grace0919

Midland answer to complaint anything i should change

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Is there anything i should change before i file my answer. This has been filed in MIchigan. Thank you in advanced. Midland represented by Weltman, Weinberg & Reis. Basically sent a Bill of sale and agreement with no names or account numbers on it, and old statement that does not show purchase, a which looks like a word document with name amount owed when sold and when opened. I have never made a payment on this account opened in 10/09 as stated on papers for reasons that I believe my ex husband opened when we were married.

 

 

 

 

creditinformer.docx

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It is a word document and Michigan is a community property state and no his name is not listed. I think he may have opened it with out my knowledge but the JDB does not list him on anything or does his name appear on anything.

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Hopefully someone from MI can chime in. My thought would be to keep the denials general. If they have violated the statutes that you cited, you may be doing their work for them by alerting them to their mistakes.

 

It sounds like the documentation you received is pretty thin - a generic BOS and a charge-off document. That can be enough for them to win, but you are in a better position if they have no monthly statements. Given the stuff with your ex, this one may be messy enough for them to walk away from.

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If I am a judge I see a bill of sale between Midland and Citi on page one. On page four I see the entry for a specific account that was purchased in the transaction referenced by the bill of sale. Page four also identifies a debtor. Pages two and three are correspondence to the debtor from the OC regarding this account.

 

These documents say that the debtor used, was billed and defaulted on a Citibank credit card. Midland bought that debt and is now suing to collect. About all that's missing (and easy to obtain) is an affidavit from Midland stating that the records referred to in the bill-of-sale were incorporated into Midland's normal business records.

 

See this thread for a Michigan resident that poured her heart and soul in her case. Read it from the beginning for full effect...

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My only concern with arbitration is the following which is in the card agreement i found online.  I have to pay the intial fee then they are responsible for the first hearing, then after that it falls back on me to pay. Thoughts?

 

 

"Who pays? Whoever files the arbitration pays the initial filing
fee. If we file, we pay; if you file, you pay, unless you get a
fee waiver under the applicable rules of the arbitration firm.
If you have paid the initial filing fee and you prevail, we will
reimburse you for that fee. If there is a hearing, we will pay
any fees of the arbitrator and arbitration firm for the first day
of that hearing. All other fees will be allocated as provided by
the rules of the arbitration firm and applicable law"

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Would MIdland Funding have to pay to initiate arbitration?

 

You need to become familiar with the JAMS consumer standards (assuming JAMS is listed as an arb forum in the OC's agreement):

 

http://www.jamsadr.com/rules-consumer-minimum-standards/

 

The most you would have to pay is $250.00.  Midland would have to pay the rest.

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My only concern with arbitration is the following which is in the card agreement i found online.  I have to pay the intial fee then they are responsible for the first hearing, then after that it falls back on me to pay. Thoughts?

 

 

"Who pays? Whoever files the arbitration pays the initial filing

fee. If we file, we pay; if you file, you pay, unless you get a

fee waiver under the applicable rules of the arbitration firm.

If you have paid the initial filing fee and you prevail, we will

reimburse you for that fee. If there is a hearing, we will pay

any fees of the arbitrator and arbitration firm for the first day

of that hearing. All other fees will be allocated as provided by

the rules of the arbitration firm and applicable law"

 

 

I bolded the important parts of the arbitration agreement you quoted.  The JAMS rules state that for consumer arbitration, the consumer's filing fee is $250.  Since your agreement says you must pay the full filing fee, that means you will have to send in $250 with your initial paperwork to JAMS.  After that, according to both the card agreement and JAMS rules, Midland must pay all remaining arbitration costs.  This will cost them $15k just to start the arb and can easily run up to $20k or more.

 

Midland will almost always drop the case rather than pay for arb.

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I know i have been a kinda a pain regarding this issue and i want to thank everyone for their input. I have another request. Anyone have a sample of MTC in Michigan? Thank you in advance

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Look in the arbitration section for a thread titled The Strategy and Steps of Arbitration, started by Linda7.  There are generic samples, not MI-specific, there. 

 

(For some reason I can't copy and paste anything in replies today, or I would have provided a link.)

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STATE OF MICHIGAN

IN THE XXXXXXX DISTRICT COURT

 

 

 

This is my motion to compel arbitration any thoughts or inputs as to anything i should change? Thank you

 

 

Midland Funding, LLC

 

          Plaintiff

 

VS                                                                                                       Case No: XXXXXXXXX

XXXXXXXXXXXXXXX

 

            Defendant

 

 

MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY CASE AND COMPEL ARBITRATION

 

NOW COMES the Defendant XXXXXXXXXXX (“DEFENDANT”) Pro. Se. and hereby moves this court pursuant to 9 U.S.C Section 1, et seq, or in the alternative, MCR 3.602  for an Order compelling the parties to submit to arbitration and stay the case.  In support of its motion, “DEFENDANT” shows the Court as follows:

 

1.   On or about xxxxxxx x, 2014, Plaintiff filed its Complaint against Defendant referencing “Citibank (South Dakota) credit agreement,” (See Complaint Exhibit)  however Plaintiff  failed to include a copy of said agreement.  DEFENDANT has located a copy of said agreement and attached it as Exhibit “A" a copy of the purported Cardholder Agreement (hereto referenced as “Agreement”).

 

2. The "Agreement" states "this card agreement is your contract with us. It governs the use of your card and account". (Page 1 Paragraph 1) Exhibit A

 

3. The "Agreement" states "either you or we may, without the other's consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called claims)" (Page 9 Paragraph 5 Exhibit A)

4. The Agreement states "All claims are subject to arbitration, no matter what legal theory they are based on or what remedy they seek" (Page 9 Paragraph 6) Exhibit A

 

5. The "Agreement" states Whose claims are subject to arbitration? "not only ours and yours, but also claims made by or against anyone connected with us or you or claiming through us or you, such as co-applicant or authorized user of your account, an employee, agent, representative company, predecessor or successor, heir, assignee, or trustee in bankruptcy". (Page 10 Paragraph 2 Exhibit A)

 

6. The “Agreement” What time frame applies to Claims subject to arbitration? "Claims arising in the past, present, or future" (Page 10 Paragraph 3) Exhibit A

 

 7. The “Agreement” also states "This Arbitration agreement is governed by the Federal Arbitration Act (the FAA"). (Page 10 paragraph 4) Exhibit A

 

8.  The "Agreement" states " At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such claims are part of a law suit." (Page 11 Paragraph 2) Exhibit A

 

9.  Additionally, the agreement states that “the person who starts the arbitration proceeding must choose an administrator, which can be either the American Arbitration Association  (“AAA”), www.adr.org, (800) 778-7879, or JAMS, www.jamsadr.org. (800) 352-5267

 

10. The FAA and the USC have determined that there is an absolute right to arbitration, if a contract contains a clause allowing for private contractual arbitration in lieu of litigation.

 

11.  The DEFENDANT has therefore officially elected for arbitration with JAMS, and has sent notification to the PLANTIFF at the address provided for in the Complaint, as well as the last known address of Council for PLAINTIFF, as well as in the Court documents, here attached as Exhibit “B”.  All claims of the Plaintiff, therefore, as delineated in the “Agreement” are subject to arbitration.  The venue shall be JAMS.

 

     Pursuant to 9 U.S.C. § 1, et. seq., DEFENDANT moves this court for judicial relief to enforce the arbitration provision contained in the “Agreement”

    Pursuant to MCR 3.602©, DEFENDANT moves this Court for a stay of these proceedings pending the outcome of its motion, and pursuant to , DEFENDANT moves this Court for a stay of these proceedings pending the outcome of the arbitration proceeding.

   WHEREFORE, DEFENDANT respectfully moves this honorable Court for (i) an Order compelling PLAINTIFF to arbitrate, according to terms set forth in the “Agreement”, their claims set forth in their Complaint, (ii) an Order staying these proceedings pending the Court’s resolution of the motion, and (iii) an Order staying these proceedings pending the outcome of the arbitration proceedings.

 

 

                                                                                                Respectfully submitted,

 

_____________                                                                      _________________________

Dated                                                                                      XXXXXXXXXX, Pro Se

 

 

 

 

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this Motion to Dismiss, or in the Alternative, Stay Case and Compel Arbitration on the plaintiffs or their attorneys By Certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). 

__________________Date ___________________________________Signed


 

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Today had my MTD pending arbitration. Midland kept trying to push for Summary Judgment and I had to continue to remind them that we were there today on my motion not theirs. The Judge allowed my MTD for arbitration. Then asked Midland in a sarcastic way as to how was Midland going to handle this arbitration issue and what were they going to do about it. Because he (the judge) was curious because the cost factor would out way any amount owed. The attorney said she did not know how they were going to deal with the arbitration issue. I had a feeling the Judge did not like Midland because i mentioned that Midland had many class action lawsuits in different states for their practices. Of course Midland wanted that stricken from the record but the Judge did not strike it. Yea victory!

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Update on Midland Funding Case

 

Case was compelled to arbitration. Just received an email today stating "Please be advised, that the plaintiff will not be participating in the arbitration. The case was dismissed in the court. We will be closing the file accordingly".

 

Thank you everyone for all the advise

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