Sued by Midland funding in Iowa

[Stewart's]

Served papers filed in Iowa district court small claims division an I don't know what to do. Here's the rundown.

1. Midland funding

2. Litow and Pech, Cedar Rapids IA (about an hour and a half from me)

3. $1200.00 original credit line was $700

4. HSBC charged off in late 2009

5. Served at home

6. Served by Sheriff

7. They gave the papers to my wife. Proper in IA

8. No correspondence prior to suit

9. Iowa

10. Last payment was Mid 2009

11. SOL is 10 years in iowa. Don't know if I can use another state.

12. Served but not answered

13. Didn't dispute with credit bureaus

14. Did not request debt validation

15. My 20 days to respond to summons will be up in 5 days

16. No evidence submitted with summons

Paperwork reads as follows

You are hereby notified that the plaintiffs demand from You the amount of (around $1200) plus the following incidental charges interest in the amount of (around $130) Calculated by adding six months from the date of last bill or payment whichever is later pursuant to Iowa code section 535.2 1F, future interest at the statutory rate and cost. total amount requested (around 1200). This demand is based on: the defendants became indebted to HSBC Bank Nevada through a series of transactions.HSBC thereupon submitted to defendant monthly statements of result the final one showing a balance in their favor of around 1000 which defendant accepted and in which defendant acquiesced defendant impliedly agreed to pay sum by retaining said statement without objection and thus assured that said sum would be paid. This statement represents a final adjustment of the respective demands of each upon the other as the whole account and to all items thereon. HSBC Bank Nevada assigned all right title and interest in said account to plaintiff, plaintiff is owner of the account

Should I be going to court, just answer them and hope they dont show or do I demand arbitration. I don't know what to do next.

Thanks

[1stStep]

Answer - deny everything as appropriate.

If your card has an arbitration clause, look into it...

[Stewart's]

The account was started in 2005 and the HSBC cardholder agreement from that year does have an arbitration clause with JAMS as an option, should I pursue that?

If I appear in court I just don't know what I say because Iowa small claims doesn't have discovery so I don't know what documentation they have.

[racecar]

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

Credit card agreement database - Consumer Financial Protection Bureau

Edited November 24, 2012 by racecar

[racecar]

ARBITRATION

Federal Arbitration Act

This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the

Federal Arbitration Act, 9 U.S.C. Sections 1 - 16 (the “FAA”). In making decisions or awarding remedies, the arbitrator

shall apply the applicable substantive Law, consistent with the FAA, that would apply if the matter had been brought in

court. The arbitrator shall provide written reasoned findings of fact and conclusions of law upon written request as set forth

in the applicable arbitration association procedures. The arbitrator’s award shall not be subject to appeal except as

permitted by the FAA and in the paragraph below captioned “Decision and Appeal.” Judgment upon the award may be

entered in any court having jurisdiction.

Claims

Unless you have exercised your right to opt out of this arbitration provision, as set forth in the paragraph below captioned

“Opt Out of Arbitration,” this arbitration provision shall apply to any Claim (defined below) by or against us, or you or any

other Covered Person (defined below). You agree any claim, dispute, or controversy (whether based upon contract; tort,

intentional or otherwise; constitution; statute; common law; or equity and whether preexisting, present or future), including

initial claims, counterclaims, cross-claims and third party claims, arising from or relating to (a) this Agreement, the

application, your Account, any debt cancellation or debt suspension product, any fraud prevention, identity protection or

other account enhancement products, any transaction or activity involving any payment or failure to make payment on

your Account, or any solicitation, advertisement, promotion, or oral or written statements related to this Agreement or your

Account or any of the foregoing, or ( the relationships which result from this Agreement and your relationship with any

Covered Person in connection with the matters set forth in subsection (a) of this paragraph (any of the foregoing a

“Claim”), shall be resolved, upon the election of you, us, or any other Covered Person described below, by binding

arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator (the

“Administrator”) selected at the time the Claim is filed or received by a party to the Claim. However, “Claim” does not

include any dispute or controversy about the validity, enforceability, coverage or scope of this arbitration provision or any

part thereof (including, without limitation, the paragraph below captioned “Parties to Arbitration and Class Action Waiver”

and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide. However, any

dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a

court, to decide.

Starting an Arbitration and Arbitration Administrators

If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. This notice can be given after

the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, your notice must be sent to: HSBC

Bank Nevada, N.A., P.O. Box 98740, Las Vegas, NV 89193-8740, ATTN: ARBITRATION DEMAND and our notice must

be sent to the most recent address for you in our files. The party seeking arbitration must select as the arbitration

administrator either the:

American Arbitration Association (“AAA”)

1633 Broadway, 10th Floor

New York, NY 10019

www.adr. org

(800) 778-7879

JAMS

620 Eighth Avenue, 34th Floor

New York, NY 10018

JAMS Arbitration, Mediation, and ADR Services

(800) 352-5267

If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion to

compel arbitration with the court which is granted, it will be the responsibility of the party prosecuting the Claim(s) to

commence the arbitration proceeding. If neither the AAA nor JAMS is able or willing to handle the dispute, then the court

will appoint an arbitrator. The arbitrator shall be a lawyer with more than ten years experience or a retired or former judge.

The rules and forms of JAMS and AAA may be obtained by writing to these organizations at the addresses listed above.

The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, nor by state or

local laws that relate to arbitration proceedings. If you or we request, the arbitrator will honor claims of privilege

recognized under applicable law and will use best efforts to protect confidential business, financial or trade secret

information of a party (including through use of protective orders).

Small Claims Exemption

We agree not to invoke our right to arbitrate an individual Claim you may bring in small claims court or an equivalent court,

if any, so long as the Claim is pending only in that court. However, if that Claim is transferred or appealed to a different

court, we reserve our right to elect arbitration at such time.

Location of Arbitration and Fees

Any participatory arbitration hearing that you attend will take place in a location that is reasonably convenient to where

you reside. On any Claim you file, you will pay the first $50 of the filing fee. At your request we will pay the remainder of

the filing fee and any administrative, arbitrator or hearing fees charged by the Administrator or arbitrator on any Claimsubmitted by you in arbitration up to a maximum of $2,500. If you are required to pay any additional fees to the

Administrator or arbitrator, we will consider a request by you to pay all or part of the additional fees; however, we shall not

be obligated to pay any additional fees unless the arbitrator grants you an award. If the arbitrator grants an award in your

favor, we will reimburse you for any additional fees paid or owed by you to the Administrator or arbitrator. The parties shall

bear the expense of their respective attorney’s and expert witness fees and costs, except as otherwise provided by law. If

a statute gives you the right to recover any of these fees, or the fees paid to the Administrator or arbitrator, these statutory

rights shall apply in the arbitration notwithstanding anything to the contrary contained herein. To the extent that such a

statute is not applicable, we will pay your reasonable attorney’s and expert witness fees and costs to the extent you

prevail on Claims you assert against us in an arbitration which you have commenced against us or to the extent required

under applicable law for this arbitration provision to be enforced. If the arbitrator issues an award in our favor, you will not

be required to reimburse us for any fees we have previously paid to the Administrator or arbitrator or for which we are

responsible or for any attorneys’ fees or costs we have incurred in prosecuting or defending against Claims in an

arbitration.

Covered Persons

This arbitration provision covers Claims by or against (a) us, any corporate parent, subsidiary, or affiliate, any predecessor

or successor of the foregoing, and any officer, director, employee, or representative of any of the aforementioned, ( you

and any authorized user, and any other person claiming through you or any authorized user, and © any other person or

company assisting us in offering Cards, administering Accounts or providing Card related benefits or services if you assert

a Claim against such other person or company in connection with a Claim you assert against any person or entity

specified in subparagraph (a) of this paragraph. All of the aforesaid persons and entities are “Covered Persons” for

purposes of this arbitration provision.

Parties to Arbitration and Class Action Waiver

Arbitration shall be conducted in the name of individually named parties. Unless all parties consent, neither you nor we

may join, consolidate, or otherwise bring claims regarding two or more accounts, individuals, or account holders in the

same arbitration, other than Covered Persons, joint applicants or authorized users of an account. There shall be no class

actions, private attorney general actions, or other representative or collective actions, in an arbitration, even if the

underlying dispute has been asserted in a court as a class action, private attorney general action, or other representative

or collective action. No party may advance a Claim in arbitration on behalf of or against a person in a representative or

collective capacity, or on behalf of or against a person who is not an individually named party to the arbitration; nor may a

party seek an award or benefit in arbitration on behalf of or against a person who is not an individually named party. The

arbitrator shall not have authority to resolve any claim advanced by or on behalf of anyone who is not an individually

named party, and shall not have the authority to make an award for the benefit of, or against, anyone who is not an

individually named party. No class actions or joinder or consolidation of any Claim with the claim of any other person are

permitted in arbitration without the express written consent of you and us. These limitations are hereafter referred to as

the “Class Action Waiver.” Notwithstanding anything herein to the contrary, the Class Action Waiver does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is

seeking relief on behalf of a class of borrowers including you. This means that we will not have the right to compel

arbitration of any claim brought by such an agency. The parties to this Agreement acknowledge that the Class Action

Edited November 24, 2012 by racecar