Topic: JDB filed suit. Have not been served.

[ohheckno]

I cannot find a Warning Order in my local paper.  Filing was a month and a half ago.

I have never received anything in writing from the JDB or the collection agency law firm.  I have no idea what this debt is.  I only saw it because I was helping out a friend and had to look up something in my county's docket, and decided to search for my last name on a whim.

My current address is on my Experian credit report.

If they get a default when my current address is on my Experian credit report and has been since I moved, is a warning order that I haven't seen yet proper service of process?

[Fighting Irish]

Why don't you go down to the courthouse, get a copy of the summons and complaint, and get working on your answer?

That will mean that you are being an active participant in the case, rather than passively waiting for the anvil to drop on your head.

If you haven't done so, read the flyingifr method, and pay special attention to the chain of custody.

[ohheckno]

I wasn't sure if that would mean I'd been served properly.  Heh.  I guess I do have a jump on them now.

I have a strong feeling it's in statute, and if it is and it's large, I may have no choice but to BK.  If it's small enough to be a nuisance by answering if they ever properly serve me, I may be able to avoid it.  But my EX report shows my current address as reported several months before they filed.  I don't think even the most creditor-friendly states would say "diligent effort" includes failing to run a skiptrace.

[Fighting Irish]

Unless it's an OC, you have all the chances in the world of winning, especially if you take it to private contractual arbitration.

Which means that you have another topic to learn: how to make a JDB cry by forcing them out of the courtroom, and into private contractual arbitration.

The chances that a JDB actually has the admissible evidence to hang you are laughably small. Read the chain of custody, enough times that you could explain it to someone else.

The problems occur when you don't understand the chain of custody, and you don't understand how to challenge their "business records."

Just assume that you are taking a crash course in consumer law, and that your social life will leave something to be desired for the next few weeks.

[survivor23]

JDB,  they fight dirty. The first dirty trick is not serving you, while pretending to the court they did. I had a JDB that did not even try to serve me, and went online and found out about summons, and they IMMEDIATELY requested "special service" (in my state, means putting the summons in the paper) because I was "dodging" the summons.

I went to the court house, and got a copy of the summons so I would understand what it was all about.

I then shocked them by showing up for the special service motion. They were not expecting me, so there was a court reporter present, and now hindsight, I realize that this was the first time the judge ever acted honorably, (because he was being recorded). They made up some lie about my car, (not my car) being in the driveway, etc. I told the judge how everything was a lie, and how this was consistent with how this firm handles things, (had a copy of a class action lawsuit, etc).

I also said that the court did not have jurisdiction over me, and this case could not be tried. Because of that, they were unable to serve me right then and there, since I did not give them jurisdiction.

The plaintiff then changed their "special service" to alias summons, since special service is easily defeated if challenged. If not served properly, everything gets thrown out, and they have to start over, which is a waste of money.

The judge agreed that they were allowed to write me a letter, and put it in the mail, and I would be considered served. The judge said that even though what they did was wrong, they still have the right to serve me properly, and gave them the go ahead to put the summons in the mail.

The plaintiff could not comply. Instead, they sent some henchmen to the house, and they pretended to try to break in. They stalked me, and waited for me to leave the premises. I backed out of the garage, and into my driveway, (10:00PM at night) and I almost ran over a guy that was sitting on my driveway. I did not see him in the dark, and when I backed out like a bat out of , (I got a call from my son to pick him up), I saw a dark shadow leaping into my bushes.

I then texted my other son to call the police.

The stalker/ later confirmed process servor, then proceeded to the bang on the windows, and then, jerked the door knob open as if he was trying to get in. My older son, wanting to protect the house and acting on instinct, (he is very big and tall, 14 year old) then answers the door, and the process servor gave him the papers, and mistaked my son for my husband. He said, "you must be blah blah blah"

So even with a judges consent to put the notice in the mail and consider me served, the plaintiff, JDB, could not help but do things the criminalistic way they always do things, stalking surveillance, trespassing, even putting himself in harms way, after all I almost ran over the guy).

This let me know what to expect. They were easily defeated in court. EASILY. So sloppy. no evidence. Sending in green lawyers fresh out of wherever they came from. They spent more and more on the case, and never got anything back. The last hearing, the managing partner showed up, to dismiss the case.  ( I recognized her name from all the class action files).

My advice,,, be the one pulling the strings.

They started all this with the summons.

If you summon someone to court, you better pray that they either , dont show up, or that they have a air tight case, (which is laughable).

I learned so much going to the court house.. Goto the courthouse, get a copy of the summons, (will cost you), but its well worth it.

[KFMAN]

I would save BK as my last wildcard, just after I ran their bill in JAMS.

[ohheckno]

I got a copy.  It could be worse.  Chain of custody is an issue but it's the first purchaser of the debt.  Of course their "Certificate of Assignment" is laughable, but my state has an interesting requirement about proof of assignments not being required unless I swear an affidavit that I believe one or more of the instruments to be a forgery.  I'm doing research now to look at the JDB and attorney's histories and FDCPA lawsuits against them, so I have evidence to show in the affidavit why I "verily believe" it.

They neglected to provide anything other than their "Certificate of Assignment" and "Affidavit of Business Records" linking me to said debt.  Not even a single account statement. 

The amount is likely to make them dislike going into arbitration. 

Of course my mind is going over possible affirmative defenses, etc... but right now I'm wondering about strategy.  Should I wait until they actually perfect service against me before doing anything, and just research my little rear off?  Looking at my state's arbitration laws I'm not seeing anything about answering the complaint making me lose arbitration rights.  And the address they used in the complaint is one that I have not lived at in seven years.  Since the debt is in statute, that takes some doing! I think demonstrating that checking my credit reports would have given them my address would make service by warning order (which they haven't done yet) failure to do a diligent search.

[Just Plain Bill]

The plaintiff could not comply. Instead, they sent some henchmen to the house, and they pretended to try to break in. They stalked me, and waited for me to leave the premises. I backed out of the garage, and into my driveway, (10:00PM at night) and I almost ran over a guy that was sitting on my driveway. I did not see him in the dark, and when I backed out like a bat out of <Removed>, (I got a call from my son to pick him up), I saw a dark shadow leaping into my bushes.

I then texted my other son to call the police.

The stalker/ later confirmed process servor, then proceeded to the bang on the windows, and then, jerked the door knob open as if he was trying to get in. My older son, wanting to protect the house and acting on instinct, (he is very big and tall, 14 year old) then answers the door, and the process servor gave him the papers, and mistaked my son for my husband. He said, "you must be blah blah blah"

What actions did you take against the 'henchman' and process server?

[KFMAN]

I got a copy.  It could be worse.  Chain of custody is an issue but it's the first purchaser of the debt.  Of course their "Certificate of Assignment" is laughable, but my state has an interesting requirement about proof of assignments not being required unless I swear an affidavit that I believe one or more of the instruments to be a forgery.  I'm doing research now to look at the JDB and attorney's histories and FDCPA lawsuits against them, so I have evidence to show in the affidavit why I "verily believe" it.

They neglected to provide anything other than their "Certificate of Assignment" and "Affidavit of Business Records" linking me to said debt.  Not even a single account statement. 

The amount is likely to make them dislike going into arbitration. 

Of course my mind is going over possible affirmative defenses, etc... but right now I'm wondering about strategy.  Should I wait until they actually perfect service against me before doing anything, and just research my little rear off?  Looking at my state's arbitration laws I'm not seeing anything about answering the complaint making me lose arbitration rights.  And the address they used in the complaint is one that I have not lived at in seven years.  Since the debt is in statute, that takes some doing! I think demonstrating that checking my credit reports would have given them my address would make service by warning order (which they haven't done yet) failure to do a diligent search.

It doesn't matter if it's the 1st or the 10th purchaser, they more than likely can't prove you owe the ALLEGED debt.  If this was my issue, I would make them bring a person to court from the OC to Authenticate ALL DOCUMENTS.

[ohheckno]

Thanks for the reminder.   

Right now I'm doing a "first things first" idea.  They haven't served me, so I have time to research my Answer very well.  I don't have to think of witness lists right away -- they did include a "bill of sale" but it only has the signature of the OC, so I don't know if that's sufficient or not.  They didn't include anything from the original creditor with my name on it, tho they did include the agreement they're using to keep charging me interest... which includes an arbitration agreement.

I'm just trying to figure out if it would be better to file my Answer *before* they have served me, to make it easier to write the Motion to Compel Arbitration. 

[CleaningUp]

Whether you know it or not now, you need to be thinking of witnesses right from the start. 

Witnesses are needed to authenticate evidence.  The "who" of the witness is not quite relevant at this point; that they need one is.

The Bill of Sale is hearsay until the person that signed it testifies, or they provide someone else with qualifications sufficient to establish it's veracity.

The most powerful tool that the consumer has at his disposal when drawn into court is the power to render the other party's evidence useless.

We are often accused of being "rough on people" and being uncaring.   But it is important for the newbie to grasp that the situation is not as his life of experience has taught him.  The reality is very different; rules of evidence are one of those elements that makes one's historical perceptions destructive to his own cause.

[Fighting Irish]

The person who signed a bill of sale won't, most likely, know that YOUR account was among the hundreds to thousands of accounts sold in that sale.

That would make them a very good witness to call, no?

Nor will they have personal knowledge of your account, even if by some enormous stretch of the imagination they knew that your account was specifically included in that bill of sale.

The person who signed the bill of sale is most likely a regional VP, or assistant VP. How many of them are in the habit of having "personal knowledge" of the accounts of their credit card customers?

[KFMAN]

Did the contract have JAMS Arbitration in it?

[ohheckno]

Yep, and that very fact leads me to one question. 

If an arbitration clause exists and I elect arbitration, does that mean that jurisdiction and venue in Circuit Court are still proper?  Paragraph 2 of the complaint is fairly boilerplate, that venue is proper because I'm a resident of that county, and therefore the Court has jurisdiction. 

I could just admit it, but I'm leaning toward admitting my residency but denying the rest because the arbitration clause states "any dispute ... will be resolved by binding arbitration if either you or we elect to arbitrate".

[Fighting Irish]

If you admit it, then you are stating, not only that you owe money, but that you owe to the JDB, who can't prove that you owe it to them.

If you elect arb, be prepared to get the JAMS demand to the JDB's attorney, and send it and the proof to the JAMS office, along with your case management fees.

You'll almost surely need to file an MTC arb, because JDB's don't willingly go there.

You don't say what the amount of the debt is.

But divide it by 20. That may be what was paid for it. If you were trying to collect, say, $4000, that you had paid $200 for, would you be willing to pay even the $550 creditor piece of the initial fee for arb?

Much less, the creditor's coverage of the entire rest of the cost of arb?

You need to do more reading. Go through the arb stickies, go through the chain of custody, and read enough of the threads to learn what some of the issues might be.

You do have time. But you need to make this your newest educational pursuit, in order to be successful.