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fyresine last won the day on November 26 2016

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  1. Had the final court date - THE CASE WAS DISMISSED WITH PREJUDICE! I filed arbitration with JAMS on 9/28, the date to comply with filing was 9/30, with a court date for a status on 10/18. Still did not hear anything from JAMS at that point, so another court date was scheduled for today. I finally received a letter from JAMS stating arbitration would commence once Midland paid the rest of the filing fee of $950. Well when I showed up to the courthouse today, the lawyer told me that they talked to their client (Midland) and they weren't going to pay the fee b/c they have spent too much money on this case already...in other words, return on investment wasn't going to pay off. My strategy was to make them spend as much money as possible to retrieve this debt. Knowing they are a JDB, I figured they would dismiss after spending a certain amount. These are the steps I took: - File answer, counter affidavit and motion to compel arbitration all at once - Court date for MTC, judge scheduled follow-up court date - Filed through AAA (as it is known that they do not arbitrate with Midland) as close to the cutoff date as possible - Court date for follow-up, show I filed Arb, pending response from AAA. Another court date scheduled in 30 days - Court date - AAA will not arbitrate, judge upholds MTC, given another 30 days to file with JAMS. Court date scheduled 30 days out - Court date - no response from JAMS yet as I filed as close as I could to cutoff date, another court date scheduled 30 days out - Final court date, Midland does not wish to pay the rest of the $950 filing fee to initiate arbitration, is dismissing with prejudice as that is what I asked for in my initial response. If they did not dismiss I could have eventually filed contempt of court. So as you can see, arbitrating with Midland works. Just make sure to rack up their lawyers fees as much as possible File with AAA then move on to JAMS. Seemed to work really good for me. Thank you to everyone on this site who helped me, your advice was invaluable and without it I'm sure I'd be making payments to Midland right now.
  2. So they did not get their judgement, my original compel to arbitrate stands, but the judge wanted me to follow up with AAA and JAMS to see if they would arbitrate with Midland under Citibank original cardholder agreement. I have to update the court tomorrow on the situation. So far I have not heard back from AAA and I'm still pending a response from JAMS as to if they arbitrate with Midland. I don't know what is going to happen if I can't arbitrate just due to Midland not following the laws of the firms.
  3. DEFENDANT'S OPPOSITION TO STRIKE ANSWER AND SUMMARY DISPOSITION Defendant, appearing pro se, for its opposition to the Motion of Summary Disposition by Midland Funding LLC (hereafter "Plantiff") states as follows: 1. On March 14, 2016 Defendant returned home at the address above and found a copy of summons and complaint taped to the front door filed by Plantiff. 2. On March 31, 2016, Defendant sent a letter by USPS certified mail return receipt requested (CMRRR) to Plaintiff's attorney notifying Plaintiff of Defendants intent to exercise their contractual right to elect private contractual arbitration in the American Arbitration Association (AAA) forum, as per the original account agreement's Arbitration Clause. A true and correct copy of the letter is attached. 3. On April 4, 2016, Defendant submitted an answer to the Plantiff’s complaint as well as a counter affidavit in opposition to the notarized Affidavit of Account to the court as well as a Motion to Compel Private Contractual Arbitration. Defendant mailed a copy first class mail via USPS to Plantiff’s attorney. 4.. On April 26, 2016, the Honorable Judge granted Defendant’s motion to compel private contractual arbitration and dismiss or in the alternative stay proceedings pending arbitration within 30 days. 4. On May 23, 2016, Defendant filed arbitration case#: 01-16-0001-6737 with the American Arbitration Association (AAA). Attached is a copy of the filing. 5. On June 24, 2016, Plantiff did not follow the rules of the arbitration firm and failed to arbitrate and/or respond which is in violation of the court order. Attached is the letter from AAA. 6. On August 5, 2016, Plantiff filed its motion for Summary Judgement in violation of this courts previous order to arbitrate. WHEREFORE, Defendant respectfully asks the Court for sanctions on the Plantiff in the form of a dismissal of this case with prejudice. Respectfully submitted, _____________ _________________________ Dated Fyresine Defendant Address =========================================== With this type of response, is a brief needed? Also was going to attach an order ready for the judge to sign for dismissal.
  4. I'm drafting my opposition to their MSD...Do I also need to provide a brief with this opposition? I know the order for arb trumps all of this. And it looks like the letter will show Midland is failing to arb as per ordered. Would it be appropriate to file a motion for contempt at this time? Or can I not really do anything since the order to arb stands and I shouldn't be going through the court system? Or do I just oppose, ask for sanctions to dismiss with prejudice and hope for the best?
  5. Here is the wording of the document I received. Funny they say I never filed an answer or affidavit. Its on record with the court, I have a copy date stamped by the court and all my documents were notarized. And yes I did mail them a copy as well. ================================= PLAINTIFF'S MOTION TO STRIKE ANSWER AND FOR SUMMARY DISPOSITION NOW COMES Plaintiff, MIDLAND FUNDING LLC, moves this Honorable Court to strike Defendant's Answer, pursuant to MCR 2.115(8), and for Summary Disposition pursuant to MCL 600.2145 and MCR 2.116 (C), (9) and (10), as follows: 1. That on or about December 27, 2015, the Court issued a Complaint filed by Plaintiff alleging Defendant is liable for $6,965.37, the amount due Plaintiff on Defendant's account, plus costs. 2. That Defendant has failed to state a valid defense to the claim asserted against Defendant; and/or has failed to come forward with facts giving rise to an issue of material fact for trial. 3. That Plaintiffs claim is based upon the files and records in this case and the sworn verification and account stated attached to Plaintiffs Complaint. 4. That Defendant has failed to file a Counter-Affidavit in opposition to the notarized Affidavit of Account attached to Plaintiffs Complaint, as required by MCL 600.2145. 5.That Defendant has stated no valid defense to the claim and there remains no genuine issue as to any material fact. 6. That Defendant's Answer sets forth denials but fails to set forth substance of the matters upon which Defendant relies in support of said denials, and otherwise fails to conform to the requirements of MCR 2.111. WHEREFORE, and as set forth more fully in the attached brief, Plaintiff respectfully requests that this Honorable Court strike Defendant's Answer and grant Judgment in its favor for the amount prayed for in the Complaint, plus court costs and statutory attorney fees pursuant to MCL 600.2441. ==================================== BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE ANSWER AND FOR SUMMARY DISPOSITION NOW COMES, the Plaintiff, MIDLAND FUNDING LLC, and for its Brief in Support of its Motion to Strike Answer and for Summary Disposition states unto this Honorable Court as follows: FACTS &LAW The lawsuit is based upon a stated account. Defendant's only responsive pleading has been the Answer filed with this Court. A careful review of Defendant's responsive pleading reflects that it fails to state a valid affirmative defense and fails to provide an affidavit in opposition to Plaintiffs sworn affidavit verifying the balance due and owing on the account. Attached to Plaintiffs Complaint is a sworn verification of the Account Stated, together with a copy of the account statement setting forth the amount due. MCL 600.2145 states clearly that "such affidavit shall be deemed prima facie evidence of such indebtedness, unless the Defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the Plaintiff or its attorney, denying the same." Neither Plaintiff nor Plaintiffs attorney has received such an affidavit from Defendant. Therefore, under MCL 600.2145, Plaintiff's sworn verification of the Account Stated is prima facie evidence of Defendant's indebtedness to Plaintiff. Plaintiffs counsel is competent to testify to the accuracy of the account stated, as counsel has reviewed the business records of Plaintiff. See, e.g. Forbes Lithograph .A1fg Co v Winters, 107 Mich 116 ( 1895); Hirsh v Fisher, 13 8 Mich 95 ( 1904). As pointed out by Steven A. Harms, a recognized expert in Michigan debtor-creditor law: The statute governing proof of an open account does not indicate who must make the affidavit or sign the verified complaint. MCL 600.2145. It only requires that the person making the affidavit (or signing the verified complaint) be authorized to do so on behalf of the Plaintiff; it does not specify that it must be someone with personal knowledge. In practice, collection attorneys frequently sign the verified complaints themselves . . . If the creditor is a corporation, there often is no one in the corporate structure with personal knowledge of all the facts. Anyone verifying the complaint would do so from business records, just as the attorney would. Harms, Handling the Collection Case in Michigan: A Creditors Guide (4th ed, 2006 Cum Supp),§ 4.16, p 4-9. The Michigan Court Rules state that an answer should be concise, direct and written in paragraph form to conform to the allegations in the Complaint, MCR 2.111 (A)(l). An answer must respond to each allegation; a general denial without factual support is contrary to MCR 2.11 l(D), which states that "[e]ach denial must state the substance of the matters on which the pleader will rely to support the denial." Defenses must be specifically pied under MCR 2.111 (F): "An answer must be sufficiently specific so that a plaintiff will be able to adequately prepare his case, just as the complaint must be sufficiently specific so that the defendant may adequately prepare his defense. " Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 318 (1993). Under MCR 2. l 15(B), an Answer or other pleading that fails to conform to the Court rules may be stricken by the Court sua sponte or upon motion of the Plaintiff. A motion to strike should be allowed at any reasonable time. Belle Isle Grill Corp v City of Detroit, 256 Mich App 463 ~ 471 (2003). A failure to answer or offer a defense entitles a Plaintiff to summary disposition under MCR 2.l 16(C)(9). A Motion for Summary Disposition under MCR 2.116(C)(9), alleging a failure to state a valid defense, tests the legal sufficiency of the pleaded defense, and is tested by reference to the pleadings alone. Nasser v Auto Club Ins a$$ 'n, 435 Mich 33, 47; 457 NW2d 637 (199.0); Durant v Stahlin, 375 Mich 628, 135NW2d 392 (1965); Minor Dietiker v Mary Jane Stores of Michigan, Inc, 2 Mich App 585, 141NW2d342 (1966). Documentary evidence is neither required nor permitted in evaluating such a motion. MCR 2.116(0)(2) and (5).A motion brought under MCR 2.l 16(C)(IO) tests the facts supporting a claim. and must be supported by affidavits, depositions, admissions, or other documentary evidence showing the facts necessary to entitle the moving party to a judgment in his or her favor. MCR 2.116(0)(3); Downey v Charlevoix Co Bd of Commissioners, 227 Mich App 621 (1998). The Court must also consider the pleadings themselves. MCR 2.116(0)(5). Affidavits and other documentary evidence are to be viewed in the light most favorable to the nonmoving party. Chandler v Dowell Schlumberger, 456 Mich 395, 572 NW2d 210 (1988). Where a motion is brought under (C)(l 0), the nonmoving party has an obligation to set forth specific facts showing that there is a genuine issue for trial. Dept of Social Services v Aetna, 177 Mich App 440, 443 NW2d 420 (1989). If the moving party fulfills its initial burden: the party opposing the motion must demonstrate with evidentiary materials that a genuine and material issue of disputed fact exists, and may not rest upon mere allegations or denials in the pleadings. MCR 2.116(0)(4); Quinto v Cross & Peters Co, 451 Mich 358, 362: 547 NW2d 314 (1996). Defendant's failure to provide an affidavit in opposition to the Complaint constitutes an admission that the account is accurate under MCL 600.2145. Hawley v Professional Credit Bureau, Inc, 345 Mich 500, 76 NW2d 835 (1956). Additionally, the Affidavit of Account and other documentary evidence provided by Plaintiff demonstrates that there is no genuine dispute regarding the existence of the account or Defendant's obligation to pay. (See Affidavit of Account and other supporting documentation, attached hereto and incorporated by reference.). CONCLUSION Defendant has failed to file a proper Answer or offer a valid defense to Plaintiff's claims. There is no genuine dispute as to the material facts of the case. Based upon Michigan case law and MCL 600.1245, Plaintiff is entitled to a summary disposition and Judgment as a matter of law. WHEREFORE, Plaintiff respectfully requests that this Honorable Court strike the Defendant's Answer and grant Judgment in its favor for the amount prayed for in the Complaint, plus court costs and statutory attorney fees pursuant to MCL 600.2441.
  6. I did add this paragraph in my "Affirmative Defenses" response: Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. Doing a little bit of research it looks like I can file an opposition to the summary disposition, as well as an answer. I would assume the "either party may choose to submit its dispute to the appropriate court for resolution" would mean that Midland would have to start their lawsuit all over again, not continue from where it left off.....?? As where we left off was an Aug 30th court date to check on the status of arbitration. That hasn't even been completed yet and arb trumps the court jurisdiction.
  7. Well it has happened. They have filed a Motion to Strike Answer and for Summary Disposition!!! Looks like it was filed with the court on the Aug 5th. The trial date for this is Aug 23rd, a day after I get back from vacation. I leave on Friday the 12th so have until that morning to file a response with the court. They are stating a bunch of b.s. such as I didn't file an answer or file a notarized counter affidavit to theirs (I DID BOTH!!!!!). The pre-trial was originally scheduled for Aug 30th in regards to the arbitration, so they are trying to push this through a week beforehand. I will be scanning and uploading what I received sometime today, but in the meantime, what can I do to either delay/counter/answer this motion? My original game plan before this happened was to file another motion to arbitrate but this time through JAMS. I am assuming that my consumers rights trumps anything regarding this lawsuit since my answer point #1 states the following: " In response to paragraph 1, Defendant admits allegations contained therein, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides’ litigation rights in court. " Any help would be greatly appreciated, even if its as simple as filing a motion to delay since I will be out of town the next 2 weeks and unable to prepare as I want.
  8. Well I finally got my letter from AAA that they refuse to arbitrate with Midland. I am not quite sure what my next steps are as the letter states that either party may choose to submit its dispute to the appropriate court for resolution. Here is the letter in its entirety: ============================================== June 24, 2016 Fyresine Address email Midland Lawyer Asset Acceptance, LLC Address Case Number: xxxxxxx Fyresine -Vs- Midland Funding, LLC Dear Parties: Claimant has filed with us a demand for arbitration. We note that the arbitration clause provides for arbitration by the American Arbitration Association (“AAA”). We must, at this time, decline to administer this claim and any other claims between Midland Funding, LLC and its consumers because the business failed to comply with the AAA's policies regarding consumer claims. These policies can be found on our web site, www.adr.org, in the Consumer Due Process Protocol (“Protocol”) and the Consumer Arbitration Rules. On a previously-filed consumer matter, this business did not timely submit its share of the filing fees and/or failed to waive a provision in its consumer contract that the AAA identified as a material and substantial deviation from the Protocol. The AAA sent correspondence informing the business that it may decline to administer consumer arbitrations involving this business and requested that the business remove the AAA from its consumer arbitration agreements so that there would be no confusion to the public. In addition, Midland Funding, LLC has not complied with our request to register its consumer clause on the AAA's Consumer Clause Registry (www.adr.org/consumerclauseregistry). Please note that submission of the expedited review fee on any particular matter does not satisfy the separate obligation to register the consumer clause. Accordingly, we have administratively closed our file and will refund any payment received by the filing party. According to R-1(d) of the Consumer Arbitration Rules, should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution. Pursuant to the AAA's current policy, in the normal course of our administration, the AAA may maintain certain electronic case documents in our electronic records system. Such electronic documents may not constitute a complete case file. Other than certain types of electronic case documents that the AAA maintains indefinitely, electronic case documents will be destroyed 18 months after the date of this letter. Please email ConsumerFiling@adr.org if you have any questions. Sincerely, Consumer Filing Team ConsumerFiling@adr.org Fax: (877) 304-8457 ============================================= So now I wonder if I should file a MTD based that I cannot continue arbitration like I elected or if I should file a motion to pursue arbitration through JAMS? Aug 31st is the next 'pre-trial' date for court.
  9. Here is a link to my thread: There are examples of my MTC as well as my response. Feel free to use as needed.
  10. So had some repairs come up for my car ($$), just finally able to file arb this week. Need advice on what locale to select. Does anyone know the best state to use for consumers fighting a JDB? Would choosing a state with only a 3 yrs statute of limitations do me any good?
  11. The paperwork you received looks exactly like what I was sent by Midland in Michigan. I have since filed an answer with a Motion to Compel Arbitration since I have the original cardholder agreement from Citibank. I plan on going that route as AAA refuses to arbitrate with Midland.
  12. It looks like I can file and manage a case online with AAA so I will be doing that by the end of the business week. Hopefully the results are a little faster going that route. Thank you everyone for your advice so far, this site is so valuable to consumers fighting these JDB's!!
  13. When he really started scrambling is when I stated I didn't want to settle on a debt that Midland didn't prove they own. He showed me the bill of sale and I stated that is wasn't valid in Michigan as there was no pertinent account information and was a generic word document that a 12yr old could type up. I also mentioned how there are class action lawsuits against Midland and Encore with falsifying affidavits and documents....he changed the subject and mentioned well lets see what the judge decides..... Look at these fees!!! I doubt they will pursue anything with the amount of money they will have to spend: https://www.adr.org/aaa/ShowPDF?doc=ADRSTAGE2026862
  14. So today was the MTC Arb court date, I was granted the motion with 30 days to file with AAA and then also a pre-trial date was scheduled for June 7th. Midland's attorney wanted to talk outside of the court room and tried to get me to settle or setup a payment plan. He was trying to talk me out of going to arb since "Midland has the funds to go through with it and its just going to cost me money". He was also trying to tell me that I will have to pay all of the fees and Midland won't have to pay anything for arb. He also looked at the credit card agreement and then continued to try to negotiate a settlement with me after that. I told him I would prefer arbitration at this point and I wasn't going to settle on a debt that Midland has failed to prove they own. So right now, I have 30 days to file with AAA and do some more research as to what that all entails. If I don't it will be fought in court with my answers I submitted above. I have read that AAA will not arb with Midland. That is what I was betting on for this motion. I'm assuming it is still in my best interest to go through arb and not fight in court. The lawyer seems to think its silly for me to go through arb since it will cost me money.....would much rather settle...lol of course they would.