matt-in-oregon

Lost in Arbitration to Midland (Oregon) Now What?

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Hello.

 

My wife got a Complaint filed against her for an older credit card.

The Complaint had a major error in it. It stated the original creditor

was Chase Bank when it was actually Washington Mutual Bank.

 

But, my wife lost in Arbitration.

 

HELP!

 

We lost "round 1" (arbitration), but I want to beat

these guys and will need to take this to "round 2"

HERE ARE THE FACTS:

1. Who is the named plaintiff in the suit?

Midland Funding, LLC

 

2. What is the name of the law firm handling the suit?

Suttell & Hammer, P.S

Bellevue, WA

3. How much are you being sued for?

$7,XXX.XX

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

Washington Mutual (but Plaintiff’s Complaint stated Chase Bank!)

5. How do you know you are being sued?

Process server at the door.

6. How were you served?

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

Yes.

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

Yes, Suttell & Hammer sent a debt collector letter.

9. What state and county do you live in?

Oregon

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

April, 2010

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

We're within the SOL (I believe)

12. What is the status of your case?

LOST in Arbitration

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

NO

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.

NO

15. How long do you have to respond to the suit?

We already LOST in Arbitration.

We have til March 6th to file an APPEAL / TRIAL DE NOVO.

Or we can SUE THEM in Federal Court.

I want to fight them til the end.

 

Thinking of APPEALING / Trial De Novo or SUING THEM in FEDERAL Court.

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

NOTHING is attached.
 

 

Any advise will be GREATLY appreciated.

 

Thank you!  :-)

 

 

 

 

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PS: Here is the decision from the Arbitration Attorney >>>

 

The following is my decision regarding the arbitration hearing that was conducted on [DATE].

 

The basic facts of the case can be summarized as follows. [DEFENDANT] initially acquired a credit card through Washington Mutual Bank and used the card and incurred debt. In September 2008 Chase Bank acquired Washington Mutual Bank and acquired all of Washington Mutual’s credit card accounts. [DEFENDANT] testified that she continued to use the credit card and make charges on it when the card became owned by Chase Bank. On July 14, 2010 Chase Bank sold or assigned its rights to collect debts owned on the account to Hilco Receivables LLC. In December 2009 Hilco Receivables merged with Equable Ascent Financial, LLC so that Equable and Hilco had the right to collect on the debt owed by defendant, [DEFENDANT]. On May 14, 2012 Equable Ascent sold the debt on the account to plaintiff Midland Funding, LLC. Defendant had no evidence to indicate that any of these assignments or sale of the debt were not proper or violated any agreement. Based on the evidence produced to me by plaintiff, the assignment of the debt to Midland Funding was proper and the collection of the debt can be enforced by plaintiff, Midland Funding, LLC.

 

Defendant did not issue any written complaints about the debt not being owed to Midland Funding or any of its predecessors who held the debt. The last payment she made on the credit card was April, 8 2010 and she testified that she made that payment to Chase Bank so that through her conduct she acknowledged and agreed to an assignment of the debt to Chase Bank. There were no objections to any of the later assignments of the debt to the other three parties listed above, including the plaintiff. The defendant further testified that she had received the statements at her former address on [ADDRESS].

 

Defendant’s arguments are:

 

(1) plaintiff did not supply her with a copy of the contract with Washington Mutual (OC),

 

(2) she does not have a contract with plaintiff, Midland Funding,

 

(3) the complaint is in error as it indicates the contract was issued by Chase Bank and she contends it was issued by Washington Mutual Bank, and

 

(4) she contends that the Fair Debt Collection Practices Act under Section 1692E was violated.

 

Defendant did not raise the FDCPA as either an affirmative defense or a counterclaim in her Answer pleading. Therefore, there is no FDCPA counterclaim before me to consider and I cannot make a ruling on that issue. I have reviewed 15 USC 1692E regarding false or misleading representations and I do not find that any of those provisions apply to the activities engaged in by plaintiff. So even though defendant did not raise violation of FDCPA as an affirmative defense, I do not find that there is any evidence that would support that defense.

 

Whether or not a written contract still exists between defendant and Washington Mutual or Chase Bank does not prevent plaintiff from pursuing its breach of contract claim. Plaintiff is correct that the case of Citibank v Santoro, 210 Or. App. 344, 150 P3d 429 (2006), rules that a creditor does not have to produce a copy of the contract or credit application to establish the existence of a valid credit card debt. The conduct of the parties establishes the contract so that when a creditor (Washington Mutual and Chase Bank) issues a credit card to the defendant/debtor and the debtor then uses the card and retains it, then the card itself constitutes a formal and binding contract. [DEFENDANT’S] conduct in using the card constitutes mutual assent to the terms of the credit card agreement and she is obligated to pay the debt owed through her use of the card. Plaintiff produced evidence through the exhibits and testimony of witness [WITNESS] that [PLAINTIFF] used the card even after the card’s ownership was transferred to Chase Bank and, therefore, she assented to owing the debt incurred by her used of the card. Plaintiff provided evidence that the balance owed was $7,XXX.XX in April 2010 and they are not seeking any prejudgment interest.

 

The final question concerns the Complaint which originally alleges the credit card was originally issued by Chase Bank but instead it was issues by Washington Mutual. Plaintiff’s counsel moved to amend the pleadings to conform to the evidence which clearly shows that Washington Mutual was the original creditor and the evidence further shows that Chase Bank acquired Washington Mutual including the credit card account it had with defendant. Plaintiff’s motion to amend the pleadings is granted and further the error in not naming Washington Mutual as the original creditor was not prejudicial to defendant as the parties, through their conduct, know and acted under the belief that Chase Bank had acquired Washington Mutual.

 

I am awarding plaintiff’s damages in the amount of $7,XXX.XX. I am further awarding post-judgment interest at the statutory rate of 9% per annum and plaintiff’s costs. If defendant has an objection to the cost bill already presented by plaintiff, then she should submit her written objections within ten days of the date of this letter. If there is no dispute over the costs, then I will immediately prepare and submit an arbitration award to the court.

 

Sincerely,

 

Mr. Arbitration Attorney

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Matt,

 

I really don't think it would have made any difference how your wife testified as this is/was a Kangaroo Court and nothing more then a dress rehearsal for your day in real court at trial de novo appeal.

 

Your next step will be to file motion to vacate arbitration and reqest for the automatic trial de novo appeal. Search the internet for "trial de novo + Oregon" and you will find what you need. If not I have templates I can post for you.

 

General thoughts in review:

 

Most glaring defects of Defense testimony. (Your papers graded by the arbitrator)
 
  1. Defendant testified that she continued to use the credit card and make charges on it when the card became owned by Chase Bank. 
  2. The last payment she made on the credit card was April, 8 2010 and she testified that she made that payment to Chase Bank so that through her conduct she acknowledged and agreed to an assignment of the debt to Chase Bank. 
  3. There were no objections to any of the later assignments of the debt to the other three parties listed above, including the plaintiff.
  4. There is no FDCPA counterclaim before me to consider and I cannot make a ruling on that issue. I have reviewed 15 USC 1692E

Note: Some dialog advocating all these predecessors are third party to this action needed stating and Defendant owes not one penny to Plaintiff and don't recall if ever having any account with Chase/Wamu. Any statements, agreements, etc are third party business records and nothing more then unauthenticated groundless hearsay.

 
Issues to attack on appeal:
 
Chase/Wamu sold or assigned its rights to collect debts owned on the account to Hilco Receivables LLC
  • affidavits and witnesses to testify to the sale, inclusion of Defendant in Bill of Sale, Chain of title, redacted list of names including defendants on the bill of sale document etc.
  • You will again want to provide a general denial of debt, an additional affidavit disputing this claim. 
 
Hilco Receivables merged with Equable Ascent Financial, LLC 
  • If Equitable Ascent Financial LLC is the Plaintiff they need affidavits, bill of sales, and witness to testify at appeal. You will want to provide: a) General Denial of Debt  b ) Counter affidavit disputing this debt 

Equable Ascent sold the debt on the account to plaintiff Midland Funding, LLC.

  • This is where it gets interesting. Paper trail. Same steps again, affidavits opposing debt, General Denial, from all predessors, Bill of Sales, Authentication of all documents - no hearsay,  request appearance of all witnesses previously mentioned.

Your going to be dealing with the Court so discovery will be the major issue you want to start with. Midland will more than likely try for a Motion for Summary Judgement. The key to killing that will be to keep requesting discovery and striking documents and/or motions for exclusion or limine. 

 

If your competent in dealing with two issues at once you can amend your answer (probably should anyway) to include a counter claim for FDCPA violations, FCRA or Oregon's Fair Credit Reporting Act Violations. 

 

HP

 

 

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Trial De Novo now and utilize that decision to your advantage.  But don't focus on things that are not important IE the original creditor being stated as Chase.  That is a MINOR defect.  You state in your OP that it is a major error, but it is not.

 

You want to focus on them proving the chain of title to midland, it's been sold numerous times there has to be chinks in that armor somewhere.

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Pretty much all the old WAMU/Providian accounts are listed under Chase now, so that is not an issue. What is good about those old WAMU accounts is that they have trouble coming up with the documentation, especially on the older ones. You need to concentrate on making them prove you owe what they say. Just make sure you understand how the court system works in your area and do not let them run over you. 

 

This is a recent thread where a poster was sued on an old WAMU account in WA. Different state but same Federal District as you. It was with Cavalry and they dismissed with prejudice. 

 

http://www.creditinfocenter.com/community/topic/319887-cavalry-vs-me-in-washington-state/

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Matt,

 

Here is a link that will help you here in Oregon.

 

 

Case Law Oregon- Trial De Novo

 

http://www.publications.ojd.state.or.us/Publications/A118312.htm

 

Be sure to include a certificate of service and send a copy of your Petition and Memo to opposing attorney.

 

Here is a very complicated memorandum from California that may help you with some ideas for your memorandum of points and authorities.  

 

http://www.scribd.com/doc/43809967/Larry-Hagman-s-Memo-Opposing-Citigroup-s-Petition

 

 

HP

Vacating Arbitration Award - Oregon 20 days.txt

Appeal Reversal of Arbitration for Debtor Oregon Template.doc

Petition to Vacate Arbitration Award Template_CIC Use.doc

Memorandum for Petition to Vacate Arbitration OR Template.doc

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As per their rules:

 

Oregon Statutes - Chapter 36 - Mediation and Arbitration - Section 36.425 -

Filing of decision and award; notice of appeal; trial de novo; attorney fees and costs;

effect of arbitration decision and award.

We filed a “notice of appeal and request for a trial de novo”  >>>

 

 

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES

MIDLAND FUNDING, LLC,

    Plaintiff,

    v.

[DEFENDANT NAME],

    Defendant

    ))))))))
))
)
)
)
        

Case No. CV-XXXXXX


NOTICE OF APPEAL FROM ARBITRATION AWARD AND
REQUEST FOR TRIAL DE NOVO




    [DEFENDANT hereby gives notice of appeal from the arbitration award filed on April 16, 2013 and requests a trial de novo on all issues of law and fact.


DATED this 6th day of May 2013.
        
        
        
        
        Signed [DEFENDANT]
 

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Have you heard from the Court regards a Court Date or the Plaintiff in opposition.

 

HP

Hi Huey Pilot,

 

Yes, we got a letter saying we need to attend

a "Pre-Trial Hearing" on June 5, 2013.

 

Should be fun.

 

Thanks,

 

Matt

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OK, with this case we file for >>>

 

NOTICE OF APPEAL FROM ARBITRATION AWARD

AND REQUEST FOR TRIAL DE NOVO

 

 

THIS Wednesday coming up is our "Pre-Trial Hearing."

 

Ultimately what we want to do here is have Midland

prove EVERYTHING. (Which they cannot do!)

 

What are our next steps?

What do we need to prepare for the "Pre-Trial Hearing?"

 

Requests for Admissions?

Requests for Documents?

 

I found some GREAT ideas in this thread:   :banana:

http://www.creditinfocenter.com/community/topic/319887-cavalry-vs-me-in-washington-state/

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Don't forget, they need to prove the assignment from hiclo to EAF.  They have been crossing off hilco in pen and writing EAF in on the bill of sale.  That's not good enough, and be sure to challenge that in court.  They need to show documents of the merger, or seperate bill of sale.  Also make sure they are licenced to collect in your state.

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Read the thread we have on here about how to beat Midland. It should tell you everything you want to know.

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true all that read ASTmedics thread for that. the concepts will guide you. the trial de novo will go over the arbitration paperwork. concentrate on choice of law and SOL for Delaware. also Standing.

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Is there any way to re-schedule

a "Pre-Trial Hearing?"

 

Motion for Enlargement of Time.

 

Wife is booked all week.

 

EDIT:

No, I'm going to make her go. Always show up in Court!!!

That may be all it takes.

These JDB's are just looking for default and may not want to fight.
 

Plus, I found ASTmedic's win and it's excellent. Thanks for the tip.  :-)

 

http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

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Matt,

 

I would try calling the attorney and negotiating a better time and arrange a conference call with the Judge to coordinate when. This is going to be a pretty informal meeting anyway to determine readiness and see if everybody has all their discovery and documents in order. Also it wouldn't hurt to write a simple but brief letter to the assigned Judge with your request and copy the attorney.

 

HP

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UPDATE:

 

I talked the wife into showing up

for the "Pre-Trial Conference"

 

They set the Trail for September.

 

The Plaintiff said they would

"Motion for Summary Judgement"

since they claim they own the debt

and already proved chain of title, etc.

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