be at the expense of a defendant's case(-maybe good argument)..... 

     
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Lawsuit Fundamentals - the Laws / Re: Served via regular mail???
« Last post by Bubbles on Yesterday at 07:07:40 PM »
The action is commenced upon filing by plaintiff:

ORCP 3  COMMENCEMENT
COMMENCEMENT
RULE 3
Commencement of action. Other than for purposes of statutes of limitations, an action shall be commenced by filing a complaint with the clerk of the court.
[CCP 12/2/78]

https://oregoncivpro.com/orcp-3-commencement/
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Lawsuit Fundamentals - the Laws / Re: Served via regular mail???
« Last post by CleaningUp on Yesterday at 07:00:21 PM »
Generally, actions aren't commenced until they are joined. 
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Lawsuit Fundamentals - the Laws / Re: Served via regular mail???
« Last post by Bubbles on Yesterday at 06:54:21 PM »
Little time to write this morning, however ...

Here in Oregon, and I think in most, if not all states, defendant becomes entitled to discovery the instant plaintiff files its action.

Also, if you think about it, when an action is time-barred, the court has no jurisdiction over the subject matter, and therefore it is more logical and efficient to have the case dismissed in the pre-answer stage.

See section  B(1):

B(1) A party may serve a request on the plaintiff after commencement of the action

https://oregoncivpro.com/orcp-43-production-of-documents-and-things-and-entry-upon-land-for-inspection-and-other-purposes/




I want to go back to the questions of what is he going to base his motion to dismiss on?

So far, the has only anecdotal evidence that it is out of statute.  That doesn't get even to the level of pima facie, let alone be admissible.

And how is he going to get to discovery if he doesn't answer the complaint?  His has to join the suit to get that.

The request for a "bill of particulars" is one way to get it, but not all jurisdictions allow that pre-joining of the litigation.  His state's Rules of Civil procedure will tell him if that is possible.

I don't see much of an opportunity to do what has been suggested without formally answering the complain in some form.

(There is the point that he could produce an affidavit that would satisfy the evidence element, but that would, in effect, make it a one-issue complaint...SOL defense or no SOL defense.  He would be admitting to the account and the delinquency.)
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Lawsuit Fundamentals - the Laws / Re: Served via regular mail???
« Last post by BellEbutton on Yesterday at 06:34:32 PM »


You didn't, but you suggested no motion was required. A Motion is required of the defendant or the subject will never get in front of a judge.

No, I did not suggest a motion was not required if you want the lawsuit dismissed.    Here's my quote:

Quote
A MTD is proper if the action is time-barred.


Then I asked"

Quote
However, if the plaintiff is a debt collector as defined by the FDCPA, why would you file a MTD instead of filing an answer and counterclaim for a violation of the ACT?

In other words, wouldn't it make more sense to file an answer and counterclaim for violation of the FDCPA?
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