Intensivefire

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Posts posted by Intensivefire


  1. 1 hour ago, fisthardcheese said:

    If you haven't already, just reply to their email and state that the agreement looks good but that the Judgement of Dismissal says "without" prejudice which should be "with" prejudice according to the settlement agreement.

    It is likely a clerical error. They should correct it and resent it.  Once they do, I would be happy to sign this and return it to them.  This is a perfect settlement.  It absolves you of ALL liability regarding this account.  Which means this account and debt will be gone forever.  Congrats!

    Thanks for the reply, i'll get right on that.


  2. Settlement Agreement and Release

    This Settlement Agreement and Release [the "Agreement'] is made this _ day of ___ 2020, by and between Defendant and Midland Funding LLC.

    WHEARAS. Defendant incurred certain debt related to a Synchrony Bank/Amazon.com account identified by account number ~~~ [the "debt"] and Midland Funding LLC's account number ~~~ [the "Plaintiff Account"],

    WHEARAS Midland Credit Management, Inc. [MCM] services the Plaintiff Account on behalf of Plaintiff.

    WHEARAS, Plaintiff has filed a complaint entitled ~~~~~~~ and 

    WHEARAS, the Parties hetero desire to compromise, settle and release any and all claims arising out of relating to the Plaintiff Account, any sale, assignment, or transfer of the Plaintiff Account, the Action,

    NOW THEREFORE in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows:

     

    1. DIsmissal of Action. The Parties shall dismiss the Action with prejudice upon the execution of this agreement. Each party shall bear its own costs and fees

    2. Release By Defendant. In consideration of the promises contained herein and the relinquishment of his legal rights regarding any claims arising out of or related to the Action, the Debt, and the Plaintiff Account, Defendant, himself, his heirs, successors, legal represntatives and assigns, do hereby release, acquit and forever discharge Plaintiff and all of its affiliates, parents and/or subsidiary corporations including, without limitation, its representatives managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, insurers, and representatives [including attorneys], together with any and all other persons, Firms and/or corporations who are or might be liable [collectively, the "Plaintiff Released Parties"], from any and all claims, liabilities, demands, suits, and causes of action of every nature and kind, wether vested or contingent, accrued or unaccrued, known or unknown, in law or in equity, matured or unmatured, wether or not such claims were or could have been brought or raised in the Action, or as a result of any sale, assigment, or transfer of or collection activities related to the Debt and/or the Plaintiff Account, including without limiting the generality of the foregoing, those claims expressely raised in the Action, those arising out of or relating to the facts, circumstances, or ocurrences surrounding the above mentioned Action, and those arising out of, relating to or resulting from the facts, circumstances, or ocurrences concerning the Debt and Plaintiff Account.

    3. Release by Plaintiff. In consideration of the promises contained herein and the relinquishment of its legal rights regarding any claims arising out of or related to the Action, the Plaintiff Account or the Debt, Plaintiff, itself, its representatives managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, insurers, and representatives [including attorneys], together with any and all other persons who are or might be liable [collectively the "Defendant Release Parties"], from any and all claims, liabilities, demands, suits and causes of action of every nature and kind, wether vested or contingent, accrued or unaccrued, known or unkown, in law or in equity, matured or unmatured, whether or not such claims were or could have been brought or raised in the Action. In adittion, by operation of this Agreement, Plaintiff hereby represents  that it will not effectuate conveyance of or activity relating to the Plaintiff Account. It is specifically understood that this Agreement shall be applicable solely to the Plaintiff Account referenced above, and will not apply to any other accounts currently owned or hereafter acquired by Plaintiff.

    4. Release of unknown claims. This Agreement covers and includes all claims that Defendant has against Released Parties up to and including the date of this Agreement, whether actually known or not, despite the fact that any applicable state and/or federal law may provide otherwise.

    5. Denial of Liability. It is expressly understood and agreed to by and among the undersigned hereto that by entering into this Agreement, none of the undersigned hereto admit the truth of the allegations made by any other party, and this is a compromise of a disputed claim, which should not be construed as an admission of liability on the part of any party.

    6. Tax Considerations. This Agreement is a result of a "contested liability" that was disputed in good faith. The Released Parties  make no representations regarding tax consequences, if any, pursuant to this Agreement.

    7. Assigns and Successors In Interest. This Agreement shall be binding upon and inure to the benefit of their heirs, successors, and assigns of the undersigned hereto.

    8.Agreement Fully Read and Understood. This Agrement has been carefully read by the undersigned and the contents are known and understood by the undersigned. The recitals stated above are incorporated herein by reference. The undersigned have each been afforded the opportunity to receive independent legal advice from the attorneys of their choice with respect to the preparation, review, and advisability of executing this Agreement or have voluntarily elected not to do so. Prior to the execution of this Agreement by each party, the undersigned has had the opportunity for an attorney to review the Agreement, and the undersigned acknowledge that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence.

    9. Applicable Law. The existence, validity, construction and operation of this Agreement, and all of its covenants, agreements, representations, warranties, terms, and conditions, shall be determined in accordance with the laws of the State of Oregon.

    10. Entire Agreement. This Agreement sets forth the entire agreement between the undersigned, and fully supersedes any and all prior and/or contemporaneous agreements or understandings between the undersigned, which pertain to the subject matter hereof. The terms of this Agreement may not be contradicted by the evidence of any prior or contemporaneous agreement, and no extrinsic evidence whatsoever may be introduced to vary its terms in any judicial proceeding involving this Agreement.

    11. Modification. This Agreement may be modified, but only if the modification is in writing and signed by the undersigned to this Agreement.

    12. Severability. Should any provisions of this Agreement be declared or determined by any couret to be illegal or invalid, the validity of the remaining parts , terms, or provisions shall not be affected thereby, and said illegal or invalid part, term, or provision shall be deemed not to be part of this Agreement.

    13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Faxed signatures may be accepted as originals.

    14. Confidentiality. The Undersigned hereto agree that they will not, at any time, without the express written consent of each of the other party, communicate, disclose or acknowledge the terms of this settlement, or this Agreement, to any person or entity except as required by court order, except as may be necessary to update the trade lines of the Plaintiff Account with Credit Bureaus. Defendant may discuss the details of this Agreement by ordinary means of private communication, including, but not limited to, voice, telephone, and email, with  his legal counselors, tax professionals, and financial advisors acting in their professional capacity. The undersigned may disclose that this matter has been settled to the undersigned's satisfaction.

    15. Mutual Drafting. This Agreement is the product of negotiations "at arms length" between the undersigned, both of whom are either represented by counsel or hereby acknowledge voluntary waiver of the right to such counsel. As such, the terms of this Agreement is mutually agreed upon, and no part of this Agreement will be construed against the drafter.

     


  3. Who is the named plaintiff in the suit?

    Midland Funding LLC

     

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

    Gordon, Aylworth & Tami, P.C.

     

    3. How much are you being sued for?

    $1,1XX.XX

     

    4. Who is the original creditor? (if not the Plaintiff)

    Synchrony Bank/Amazon

     

    5. How do you know you are being sued? (You were served, right?)

    Yes

     

    6. How were you served? (Mail, In person, Notice on door)

    In person

     

    7. Was the service legal as required by your state?

    I believe so

     

    8. What was your correspondence (if any) with the people suing you before you think you were being sued?

    Nothing that i remember

     

    9. What state and county do you live in?

    Polk County, Oregon

     

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

    Sometime in 2015

     

    11. When did you open the account (looking to establish what card agreement may be applicable)?

    Sometime in 2015

     

    12. What is the SOL on the debt? 

    Oregon says 6 years but these cards were issued in Puerto Rico which i believe is 3 years.

     

    13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B)looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

    Open, MTC Filed, hearing for motion and hearing for status check scheduled.

     

    14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

    No

     

    15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

    No

     

    16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

     

    Breach of Contract

    1. Defendant, an individual residing in Polk County Oregon entered into a contract with Synchrony Bank/Amazon.com for a credit account. The credit account was issued to Defendant with the account number ********9315.

    2. Synchrony Bank/Amazon.com supplied the credit account to Defendant subject to an agreement to repay all amounts charged to the account plus all associated costs and fees.

    3. Defendant used the credit account and became indebted to Synchrony Bank/Amazon.com.

    4. Synchrony Bank/Amazon.com performed its obligations under the terms of contract.

    5. Defendant breached the contract by failing to make payments as agreed. No payments were made on the account.

    6.. As a result of Defendants failure to pay, Defendants credit account was charged off for delinquency on Feb 3, 2016.

    7. As of the date of the charge off, the balance due on Defendants account was $1,1xx.xx. Additional information regarding the account can be found on the Consumer Debt Disclosure form, which is attached hereto and by this reference incorporated herein.

    8.Plaintiff, for good and valuable consideration, purchased Defendants Synchrony  Bank/Amazon.com credit account and contract and all of the associated rights thereunder on or about February 27, 2017.

    9. As a result of Defendants breach of contract, Defendant is indebted to Plaintiff in the sum of $1,1xx.xx. Plaintiff also seeks recovery of fees, costs and disbursements that are permitted by law. These fees, costs and disbursements may include, but are not limited to, those permitted by OCRP 68, such as costs of filing and service, as well as any other statutorily permitted cost, fee or disbursement which may be awarded to a prevailing party in this action. At this stage of the litigation, it is impossible to itemize these costs further. Plaintiff also requests post-judgement interest on the full balance of the judgement at the statutory rate of 9%.

     

    17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

    Only the complaint and a  Consumer debt collection disclosure which has marked that i made a payment but under it states that no payments were made.

     

     I went through the mandatory arbitration of Oregon, which was really one sided. They sent in some credit card charge statements, a bill of sale from Synchrony Bank with no personal info, and a paper with my info printed from Synchrony Bank records. 

     Filed a Trial De Novo afterwards and now i have a hearing date for the motion, which im waiting to get in the mail, and a status check hearing date which i got today in the mail. 

    The first time they sued me for over $2k and they ended up dismissing without prejudice once i filed the MTC, not this time. Also as soon as i filed my answer i had filed an MTC but i believe the clerk made a mistake and filed it under a motion for discovery so i re filed the MTC together with the Trial de Novo last week and sent the attorneys and Midland a copy.


  4. 1 hour ago, fishlips said:

    Little update! I got everything filed with the courts but they sent me some paperwork. They need a certificate of readiness to continue with the MTC; after looking through the paperwork they sent me I have one drafted up with the proposed order as required. According to the rules, some proposed orders have to be sent to the opposing attorney 7 days before submitting to the court so they have time to make objections. Do I need to do that in this case? It says ex parte documents can be submitted without 7 day service to the other side. Just making sure I can efile this now and move forward. Thanks so much! 

    @Intensivefire did you need to do this too? 

    Honestly all i did was turn in the answer, MTC, credit card contract and an affidavit to the court and sent a copy to the attorney. A few days later they dismissed the case. But FYI yesterday i was served again by Midland from the same attorney, they dismiss cases without prejudice. 


  5. This is the one i used for my case, it talks about the arbitration on the last page. It states that if you ask they will pay the arbitration which is what they dont want.

    As for the MTC, i believe i used a template i found online. I will see if i can find the one i made tomorrow and send it to you.

    Synchrony Bank Amazon.com Store Card Account Agreement and Pricing Information.pdf


  6. From my understanding all you need to do is answer the complaint and in it stating that you will be seeking arbitration and then file the MTC. Once you do they should dismiss the case especially since your amount is much less than mine.

    Edit: Just realized you've been served by the same firm as me. They are just counting on you not answering to win. File your answer ASAP at the very least if your MTC isn't ready yet.


  7. 45 minutes ago, fishlips said:
     

    @Intensivefire

    What was the result of this? I'm in almost exactly the same boat: going to be served by GA & Tami soon (I believe) by midland for a Walmart and Amazon card in Portland for nearly the same amount. Was the SOL the reason for the dismissal? Curious how this worked out for you as I'll be filing an MTC when it's time!

    Thanks! 

    Once i filled my answer and MTC i got a letter in the mail saying they were going to file to dismiss the case at a certain date. The date came and the status of my case showed dismissed without prejudice. Just file your answer and MTC as soon as possible and you should be fine, they seem to only be interested in winning by default.

    • Like 2

  8. I just received the summon papers last night and its dated 17th. I have been looking around online  but have no idea how to actually proceed with this. I would appreciate any and all help. thanks.

     

     

    s the named plaintiff in the suit?

    Midland Funding LLC

     

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

    Gordon, Aylworth & Tami, P.C.

     

    3. How much are you being sued for?

    $2695.14

     

    4. Who is the original creditor? (if not the Plaintiff)

    Synchrony Bank/Walmart

    Synchrony Bank/Amazon

     

    5. How do you know you are being sued? (You were served, right?)

    Yes

     

    6. How were you served? (Mail, In person, Notice on door)

    In person

     

    7. Was the service legal as required by your state?

    I believe so

     

    8. What was your correspondence (if any) with the people suing you before you think you were being sued?

    Nothing that i remember

     

    9. What state and county do you live in?

    Polk County, Oregon

     

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

    Sometine in 2015

     

    11. When did you open the account (looking to establish what card agreement may be applicable)?

    Sometime in 2015

     

    12. What is the SOL on the debt? To find out:

    Oregon says 6 years but these cards were issued in Puerto Rico which i believe is 3 years

     

    13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B)looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

    Open

     

    14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

    No

     

    15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

    No

     

    16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

    First Cause of Action

    Breach of Contract

    1. Defendant entered into a contract with Synchrony Bank/Walmart for a credit account.

    2.Synchrony Bank/Walmart performed its obligations under the terms of the contract and supplied the defendant with a credit account under the account number ********5639.

    3. Defendant used the credit account and became indebted to Synchrony Bank/Walmart.

    4. Defendant breached contract by failing to make payments as agreed. The last payment on the account prior to charge off was made on Feb 27, 2015 in the amount of $468.00

    5. As a result of Defendants failure to pay, Defendants credit account was charged off for delinquency on Jan 25, 2016.

    6. As of the date of charge off, the balance due on the Defendants account was $1470.62.

    7. As of date of charge off, the interest rate on Defendants account was 22.90%

    8. Defendant has failed and refused in the obligation under the terms of contract  to make the required payments on the account.

    9. The account having been assigned to Plaintiff, as a result of Defendants breach, Defendant is indebted to Plaintiff in the sum of $1470.62

    Second Cause of Action

    Breach of Contract

    10. Defendant entered into a contract with Synchrony Bank/Amazon.com for a credit account.

    11.Synchrony Bank/Amazon.com performed its obligations under the terms of the contract and supplied the defendant with a credit account under the account number ********9315.

    12. Defendant used the credit account and became indebted to Synchrony Bank/Amazon.com.

    13. Defendant breached contract by failing to make payments as agreed. No payments were made on the account.

    14. As a result of Defendants failure to pay, Defendants credit account was charged off for delinquency on Feb 3, 2016.

    15. As of the date of charge off, the balance due on the Defendants account was $1188.55.

    16. As of date of charge off, the interest rate on Defendants account was 26.24%

    17. Defendant has failed and refused in the obligation under the terms of contract  to make the required payments on the account.

    18. The account having been assigned to Plaintiff, as a result of Defendants breach, Defendant is indebted to Plaintiff in the sum of $1188.52.

     

    17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

    Only the complaint