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Can Midland request a phone mediation before I respond to RtoP/RforA/Interr?


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Continueing a thread my wife started a week or so ago. She was "godsentme" but something keeps happening to her connection so we're starting a new one. "Legaleagle" replied but she couldn't answer because a link was attached (a good resource for us-Thank-you.) So when we hit the reply button it says we have to detatch the link to send it and we just don't know how to-Old Folk!!

Midland has sent a letter to the court and my wife to request a phone mediation. She has already replied to the first set of documents with a Pro Se Notice of Appearance/Answer,Affirmative Defenses and Certificate of Service. She was about to compile her response to the next set of docs-RtoP/RforA/Interrs when she got this letter from the lawyer-Motion for Mediation-and requesting the court to have it by phone. We received it just 4 days after receiving the Answer to Affirmative Defenses documents. Can the court grant this without her consent or will they ask her if she wants the mediation? She still has 25 days to respond to the RP/RA/INT. She doesn't know what they will mediate as she is very uncertain of what this debt is.

Thanks "legaleagle" for responding and hope to hear back from you as well as any others with much needed advice. This site is awesome!

Edited by backinthe50's
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Magistrate Judge Goodman is very particular about the Local Rule requirement that the parties meet and confer before filing a motion.

Here he is succinctly explaining the reasoning behind the rule.

Strict compliance with Local Rule 7.1(a)(3) is very important. The non-moving party does not always oppose relief sought by the moving party. E.g., id. at 1301 (noting that the non-moving party in that case “did not, for all practical purposes, object to the relief being sought in three of the motions”). Compliance with this rule may save the parties the time and costs associated with filing and responding to a motion. Wrangen, 2008 WL 5427785, at *1. This rule is also a mechanism for alerting the Court to whether a motion is opposed, allowing (in the case of unopposed motions) the Court to expedite its ruling and to avoid spending its own time unnecessarily considering issues that are mooted by the agreement.

So do you think sending a draft motion to the other side before filing complies with the Local Rule?

Let's see:

In their original Motion for Costs, Defendants provided the following:

Defendants certify that a good faith effort to resolve this motion by agreement has taken place. A draft motion and schedule of costs have previously been sent to opposing counsel.

This certification and the purported effort to confer it describes does not comply with Local Rule 7.1(a)(3). Local Rule 7.1(a)(3) is not satisfied merely by sending a copy of a draft motion to an opposing counsel. See Royal Bahamian, 744 F. Supp. 2d at 1299 n.2 (“‘Simply sending a letter without further follow-up does not constitute the type of effort to engage in a pre-filing conference anticipated by Local Rule 7.1’”) (quoting Wrangen, 2008 WL 5427785, at *1). Providing a draft motion to opposing counsel could be part of a good faith effort to confer, but in order to satisfy the rule this way, for instance, counsel must attempt to discuss the motion, and then wait a reasonable amount of time (as dictated by the situation) for a response before filing. In addition, my standard discovery procedures (which are technically inapplicable here) require an actual conversation.

Defendants’ certification does not even allow me to conclude with any certainty that Plaintiff’s counsel received the draft motion. Sending a copy of a motion does not guarantee that Plaintiff’s counsel actually received, let alone reviewed, considered, and declined to agree to any of the requested relief before Defendant filed it.

Edited by racecar
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Thank-you for responding, but I think the response may be intended for another. If not then we just don't quite understand it.

Here is our case:

My wife is being sued by Midland Funding as succesor in interest to Chase Bank for $18,500.00.

Lawyer is Sprechman and Assoc. in Miami Fl.

I (husband-not on acct.) was served by a sheriff with a Civil Action Summons. My wife replied with a Pro Se Notice of Appearance/Answer/Affirmative Defenses/Certificate of Service-notorized-hand-delivered to the Court (Washington County, Fl.) and sent certified, pre-paid, guaranteed delivery to the lawyer.

They sent back 2 letters and a Reply to Affirmative Defenses. The letters were for: 1. Want to settle out of court. 2. Notice of Unavailabilty-sent to the court and my wife-stating several dates he would not be available for deposition, trial, hearing or mediation and that this letter would serve as a Motion for Continuance, if needed.

My wife was preparing her statements for the Reply to Affirmative Defenses when this other letter came-just 4 days later-a Motion for Mediation-sent to the court and my wife.

We do not want a mediation as we don't even know what the debt is.

We do not know if and how we should respond to this request, as it was a request from the lawyer to the Court.

Her facts are:

Attached to the original Civil Action Summons were 12 statements starting in 01/09 with COUNTRYWIDE as the owner of this Visa credit card acct. They are listed on the first 4 statements. Chase Bank is on the next 5 and Slate (for Chase) are on the last 3. The last payment seems to have been made on 05/09 with a balance of $15,300.00.

All 3 companies have the same return address of Wilmington, DE. All the same phone number and 2 have the same web address-Countrywide is the different one. The billing address is that of a rental home she owned at the time. She received no mail there except her mortgage statements.

She doesn't recall having a credit card with COUNTRYWIDE but they were the holder of her mortgage on that home. B of A took over and she may have had a 2nd with B of A for about the amount that is listed on this credit card statement. All acct. numbers have been blackened out. She has no records to reference due to a flood in our 1st floor (office) where all was lost. Over the years we have had many mortgages and credit card accts. It is difficult to remember details on specific ones and this one especially is unfamiliar to us.

This home was foreclosed on and auctioned off and a 1099 was issued.

Just some background info. We have close to nothing left. We intended to invest in Fl. real estate-then sell for retirement (yea for us). We lost 4 homes and have had many health issues. My wife battled for 2 years stage 4 lymphoma in '05. SHE WON-a fighter that one is! I had a massive heart attack in '07-another in '09 and a mild stroke in '10. Guess we're tough old birds. We will be on social security in a year-we receive food stamps now and I'm still trying to get disability or SSI but receiving nothing at this time. We have about $500 in the bank with no income to speak of. We sold most of our personal belongings after the loss of our properties to buy this lil "fixer-upper" for under 19k (alot of fixin' required!) and we filed a "tenants by entireties". Not lookin' for any sorries-we all got it rough these days-just some background info.

We may be old but we got some fight left in us!!

We do not know if we should or could stop this Motion for Mediation. Unclear on what she would mediate as she is not certain what this acct. is. We would like to continue on the course we are on but perhaps we should consider bankruptcy as we believe we may be on the verge of being sued by another JDB but, again, we have no money left so that may not be an option.

We also think we may be Judgement Proof but would still like to fight!!

Any suggestions would greatly be appreciated.

Thanks for your time and must say we are mighty proud to see you youngins' pulling together like this for the common good!

Good-luck and many thanks to all of you!

Edited by backinthe50's
spelling error again-deleating stuff
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RULE 1.700. RULES COMMON TO MEDIATION AND ARBITRATION

(a) Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested civil matter to mediation or arbitration. The parties to any contested civil matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral.

(1) Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral.

It appears that they can, but if this was requested by the plaintiff, I would reject the proposal. Midland has lousy paperwork, they ususally lose when they run into a fight. If they can't get anything from you, have some fun with them and make them bleed money.

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Went to the courthouse yesterday to see if Midland did indeed file a request for a Motion to Mediate by telephone. They had not as of yesterday. I asked the clerk there how I should respond if I did not want to mediate. She said, first of all, the Motion may still be on the way (got mine 7 days ago) and also, there were no forms she knew of for me to fill out, just to send a letter to the court requesting the Motion be denied or that I did not wish to mediate at this time. Don't know if that is correct but at this point I am just going to continue with my Request to Produce/Request for Admissions/Interrogatories and probably send a letter to the court requesting NOT to have a mediation as I am unclear as to what the debt is.

Also, I have been reading alot on the Bankruptcy section of this forum and we did find some pro-bono lawyers 110 miles away that we are going to call to see if we could possibly go this route.

If we did file bankruptcy-would this current case be cleared or is it too late to affect this case?

Edited by backinthe50's
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I understand you dont wanna mediate, but in the other hand if you fall in a technicism it might be bad. I would do as Franco (dictator of Spain), did with Hitler when he went to speak with him to ask for military assistance in the war. He just didn't say nothing the whole time. There's a said in spanish it translate something like this "you are a slave to your words and owner of your silence". It gives you a good chance to see what they want, just say no to every single offer and nothing else.

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Yes, you are correct. If the Motion for Mediation is filed and accepted by the Court this a course certainly worth considering. Is there a possibility this action was another scare tactic if the Motion never gets filed? Is that legal to send me a letter stating the Court was sent this Motion for Mediation if it wasn't? The letter was just signed-not notorized or anything. One more question. How should I respond when a collector calls and says they represent (so and so-some law firm) and ask me to verify the last 4 of my social to be able to confirm I am the party they are looking for? I have been receiving these calls ever since I responded to this law suit. Prior to the law suit I received several phone calls to my cell-all times of the day and night-sometimes they just whispered over and over my first name. I blocked these calls and this latest one I said nothing except I only respond to written communication.

Thank-you so very much!

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I do not know the laws, but according to what legaleagle posted:

(1) Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral.

There should be a date for the mediation. You don't need to speak with them over the phone, in fact refuse to do so and tell them to C&D in written. You only need to talk with them on the conference/hearing date as stated by the court, and then just say no to every proposal they make.

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If no motion has been filed with the court, (it may be some day) they are violating the rules of procedure and perhaps the FDCPA by stating that they are taking specific legal action, then not doing it. Just keep up to speed on your case. When the motion does arrive, file an objection. As for the mystery calls, photograph your caller ID and see if you can track down the number. Calling a cell phone can be a separate violation. Never give any caller any info. Record the calls if you can.

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Thank-you so very much. I would like to keep posting as the case proceeds. I see you guys who answer help an awful lot of people so I'm very thankful you have responded. I will try to keep the post as short and to the point as I can. We did get our recorder out today for this purpose-can take photos with the phone.

Thanks again for your time!

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Just checked my credit report. Midland was my only new inquiry. They apparantly now have 2 of my accounts from Chase. The report says it goes back 17 years. The only Countrywide acct. is a mortgage-settled by a 1099 after BofA took it over and foreclosed. Midland has both of the Chase accts. as opening 06/11. Did they start the account over because I did not open an account with them. I also see another JDB has gotten yet another acct so I imagine I'll be hearing from them as well.

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