BackFromTheDebt

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Posts posted by BackFromTheDebt


  1. 18 minutes ago, ConfusedNewb said:

    Hi,

    I did read through it as best as I could and will be typing up an MTC from the templates I've found here and elsewhere. Hopefully I can get some feedback on it once I've written it up so I can send it in together with my General Denial. What I was really confused about is if I should send a copy of the documents directly to Portfolio recovery or their attorneys?

    When The other party is represented by an attorney, one always deals with the attorney; never directly with the other party. 


  2. 1 hour ago, Xtreme98 said:

    Hope everyone is doing well with all the crazy that is happening in the world.

    Just a follow up. Have not heard anything from them as of today. Its been 5 plus months and no response. I did get a letter from a different collection agency about the same dept with settlement options. I'm not sure what to make of it but i did not respond to them. Can anyone say if that's a cause for concern considering I'm already being sued for this debt?

    My rule is whenever I hear from a collection agency, I send a DV letter.  Always.  Especially since there is already a suit.  

    • Like 2

  3. 8 hours ago, Le4420 said:

    I too have a summery judgement, now Mitland had a wage garnishment to my work and sent me its first notice, what should I do ? Please help. I do not know much the law, and I cannot afford an attorney.

    You should have started your own thread, but the answer to your question is short and sour. 
     

    Once you have lost the case, and they have filed a wage garnishment, it is too late to do anything.  Your employer will take the money out of your wages until the judgment plus interest is paid off.
     

    The only exception is if you are judgment proof 


  4. ANY purchase or lease will hurt your chances of getting a mortgage, unless your income is high enough and the house cheap enough it doesn't matter.  

    It would probably be best to discuss this with the loan officer at a bank where you plan to get a mortgage.   They may not be experts in credit ratings, but they generally know what the rules are as far as what payments you can have with your income and down payment and still get a house for $xxx,xxx dollars.  

    When I bought my house, I had a clunker I had paid $1500 cash for.  It was a piece of crap, and didn't really fit everyone in my family.  But, having a clunker and no car payments made it possible to buy my house.  Then, after buying the house, we got a minivan that DID fit everyone in the family.  

    However, buying the house meant worse financing for the car.  

    Such is life.  You may have to decide which is more important to you -- the house or the car.  For me it was the house.  


  5. 14 minutes ago, Jinxo said:

    Strange update.... I called the Debt Collector company to negotiate. They DID acknowledge that the debt was now in disputed status because they received my letter a couple weeks ago. BUT they said that they are "no longer representing the debt and it was returned back to the hospital". They stated that I must now instead just contact the hospital which is so confusing. They also said that they did not report this debt to any of the credit agencies. So now I am very confused about WHY the debt collector would no longer represent the debt? I tried to get it out of them the reason for this, but the only "possible" explanation was that it was returned because of being in disputed status BUT that was not a solid answer and there was clearly more to it that they would not say...
    The debt collection company made it clear that once the debt was disputed by me, that they cannot legally proceed with reporting the debt to any CRA.

    They can't report it because they are no longer representing the animal hospital.  They could report a disputed debt under federal law, as long as it is marked disputed.  Not sure about Michigan law.  

    What this means is the account has been sent back to the hospital.  I don't know why.  They won't tell you why, and you will probably never know.  It might be that this particular collection agency won't work with disputed debts.  Some do, others do not.  Generally, a collection agency gets a commission from whatever money they can collect.  If you are not going to pay anything, there is nothing to collect, so no commission.  Since the account is now a waste of time for them, they sent it back to the hospital.  

    Take whatever disputes you have with the account to the hospital.  You won't have any dealing with the collection agency again, unless you decide to sue them.  


  6. Basically, forget #1 unless they left out something that is required.

    #1 is similar to the FDCPA.  For example, if the initial communication is a phone call, they MUST send a letter within 5 days.  That is both federal and Michigan law.  The Michigan law adds they must put in the date of the phone call.  

    If the first communication is a letter, just make sure they have everything in #1 in their letter.  

    As far as the SECOND communication, if they did NOT include anything in #2, they are in violation.  I have not seen their letter, but my impression is they did NOT include all the information required in #2.  

    In which case, they are in violation of Michigan law.

    The fact they are in violation of Michigan law may or may not be usable in negotiating a debt settlement with them.  Or, it could be a standalone state law suit whereby you sue them.  


  7. 2 hours ago, BV80 said:

    In terms of bankruptcy, medical debts might be classified as “business debts”, but the 6th Circuit’s ruling in Haddad v. Alexander, Zelmanski, Danner & Fioritto made no reference to that.  Perhaps it’s because of a requirement  in bk of “voluntarily incurred”?  The FDCPA makes no such distinction between voluntarily or involuntarily incurred.  

    Interesting point.

    However, for any kind of medical debt, one cannot assume a judge will call a medical debt a consumer debt for purposes of the FDCPA.  First, there is the precedence of many medical debts being considered business debts for BK purposes.  Second, as we have seen time and time again, judges often do whatever the he!! they want to do, often ignoring law or even Supreme Court decisions.  

    I would agree that a vet debt SHOULD be considered a consumer debt.  I don't know of any case law that explicitly says it is consumer debt, so tread carefully.


  8. 5 hours ago, Clydesmom said:

    I have NO idea where you go that nonsense.  Care for people IS a consumer transaction.  Payment is made for care rendered.  The difference is that when it comes to care for medical care for people the provider or their CA cannot report it to the bureaus until 6 months after the date the care happened to give insurance claims sufficient time to be fully completed.  After that 6 months elapses all bets are off and they can report.

     

    From the NOLO web site:

    https://www.nolo.com/legal-encyclopedia/consumer-non-consumer-debts-bankruptcy-means-test.html

    Quote

    Medical bills. Surprisingly, necessary medical expenses are often classified as non-consumer debts and therefore qualify as business debts. As with tax debts, this is because usually, you don't voluntarily "incur" medical debt. If the medical expense is for elective cosmetic surgery, however, it could be classified as consumer debt.

    THAT is where I got "that nonsense".  I agree it is nonsense, but judges call it business debt rather than consumer debt. 

    If you got that one wrong, then how certain can anyone be that your assertion that vet bills are consumer debt is correct?  I would think they are, but it would be extremely careless to claim vet bills are consumer debt without any case law to back it up.  


  9. 45 minutes ago, Jinxo said:

    I'm not sure what CMRRR is but I sent it from the US Postal Service Certified Mail Receipt that shows their name/address on it and the date as 6/1/20. The letter I sent requested verification of the debt, but does me sending that letter require them to WAIT before posting any debt to my credit?

    That is CMRRR.  Good for you.

    I really don't know if vet debts are considered consumer debts or not.  For some strange reason, necessary human medical debts are NOT considered consumer debts.  They are business debts.  I don't understand the logic.  However, cosmetic surgery is considered consumer debt.  It is possible that vet debts are also not considered consumer debts.  But your local court might think they are.  Courts don't always agree.  For example, some courts consider student loans to be consumer debts, while others do not.  

    If the vet debts are consumer debts, then they have violated the FDCPA by continuing to collect after your DV letter.  If not, then they haven't violated consumer laws.  The law seems to be a bit grey in this point, unless there is case law I can't find easily with Google.    

    What does that mean?

    You are liable for vet bills.  If you believe your dog's death was a result of malpractice, then you have a counterclaim of malpractice, which could wipe out the debt and maybe they would have to pay you.  However, the burden is on you to show malpractice.  

    The fact that they didn't send you the bill before going to collections is a horrible business practice, but they haven't broken any laws by doing so.  

    If the local court thinks this is a consumer debt, then you have a claim against the collection agency.  

    Generally, if you get a bill, you have a certain amount of time to contest the bill.  They cannot sue you for account stated if they never sent the bill, though.  They CAN sue you for not paying vet services.  

    What would I do in your shoes?

    Well, I wouldn't pay a bill when I have never even seen the bill.  If they won't send you a copy of the bill, you have no way of knowing if the charges are valid.  I wouldn't pay them.  You asked for the bill, and never got it.  You could call them or send them a letter saying you won't pay a bill you have never seen.  

     

    If I were in your shoes I might call up the vet and ask them why you are getting dunned by a collection agency for a bill you never received.  They might say they won't deal with you because it is in collections, but they might actually work with you.  It is possible they really did deliver $5000 in services, doing the best they could to save the life of your pet, but it was hopeless.  They certainly have at least a moral obligation to work with you on this.  

    At some point this might go to an attorney.  It is doubtful the collection agency would sue you, but the vet might.  Which is why I suggested talking directly to the vet's office.  

     

    But a bill is crucial.  I have refused to pay when I haven't gotten an itemized statement.  To the extent that I walked away from $60-70k in debts from a major bank that never was able to send me any proof I actually owed money.  


  10. 1 hour ago, Jinxo said:
     

    10 months ago my dog was taken into an animal hospital due to low red blood cell count but otherwise completely healthy 11 year old dog. 48 Hours later he was dead. I paid a $1k deposit when first checking into the place and that is all I have paid thus far. The animal hospital never contacted me to collect and I figured it was because they acknowledge some responsibility for the dogs death, which I believe they are atleast somewhat responsible. Regardless, I got a letter from a collection agency demanding the remaining $4k payment. I may or may night hire legal help but I am first wondering some general questions:
    1. At what point can a debt collection agency put a claim on my credit report? I have excellent credit and do not want to ruin it, but I cannot imagine that any collection agency can just ruin someone's credit but claiming they are owed money without having to prove it through some sort of legal process?
    2. The letter said 30 days to pay up. I responded with a certified letter requesting proof of charges and their right to collect on behalf of the animal hospital. I have yet to hear back from them and received a second warning letter but not sure what to do?

    Any help or insight is greatly appreciated

    Yeah, they could put it on your credit report.  If it is false, you can dispute with the CRAs, and if you really believe this is false, you could file a suit against the collection agency for FCRA violations if they report falsely.  This is NOT easy to do.  But then, maybe they won't put it on your credit report.  

     

    I don't know exactly what was in the letter you sent them.  I hope you sent it CMRRR, and I hope you kept a copy.  If what you wrote amounts to a DV letter, and they didn't validate but continued to collect anyway, they could be liable for a violation of the FDCPA.  You need to prove it, though.  


  11. 58 minutes ago, Robby8900 said:

    If it were me personally, i would file a MTD lack of jurisdiction on the subject matter based on this portion of the agreement:

    By accepting this Agreement, unless you opt out by following the instructions below, you agree that either you or we, at our sole discretion, can choose to have any dispute arising out of or relating to this Agreement or our relationship resolved by binding arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that dispute in court or to have a jury trial on that dispute

    I disagree with this one.  Unless the OP started in arbitration before the case was filed.  It is doubtful that a MTD would be granted, while an MTC would probably be granted, unless the judge ignores the law.

    One possibility is a combination of:

    1. An answer, with lack of venue as an affirmative defense

    2. A MTD for improper venue, and

    3. An MTC.  The idea is if the MTD is not granted (and it almost certainly won't be), the MTC is filed as an alternative to the MTD.

     

    I wouldn't file a second MTD, though, at least not as a standalone filing.  

    • Like 1

  12. Normally, it is NOT too late if you have not already filed an answer.

    The only restriction I can find is they cannot use arbitration in small claims, but you can.  

    File an MTC along with your answer, and include an affirmative defense of improper venue.

    Realize that some judges just do whatever they feel like doing, no matter what the law actually says.

    • Like 1

  13. 3 hours ago, Racinghart03 said:

    UPDATE: @fisthardcheese @BackFromTheDebt @BV80. So as I kinda expected but was not hoping for....I believe the attorney is suing me. It is kinda funny how it came to light as I got a letter from an debt attorney with a docket reference number that was "here to help".  The useful information was the docket number so I searched it in the NJ Supreme Court and did find that it was filed a few days ago. They also said a notice was mailed 6/13. So I am thinking I should be getting the love letter in the mail any day now. It was the JDB attorney who filed and the case will DEFAULT on 7/24 so I understand that I need to have my end handled before that date. A few questions.... Do I file the MTC with the court before I go to court?  I will begin working on FHCs template so it is ready. Do I have to go to court to file the MTC? And when do I file with Jams?  Now or later? When I do file with JAMS do I do if for FDCPA violations, violation of my arbitration request, or any other reason? Thank you everyone!

    Well, this is kinda what you expected, and have been preparing for.  

    In general, the best approach is a general denial with an affirmative defense of improper venue due to arbitration, along with the MTC, filed as your answer.  File it a few days before the due date, just in case something weird happens.  

    Filing a claim of an FDCPA violation due to ignoring your arbitration demand (NOT a request!  A demand!)  is possible.  People here will tell you, correctly, that there is no case law that filing the court case really is an FDCPA violation.  But, in SOME cases, it can help to scare them away from arbitration.  Other times it doesn't help.  

    File in JAMS after your MTC is approved.  

    This being a JDB, the chances of them agreeing to a mutual walkaway after you file in JAMS are better.  There is no 100% sure thing, but your chances are pretty good.  


  14. 20 hours ago, Zinnia said:

    It's fairly straight forward, everything was in order as it should have been prior to the lockdown. 

    I filed a motion, hearing date was set, LVNV sent me a copy of their Praecipe to Discontinue Action two weeks later and I assumed that was the end of it.

    The courts sent me a rescheduled hearing date two months later, even though it was supposed to be 'discontinued'. And somehow now the court clerk is saying they don't have any of this information. No motion filed by me, no other documents besides the original complaint.

    I have the letters, the copies of my motion stamped by the court, all the registered mail stubs and their discontinuance letter.

    I didn't have a motion hearing, lockdown canceled it. But LVNV discontinued their appeal before the set date anyway, so it wouldn't have happened regardless..

    The clerk said "it could be in a mail pile somewhere" but LVNV mailed it three months ago. I don't know what to do now? 

    The ONLY time I sent something in the mail but forgot to send it CMRRR was to an attorney who claimed never to haze gotten it. That is why I asked. 
     

    In your case, I would resend everything to the court.  Better still, deliver it by hand if at all possible.  Include a notarized statement that you mailed everything earlier, and when you mailed it.  


  15. It is unfortunately very common in small claims courts to get judges or magistrates who really don’t know or care about the law and just do what they feel like doing.  Yours is not the first or even the tenth time we have seen this happen. 
     

    Appeal.  
     

    I don’t know the proper appeal process in your court.  Some jurisdictions have an automatic appeal. Others require a cause. 
     

    In either case, you have a cause.  The judge violated a US Supreme Court ruling.  You need to look up the Concepcion v. ATT case where the Supreme Court ruled that arbitration clauses must be followed. 
     

    1. Find out the appeals process 

    2. Appeal.  
     

    Many of the people who post here have had exactly the same situation, and have gotten the MTC upon appeal. 
     

    You also have a cause of action against Midland and the attorney for lying about the contract in court.  Clear violation of the FDCPA. 

    • Like 1
    • Thanks 1

  16. 15 minutes ago, fisthardcheese said:

    You love to see it. 😆

    If you have any claims you can list when filing with JAMS, I would do that and not mention their debt claims against me at all.  Think of it like it's a new case and YOU are now suing THEM but in arbitration.  It is up to them to counter claim for the debt.  Also, send a copy of the judge's order granting your MTC as well. 

    I have used this strategy in arbitration every time. In the old days violations were more common, which is why I was able to use this strategy every time. 
     

    The worst settlement I got in arbitration was a mutual walk away.  

    • Like 1

  17. 31 minutes ago, counselor1250 said:

    2015.

    Yes, it is the out of pocket after insurance. I've just had 2 tons of medicals bills as I had 3 brain surgeries.

    It's just a tough time now as covid has hit our small business, but I'm not averse to paying it in payments or something.  What is the process if I do a denial?

    I am not saying this to criticize you, but to give others a lesson.  While there are exceptions, with medical bills, the earlier one can work out a payment plan or some kind of settlement, the better.  Some medical providers are really great about working out payment plans, others range from meh to horrible.  Such is life.

     

    To the OP's situation:

    You will almost certainly lose this case, unless there is some serious fault with the case.

    In that situation, the question is, are you "judgment proof"?  In other words, if they have a judgment against you, are you in a position where they will never be able to collect?  If so, that is a different matter.

    Assuming you are NOT judgment proof, you have three strategies.  The third one would probably be the cheapest for you.

     

    1.  Do nothing.   They will get a default judgment against you, and then go after you to collect the money.  This is usually the worst option.  Once they have the judgment, you can either work out a settlement, or else make them collect whatever way they can.  And when they collect, they also get to collect interest.  Some sort of settlement is probably better.  

    2. Fight the case, and almost certainly lose.  After they get the judgment, you can either work out a settlement, or go through the steps of having them collect whatever way they can.  Again, some sort of settlement is probably better.  This has the advantage of taking the longest time, so it can buy you some time.

    3. Call them up and work out a settlement before they get a judgment.  This is probably the cheapest option, in that you can probably get a better settlement now than you could after they have a judgment.  This can either be a lump sum with a discount, or else a payment plan.  Note that they will almost certainly make you sign a stipulated judgment, so that if you don't pay, they will have a judgment against you and can collect.  IF you can start paying soon, this is your best option.  

     


  18. 1 hour ago, BV80 said:

      Just follow your court’s rules for filing motions.

    This is an important point.

    The court rules will NOT have a section on how to file this or that motion, since there are many types of motions, but they should have something about how to file a motion.  There may be rules on how far in advance it needs to be to give the other side a chance to respond, so if the hearing is June 9, you should try to file ASAP.  

    You also need to find out how motions are heard in that court.  In my state, circuit court motions are generally scheduled for hearings, while small claims motions are usually heard whenever the scheduled date for the small claims hearing is.  

    Since you already have a court date, you will probably have any motions heard that day.  No guarantee, but this is probably how things are done in a small claims court.  You need to make sure, of course.  


  19. There is a link in the template you used to instructions for arbitration.

    Here is the gist of it:

    In order to protect themselves against class action suits, etc., many creditors use arbitration agreements.  That is a little too complicated for this post, but here is what it means for you:

    Either party has the right to have the case heard by a private arbitrator instead of the court. This has been affirmed by the US Supreme Court.  For example, the Judge Judy show has Judy as a private arbitrator, which is why a TV judge can make legal rulings.

    Consumer arbitration is expensive for the creditor.  

    In general, Midland HATE consumer arbitration. 

    What you need to do is to:

    1. Get a copy of your arbitration agreement from the Consumer Financial Protection Board web site.

    2. Check the arbitration terms.

    3. File a Motion To Compel arbitration (MTC for short).  There are tips on how to do that in the thread.

    4. The court will usually have some sort of hearing to grant your MTC.  You need to find out the rules for that court.  They vary state to state and sometimes different courts in the same state will have different rules.  

    5. When you get the MTC granted, you file arbitraiton.  JAMS is preferable, but if the account only has AAA, then you file in AAA.

    6. Make an offer to their attorney to dismiss the case with prejudice in both arbitraiton and court.


  20. We need a LOT more information if we are going to help you.  There is a template with questions to fill out.  Find that and use it please. 
     

    If you can’t find it, at least let us know:

    What kind of court

    The original creditor
    The approximate amount. Please round. 
    The law firm suing you. 
    When is your answer due. 

    When was the default.  
    What sort of evidence, if any, was provided with the complaint. 


  21. 22 minutes ago, TexasGirl8002 said:

    I emailed the clerk on Thursday afternoon and asked when I would receive a copy of the Motion in the mail. I informed her that it had been 10 days and I had not received anything from the Plaintiff or the Court. She said that she was out of the office but she would check on my case when she got back in the office on Tuesday. This morning, 05/26/2020, I received an email that said the Judge denied the motion of  Default Judgement and that the case was set for hearing on June 29th. I am freaking out a little bit. 

    The judge denying the motion for default judgment is a victory.  An expected victory, but a victory nonetheless.  

    Now prepare for the June 29 hearing.  And try not to panic.  Their biggest weapon is fear.  


  22. 15 minutes ago, Racinghart03 said:

    Sent the election for arb in. I prefer to keep the matter out of court if possible. Would filing first for any violations be a wise move at this point? Or wait and see what their next play is? While a mutual walkaway would be ideal, I would not be opposed to a small settlement in a few months. I have heard the most these JDB buyers pay pennies on the dollar for these debts. Even if I offer 10% of the debt they claim I owe, it would be worth it to me to make it go away. Thoughts?

    It depends on how badly you want to keep this out of court.  Nobody can answer that question except you.  If you really, really want to keep the matter out of court, you have to file in JAMS before they file in court.  

    At this point, they would probably NOT take a 10% deal.  I said probably, because I do know of some cases in the past where 10% deals were accepted.

    The only way to get them to take 10%, or possibly 0%, would be to go ahead and file in JAMS.  

    Most debt collection law firms have some way of communication for settlement offers.  You need to figure out how to communicate with them.  They will probably respond to your letter about arbitration.  They might say unless you file by such and such a time they will sue.  Or maybe not.  

    One possibility is to send them another letter after giving them a chance to reply to your arbitration election.  You can give them an offer, with a strict time limit, of 10%.  Note to them that if they don't accept the offer by the time limit, you will file in JAMS.  They will probably reject the offer.  In that case, file in JAMS right away.  As soon as you do that, your negotiating power increases dramatically.  

     

    One thing some people have done -- fill out the JAMS forms.  Send they a copy and say you haven't filed in JAMS yet, but these are the papers you will send in at such and such a date unless they take your 10% offer.  That shows them you are serious, and they are more likely to accept a 10% offer at that point.