Desperate need of help: Midland

[dullmaven]

I currently reside in Indiana. I recently recieved a summons from Midland Funding LLC regarding an account from Midland Funding, represented by Bowman, Heintz, Boscia, and Vician, P.C. regarding an old Dell account from 2006. My ex-wife had taken out an account with Dell in 2006 in my name and was unable to make payments on this account beginning in March of 2007. I was a college student at this time, and my ex-wife had promised to make payments on this account. She never did after March of '07, and then left me holding the debt in the divorce. Lawyers had suggested that we just file as "settled on all issues" as my ex had taken several cards out in my name only, and her refusal to pay back the debt would only reflect on my credit. I am currently working with a debt management company in order to get my finances back in order, but they had been making payments to Midland, as opposed to their lawyers, and therefore payments were not accepted or cashed, and Bowman has issued a summons on the alleged ammount of $1,9--.--. I spoke with their lawyers, and they only want to accept the full ammount paid in full, or payments of $150 a month, which is well beyond what my budget would allow (I am also paying debt management for addtional debts that my ex ran up in my name). My concerns are as follows:

1. In the summons, they have included information regarding the purchase of the debt by Midland, have notarized signatures, and include the transaction to Bowman, Heintz (also notarized)

2. They include an account summary from Dell financial, which includes the items purchased, billing payements, contract terms, and payment history.

3. In speaking with the lawyers, they are seeking a judgement, even if we are able to make payment arrangements.

4. The lawyers also state that they would be willing to take payments of $50 a month for 3 months only, and then will seek to increase the payement ammount after that.

With all of the information that the lawyers have on this account, would it make sense to challenge this account in my response to the complaint and go to a hearing, or would it make sense to just make the $50 payements for 3 months and see where it goes from there? Is Midland trying to pull something here with their 3 month acceptance of a lower payement? What would be the best course of action here?

Any help at all would be much appreciated. Friends suggested that I go after my ex-wife, but this is not an option, as the divorce has been finalized as "Settled on all issues." At this point, I am just trying to get my life and finances back in order and move on with my life. PLEASE HELP!

[Coltfan1972]

I am currently working with a debt management company in order to get my finances back in order.

Seems to be working out well. They've only gotten you sued. Exactly how long did it take you to fire them?

But they had been making payments to Midland, as opposed to their lawyers

Yeah right.

I spoke with their lawyers, and they only want to accept the full ammount paid in full

You blame them?

1. In the summons, they have included information regarding the purchase of the debt by Midland, have notarized signatures, and include the transaction to Bowman, Heintz (also notarized)

Normal. Notarized means that somebody stood there and confirmed the person signing the document is actually the person standing in front of them.

I can send you a notorized statement/document that says I'm president of the United States and a notary will notarize it as long as I have my I.D. that shows I am who I say I am.

3. In speaking with the lawyers, they are seeking a judgement, even if we are able to make payment arrangements.

You blame them? Of course they want that. Let's see option A you make payments to them or option B you make payments to them while they are holding a judgement that lets them come after your bank accounts, wages, and property if you don't make your payments. Which option would you choose if you were them?

4. The lawyers also state that they would be willing to take payments of $50 a month for 3 months only, and then will seek to increase the payement ammount after that.

Okay, seek away.

With all of the information that the lawyers have on this account, would it make sense to challenge this account in my response to the complaint and go to a hearing

Yes

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

or would it make sense to just make the $50 payements for 3 months and see where it goes from there?

Wanna see where it will go? Read this thread.

http://www.creditinfocenter.com/forums/there-lawyer-house/317555-being-sued-midland-while-currently-paying-midland.html

Is Midland trying to pull something here with their 3 month acceptance of a lower payement?

Yes, they are trying to pull your money away from you and put it in their pocket.

What would be the best course of action here?

Kick their a$$

PLEASE HELP!

If your willing to help yourself, of course we will help. 95% of posts like this just die away and we never see the poster again, because they don't really want to fight, they just want us to make it go away. The five percent that do fight, generally speaking, they win.

http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb-8.html#post1170725

[dullmaven]

Thanks so much for the reply. It looks like I have some reading to do! I really appreciate that you posted the links to addtional information that may come in handy. I would very much like for this to go away, but I know that I have a long road ahead of me in order to do so. It's nerve-wracking for sure, but I'm sure I will have several more follow up questions. Thanks again for the reply!

[ArtVandelay]

Thanks so much for the reply. It looks like I have some reading to do! I really appreciate that you posted the links to addtional information that may come in handy. I would very much like for this to go away, but I know that I have a long road ahead of me in order to do so. It's nerve-wracking for sure, but I'm sure I will have several more follow up questions. Thanks again for the reply!

If your ready to get help you need to answer Racecar's 20 Questions in this format. Also take the time to post your complaint/affidavit or whatever they sent you. Just don't list any personal information or exact figures.

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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

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

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. 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?

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

[dullmaven]

1. Plaintiff: Midland Funding LLC as Successor in Interest to Dell Financial Services LLC Dessignee of Webbank as assignee of Cit Bank

2. Law firm: Bowman, Heintz, Boscia & Vician

3. Ammount: 1,925.45 plus attorney fees and costs with relief, plus statutory post judgment interest

4. Original Creditor: Dell Financial Services LLC

5. I was served via first class mail, a notice was left by a sherrif at my door, and I double checked with the Clerk's office and they confirmed that I was served on October 30th.

6. A notice was left on my door as well as mailed via first class mail from the court's office.

7. This process is legal in the state of Indiana, which has a Statute of limitations of 7 years. I have 20 days to assert my written answer and address each of the issues in the complaint.

8. I have not recieved correspendance from Midland. I was never given a letter to dispute the validity of this debt. I found out about this account when I decided to try to re-establish my credit by enlisting a debt management program and pulled a credit report and found that I had a debt with Midland. I contacted Midland, who had then informed me that it was with their legal department.

9. I live in Indiana in Monroe County

10. The last payment shows as 3/09/2007

11. Statute of Limitations in Indiana is 6 years

12. I am currently in the phase of "sumons issues by sherrif upon defendant."

13. I have not disputed the debt with the credit bureaus. My wife at the time did state that she had payed off the Dell card, since she got the card in my name. I, like a fool believed her for several years. I contacted her as soon as the summons was issued, and she stated that "I actually didn't pay it off, I just wanted you to shut up about it."

14. I did not request debt validation, as there was not a letter issues from Bowman, Heintz stating that there was a pending law suit. The summons was the first I had heard of this account being with them.

15. I have 20 days from October 30th, meaning I have until November 19th to respond, giving me exactly 14 days from today.

16. Evidence: A) A copy of the terms and conditions of the "agreement" A copy of the assignment of the debt to Midland, Notarized bills of sale from Dell Financial Services to Midland and to Bowman, Heintz. 3) Electronic records provided by Dell Financial Services containing the items purchased as well as all activity and payments on this account.

I'm really concerned about how well prepared it would seem that the lawyers are in this case. My divorce was financially devistating, and I am trying my hardest to repair my credit and move on with my life. I am looking for some advice as to what to put in my response to the suit, as it would seem that Midland and their lawyers really did their homework here. I really need some help with understanding what my next steps should be in ensuring that I don't get a judgement against me. I know that I need to respond to this complaint, but I just don't know what I should say in this response. Any advice would be extremely helpful. Thanks!

[BrunoTheJDBkiller]

Midland and their lawyers really did their homework here

That would be a first. Midland hates a fight, they depend on default judgments. I suggest arbitration through the credit card agreement, for this amount that will get rid of them. See Linda7 for this, she has all the info, forms, etc.

[Flyerfan]

Listen to Coltfan. He's the man. You're lucky to have him in your thread.

[BV80]

As Coltfan suggested, considering the amount of the debt, arbitration might be a good possibility. Check out the following threads.

http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html

[BrunoTheJDBkiller]

As Coltfan suggested, considering the amount of the debt, arbitration might be a good possibility.

Coltfan IS good. He's so good he even gets credit for my suggestions. HAH.

[BV80]

As Coltfan suggested, considering the amount of the debt, arbitration might be a good possibility.

Coltfan IS good. He's so good he even gets credit for my suggestions. HAH.

Oops!

[Flyerfan]

As Coltfan suggested, considering the amount of the debt, arbitration might be a good possibility.

Coltfan IS good. He's so good he even gets credit for my suggestions. HAH.

Hahaha. That's funny.

[BrunoTheJDBkiller]

Oh well, maybe somebody will give him credit for my mistakes, which do happen occasionally. Tell you what though, if I'm facing the death penalty, he's the guy I'd want as my defense attorney. Vincenzo should take notice of this.....one more crazy idea or some goofy defense based on 12 USC 85 and he will be escorted to the court next time by Clemenza, and you'll hear....."Vinny? Oh, you ain't gonna see him no more." Leave the gun, take the Cannolis.

[racecar]

https://www.dell.com/content/topics/global.aspx/policy/en/policy?c=us&l=en&s=gen&~section=012#ustc

Dispute Resolution and Binding Arbitration. YOU AND DELL ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the individual dispute or controversy between customer and Dell.

You agree to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR DELL SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).

The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Dell will be responsible for paying any individual consumer's arbitration fees. If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. For information on AAA or JAMS, contact the following: American Arbitration Association, (800) 778-7879, www.adr.org; JAMS, (800) 352-5267, JAMS Arbitration, Mediation, and ADR Services.

[racecar]

IN THE DISTRICT COURT OF MY COUNTY INDIANA

Plaintiff

Midland funding

Vs

Defendant

dullmaven

Case Number

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS OR IN THE

ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW the Defendant dullmaven appearing Pro Se for his Motion to Compel Private Contractual Arbitration in lieu of an answer with Midland Funding and as grounds thereto states the following:

1. That on or about November 01, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration with Jams based on the terms and conditions of the Dell Purchase Agreement (see Exhibit A, attached).

3. The parties are bound by the Dell Purchase Agreement. The Arbitration Agreement states among other things:

(a.)ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DELL, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Dell") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Dell's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) or JAMS. Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in small-claims court rather than arbitration. The arbitration or small-claims court proceeding will be limited solely to the individual dispute or controversy between customer and Dell.

( THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides:A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a liberal federal policy favoring arbitration,Moses H. Cone , supra, at 24, and the fundamental principle that arbitration is a matter of contract,Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010 (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The principal purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

6. The Defendant elects arbitration with jams to settle this dispute.WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with Midland Funding pursuant to the Dell Purchase Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day 11/06/2012

my name

Defendant, pro'se

This post is for entertainment purposes only and does not constitute legal advice: contact an attorney licensed in your state for legal advice

Edited November 6, 2012 by racecar

[dullmaven]

Wow, racecar. Thank you! Thank you! Thank you! That information is a huge help! I'm so glad that I came to this board. I am very limited in my finances as I am currently trying to peice my life back together after going though a financially devistating divorce. I think that arbitration is the perfect solution, as I want to pay back the debt that my ex-wife had run up in my name and fix my ruined credit, but need help in reaching a resonable amount as well as a payment agreement that works to assist with this.

My next question is: Do I file this with the courts as the answer to the summons that I was issued?

Thanks again everyone!

[racecar]

I made a change to the motion.Motion to Compel Private Contractual Arbitration in lieu of an answer with Midland Funding and as grounds thereto states the following:

You will need to send a copy to midlands attorneys certified mail return receipt.File your answer with the court,make a copy for yourself.

send a copy of these to midland and copies for the court

JAMS Arbitration, Mediation, and ADR Services | Arbitration Agreement | Arbitration Clauses | Arbitration Rules

1.Demand for Arbitration

2.Case Submission Form

3.copy of the dell agreement

[dullmaven]

In filing the Demand for Arbitration and the Case Submission Form, Do I need to fill this information out, or does Midland do this? Do I print these out and submit the blank forms? I'm sorry for all the questions, I just want to make sure that I'm doing this correctly. Thanks!

[BrunoTheJDBkiller]

Linda7 has all the templates for this. If arb doesn't work, the ex would make an excellent third party defendant.

Edited November 6, 2012 by BrunoTheJDBkiller

[BrunoTheJDBkiller]

Bruno i give you credit for your mistakes,btw when were you ever wrong

Oh, please. She said she was 18, so I asked for ID. Those police credentials are very impressive....even have the DOB on them.

[racecar]

Just give them blank ones,the court has to grant the arbitration first,so just submit blank forms.We are secretly hoping they dismiss the case.

[dullmaven]

Awesome! I have all of this printed out and ready to go. I will submit it to the clerk's office first thing when they open tomorrow morning. Thanks for all the help. I'll keep ya posted as to how it goes.

[KentWA]

I am very limited in my finances as I am currently trying to peice my life back together after going though a financially devistating divorce. I think that arbitration is the perfect solution, as I want to pay back the debt that my ex-wife had run up in my name and fix my ruined credit, but need help in reaching a resonable amount as well as a payment agreement that works to assist with this.

Wait a minute. You have no obligation to "pay back" monies that you did not receive benefit from. If you willingly allowed her to create accounts in your name that is one thing. However if she got these accounts without your knowledge you have ZERO obligation to effectively give her more money. You need to assert Identify Theft if this is the case. To bad they did not do the proper legwork as to who the real borrower was.

My Ex did the same crap to me it was not more than 3 weeks after I lost $100K to her in our very messy divorce that I sued the first JDB over a debt that was hers. The only positive point was getting her attorney disbarred over the whole thing.

[BrunoTheJDBkiller]

Just checking, do you really know what arbitration is? This is not through the court, it is specified in the credit card agreement. It costs about 500 per hour and they have to pay for it. (they won't do it) 99% of the time they dismiss the case. Also, if for some reason this does have to go to court, name the ex as a third party defendant. (motion to implead) Why wasn't this debt taken care of in the divorce settlement?

[dullmaven]

In talking to a lawyer friend of mine, he suggested that I take the document drawn up by racecar and file it as a "motion to dismiss" due to failure to follow the arbitration agreement stated by Dell in the original contract. He noted that it would be important to highlight this in the original contract and touch on the fact that "as per the orginal Dell agreement, 'related purchases shall be resolved EXCLUSIVELY and FINALLY by binding arbitration.'" The lawyer stated that Midland and their lawyers failed to file arbitration as per the original agreement, which is grounds for dismissal by the judge. He stated that if this doesn't work, then the next step would be to answer the points in the complaint. Through this, he then suggested filing a "motion to compell" followed by a "motion for production of documents" as there was not signatures from me to validate that I own or agreed to this account. What do you guys think? Good idea?

[BrunoTheJDBkiller]

Personally, I think your lawyer friend should be disbarred as a menace to the public. He has no clue as to what he's talking about. They don't invoke arbitration, you do. Does he even know who or what Midland is? I doubt it. You have to file a motion to compel private arbitration with the court in order to get the suit dismissed from court and turned over to JAMS or whoever the agreement specifies. Linda7 has all the information on this. His suggestion concerning signatures is equally idiotic. Credit card agreements are NEVER signed.

Option two.....hire this lawyer, follow his advice to the letter, and when you get a judgment slapped against you, sue him for malpractice. Maybe he'll show up here and ask us how to defend himself.