grace0919

Midland answer to complaint anything i should change

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Yesssss!   The arbitration strategy derails yet another JDB case!  Way to go!

 

 

Yes, more and more that does seem to be the way to go.  It's probably easier for the average OP to arbitrate than to litigate.

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Congrats!  Another win using arbitration - and no arbitration hearing was even needed.  This is very typical of JDBs and especially Midland.  Nice job!

 

 

One question.... did the judge order both parties to arbitrate as written in your motion above?  If so, then technically, Midland should not be allowed to unilaterally dismiss this case.  Did they ask you to sign a mutual dismissal agreement?  If not, then they have messed up.  If they did ask, then this is where you have the ability to really stick it to Midland.  The more agressive people (like myself), would tell Midland that I will agree to sign a mutual dismissal when they pay me $1,000 and make the dismissal with prejudice.  If they don't agree, then I tell them I will not sign the agreement and they will have to pay for arbitration to continue as ordered by the court.  This really paints them into a corner and you are holding the brush.

 

Because the court ordered them to arbitrate, they must arbitrate.  They can only go against the court's order if you also agree and present a joint request to the court for the judge to sign off on.  This is another reason why getting a court to grant a MTC arbitraion is very powerful.

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Yes we were ordered to arbitration by the judge. They did not ask me to sign anything. I received an email

from Weltman, Weinberg, & Reis (Midland) to JAMS and Myself. This was the message:

 

Good morning,

 

Please be advised the plaintiff will not be participating in the Arbitration. The case was dismissed in the court. We will be closing the file accordingly.

 

 

 

Should I reply to the email and what would you suggest I write in the email. I did look on the court site and nothing has been entered yet.

 

Thank you

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Yes we were ordered to arbitration by the judge. They did not ask me to sign anything. I received an email

from Weltman, Weinberg, & Reis (Midland) to JAMS and Myself. This was the message:

 

Good morning,

 

Please be advised the plaintiff will not be participating in the Arbitration. The case was dismissed in the court. We will be closing the file accordingly.

 

 

 

Should I reply to the email and what would you suggest I write in the email. I did look on the court site and nothing has been entered yet.

 

Thank you

 

When the judge granted your motion, did he specify that the case was dismissed, or was the case stayed pending arbitration?

 

Did you pay the $250 to JAMS to file your arb case?

 

Does the court case still show open/active when you check the case online?

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I have an order that states:

 

"Defendants motion to Compel Arbitration, or in the alternative, Stay the case and Compel Arbitration be granted in part. The court grant's Defendant's motion conditional upon confirmation that the case has been submitted to Arbitration with JAMS for case resolution".

 

At the time I had paid for JAMS but was not in the system with a coordinator yet. But the Plaintiff's attorney did call JAMS the day of the hearing and was told they received my payment.

 

On the court site the last entry states " Defendant's motion to compel Arbitration entered".

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In this case, this is what I would do:

 

1.  Reply all to the email Midland's attonrey sent to JAMS and OBJECT.  I would state that I object to the respondent's notion that they will refuse to participate in arbitration.  I would state that this case was ordered to arbitration by the State Court of MI and I would include a copy of the court's order and attach that to the email.

 

2.  I would file a Motion for Sanctions with the court.  I would state in my motion that this court has ordered the parties to arbitate, however the Plaintiff has sent an email showing they are refusing to arbitrate in defiance of the court's order.  I would attach a copy of their email saying they will not arbitrate as an exhibit to my motion for sanctions.  What form the sanctions takes is completely up to the judge, but if asked, I would suggest that their case be dismissed with prejudice and for them to pay all my costs, including the JAMS fees I already paid.

 

3.  I would file an FDCPA lawsuit against both Midland and their Law firm for the violation of misrepresentation and the false statement that the court action has been dismissed when it has not been dismissed, and for the unlawful action of disobeying a court order.  I would call a few consumer attorneys and see if any of them would like to take on this suit against MIdland and their attorneys.

 

Since you have been able to flip the tables on Midland, remember that you are the one in power now.  Midland does not want to arbitrate.  They have made it very clear that they intend to avoid arbitration.  Now is when I would start to really force their hand.  I would not let them off the hook until they agreed to pay at least $1000 to me and agree to dismiss their case with prejudice as part of a settlement.

 

Of course, whether you take all of these actions is up to you. You may choose what you are comfortable with.  But just remember, the power of negotiations is in your favor at the moment. Don't let them bully you as if they have the power still.

 

Whatever you do.... SAVE THAT EMAIL.  I would print a few copies as well as save it on a cloud service like dropbox or google drive.  I would make sure I always have a copy of this email.  It not only contains proof that Midland intends to defy a court order, but also proof of their FDCPA violation.

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Fisthardcheese,

 

Thank you for all of your advise and knowledge, I will definitely take your advice and will speak with a consumer attorney. KNow to look into how to file a motion for sanctions next on my list.

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Fisthardcheese,

 

Thank you for all of your advise and knowledge, I will definitely take your advice and will speak with a consumer attorney. KNow to look into how to file a motion for sanctions next on my list.

 

Also, you may want to include as part of your motion for sanctions all of your filing paperwork and any confirmation from JAMS that they recieved your filing papers as well as a copy of your payment to JAMS.  I would include this because the order from the court said it was conditional upon showing that a case was filed with JAMS.  So, I would show the court that I was compliant in following the court order by filing the JAMS case and paying my part, and that Midland then refused to arbitrate in violation of the court order.

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@fisthardcheese

 

3.  I would file an FDCPA lawsuit against both Midland and their Law firm for the violation of misrepresentation and the false statement that the court action has been dismissed when it has not been dismissed, and for the unlawful action of disobeying a court order.  I would call a few consumer attorneys and see if any of them would like to take on this suit against MIdland and their attorneys.

 

 

What section of the FDCPA has been violated?   Do you have any court rulings that show a plaintiff's dismissal of a lawsuit if it's been ordered to arbitration is a violation of the Act?

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I don't believe they can dismiss the case without your consent. Obviously the judge has the discretion to do what he wants, but your motion was granted and the court ordered arbitration. It would be improper for the court to now dismiss a case it had a standing order on that you requested and was granted.

@BV80

I said nothing about the dismissal being a violation. The violation is in the email they sent. They put in writing that they have no intention of followingva court order. That is an action not legally allowed to take. They also claimed a false and misleading fact by stating to JAMS the court case was dismissed when it is still an open case pending arbitration. That false and misleading statement could lead a defendant to believe the case is over and then the JDB sneaks a MSJ in and the defendant would be clueless about it.

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@fisthardcheese
 

 

I said nothing about the dismissal being a violation. The violation is in the email they sent. They put in writing that they have no intention of followingva court order. That is an action not legally allowed to take. They also claimed a false and misleading fact by stating to JAMS the court case was dismissed when it is still an open case pending arbitration. That false and misleading statement could lead a defendant to believe the case is over and then the JDB sneaks a MSJ in and the defendant would be clueless about it.

 

 

What law says that they MUST arbitrate if they want to drop the lawsuit?   You'd basically be suing them for NOT attempting to collect a debt.  I can't wrap my brain around that.   Is there any case law?

 

There's plenty of federal case law that says failure to arbitrate pursuant to a court order is a failure to prosecute, and the action will be dismissed by the court with prejudice.  That's the sanction for not prosecuting.

 

Other courts have likewise dismissed cases with prejudice for lack of prosecution where the plaintiffs failed to timely initiate arbitration as ordered. See James v. McDonald's Corp., 417 F.3d 672, 681 (7th Cir. 2005).

 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (affirming dismissal with prejudice after plaintiff did not initiate arbitration for two years after the order compelling arbitration).

Federal Rule of Civil Procedure 41 (b) also provides an avenue to dismiss a case with prejudice for want of prosecution. Eades v. Ala. Dep't of Human Resources, 298 Fed. Appx. 862, 863 (11th Cir. 2008).

 

They also claimed a false and misleading fact by stating to JAMS the court case was dismissed when it is still an open case pending arbitration.

 

 

If it was stated to JAMS instead of to the consumer, it's not necessarily an FDCPA violation.   The 7th Circuit has ruled that "false statements" made to a judge are not in violation of the Act.  Whether or not that would apply to JAMS, I don't know.   However, if they did file a dismissal with the court (whether they're allowed to or not), they did not make a false statement.

 

Also, how could they file an MSJ when there's an order to arbitrate?  Even if they did try that, an MSJ must be served on the defendant, so they could not "sneak" it in. 

 

But it they did attempt to file an MSJ, I would think that would be an FDCPA violation.

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@fisthardcheese

 

 

What law says that they MUST arbitrate if they want to drop the lawsuit?   You'd basically be suing them for NOT attempting to collect a debt.  I can't wrap my brain around that.   Is there any case law?

 

There's plenty of federal case law that says failure to arbitrate pursuant to a court order is a failure to prosecute, and the action will be dismissed by the court with prejudice.  That's the sanction for not prosecuting.

 

You answered the question already.  All I said was that by refusing to arbitrate they are violating the court order.  Now, I am simply making the argument that violating a court order could be considered an FDCPA violation.

 

 

If it was stated to JAMS instead of to the consumer, it's not necessarily an FDCPA violation.   The 7th Circuit has ruled that "false statements" made to a judge are not in violation of the Act.  Whether or not that would apply to JAMS, I don't know.   However, if they did file a dismissal with the court (whether they're allowed to or not), they did not make a false statement.

 

It was an email that was sent to both JAMS and the consumer.  To the LSC, this is the same as a communication to the consumer.  They might plan on dismissing the case, however, 3 days after they sent an email stating is was already dismissed, the case remains open.  As it sits now, that is an FDCPA violation.

 

 

Also, how could they file an MSJ when there's an order to arbitrate?  Even if they did try that, an MSJ must be served on the defendant, so they could not "sneak" it in. 

 

But it they did attempt to file an MSJ, I would think that would be an FDCPA violation.

 

I am only going by what I have heard other people deal with on these credit sites.  Many people have had MSJ or other motions filed in their cases without being properly served and found a suprise hearing that they either missed or were lucky to find and attend.  I have also see other people have a JDB file either a MSJ or some other motion to withdraw the standing MTC order without the consumer Defendant's consent or knowledge until after the fact.

 

Yes, it would be another FDCPA violation if they did this, but I believe it would be easier to just go after them for the violations I already mentioned and head off any potential other dealings with the court.

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@fisthardcheese

 

Now, I am simply making the argument that violating a court order could be considered an FDCPA violation.

 

 

Where's the case law to support that claim?   I'd just like to see some court rulings.

 

 

It was an email that was sent to both JAMS and the consumer.  To the LSC, this is the same as a communication to the consumer.  They might plan on dismissing the case, however, 3 days after they sent an email stating is was already dismissed, the case remains open.  As it sits now, that is an FDCPA violation.

 

 

Okay, the statement was also made to the OP.  But, just to clarify:  Are you claiming that if the statement had only been made to JAMS, it would be the same as saying it to the consumer? 

 

 

I am only going by what I have heard other people deal with on these credit sites.  Many people have had MSJ or other motions filed in their cases without being properly served and found a suprise hearing that they either missed or were lucky to find and attend.  I have also see other people have a JDB file either a MSJ or some other motion to withdraw the standing MTC order without the consumer Defendant's consent or knowledge until after the fact.

 

 

I'm not saying that an attempt at trickery doesn't occur.  Of course, it does.  What I am saying is that if the plaintiff follows the RCPs, they will serve the MSJ on the defendant.  If they do attempt to be sneaky, the defendant can have it overturned AND claim a violation of the FDCPA.

 

I'm all for arbitration, and I appreciate your knowledge and that you can help posters understand the process.  You're needed here!  However, when claims of violations are made, there must be rulings to support those claims.

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The latest on the case.

 

Sent email to MIdland asking how the case was dismissed. Never received a reply. Sent another email that included a copy to Jams moderator. Received one back today that stated:

 

Good morning,

Upon further review of the case file with the court, I found that the District Court case had ‘not’ been Dismissed.  I will be sending Ms. xxxxxx a Dismissal for signature. Sorry for my delayed response.

 

Thank you,

 

So not sure if their intention was to not dismiss but really don't trust them. Waiting for letter to dismiss and to see how it is written whether or not I should sign it.

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Me, personally, I wouldn't sign their dismissal agreement unless it includes them paying me a minimum of $250 to recoup my JAMS fee.

 

I would reply to their dismissal email with a counter offer of $1,000, removal of all CRA tradelines and dismissal with prejudice in exchange for withdrawing my arb claim.

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This is my email that was sent to Midland attorneys today:

 

Good evening,
 
I received or order in the mail today. I will agree and sign an Order for dismissal if he order includes the following:
 
  • Reimbursement in the amount of $1000.00 this includes fee paid for arbitration, postage fees, time off work for court appearances.
  • Removal of all CRA tradelines
  • Dismissed with prejudice

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The case was court ordered to Arbitration with JAMS. My fee was paid and collection attorney has not paid their fees. This was in April 2015. They sent a email to JAMS and myself 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 on June 12, 2015. The case was not and still not dismissed. A violation of FDCPA 15 U.S.C.Section 1692(e); Section 807 (A) False or Misleading Representation.
 
(2) The false representation of--
(A) the character, amount, or legal status of a debt.

 

They sent me a Dismissal to sign to have the case dismissed. I have not signed on June 22, 2015.

 

I sent a email to the collection attorney's with CC to Jams,

 

I agree to sign the dismissal (which was sent after I had notified the respondent that the case had not been dismissed as she had stated) with the following conditions:
 

  • Reimbursement in the amount of $1013.86  this includes fee paid to JAMS, postage fees, motion fees,time off work for court appearances
  • Removal of all CRA tradelines
  • Dismissal with prejudice

No response.

 

Then I received an email from JAMS on June 24, 2015 asking if the claimant would like to dismiss the arbitration. Of course I replied "No I do not wish to dismiss the arbitration.

 

On June 15th received an email from JAMS that stated:

 

Good Morning Parties:

 

Please be advised at this point in the arbitration process JAMS will not close our file unless Claimant requests or an order is received from the court. Therefore, JAMS is still requesting the $550 Case Management Fee from Respondent.

 

Thank You,

 

On June 17th received a envelope from collection attorney which contained a Motion to dismiss without prejudice, Order, request to waive Oral Argument, 20.00 filing fee and Proof of Service.

 

Request to waive oral argument:

Pursuant to MCR 2.119 (E)(3) hereby request that this court dispense with oral argument and rule on the pleadings submitted by the parties in order to facilitate administrative, economic, and judicial efficiency for all parties and the Court.

 

Motion to dismiss case with Prejudice:

Facts they have listed:

 

1. That on December 8, 2014, Plaintiff filed suit against Defendant for her default on a certain credit card entered into with Cititbank

2. That the Plaintiff has sent a Stipulated Order for dismissal without to defendant for her to sign.

3. That the defendant has failed to return said stipulated order for dismissal without prejudice.

4. The Plaintiff no longer wishes to pursue this matter at this time.

 

Any thoughts or inputs? I know I should file a motion in opposition to dismiss case.

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@grace0919

 

You did not and do not have a FDCPA claim against them.  I am not aware of any caselaw supporting that position.   They dismissed their complaint against you, as is their prerogative. Just take that as a win and be done with it. They are not going to pay you or give you a dismissal with prejudice.  I would not push this with Midland.  I know the "other board" thinks differently about this, but you decide what you want to do.

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@grace0919

 

What a timely find.  I am faced with a similar lawsuit by WWR on behalf of Midland, except the OC is Citibank.  I'm planning on adapting your MTC/MTD for my filing.  Thanks for all the work and postings that will help me in the process.  In the filing, you mention several Exhibits.  I'm wondering if it's possible to get redacted copies of the Exhibits posted?  I want to make sure I'm doing things right and following someone who has already had success seems like a good plan.

 

Thanks!

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Below is the advice of an attorney:

 

You should file some a motion with the court moving to dismiss the case WITH prejudice for intentional lack of prosecution.

You would attach their email to JAMS, and request sanctions in the form of your filing fees with JAMS.

The indication that Plaintiff does not intend to proceed with the arbitration, violates the order to go to Arbitration.

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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

 

 

@grace0919

 

You've done a great job and your thread will help others in Michigan. In that light, would you be so kind as to share your notification to plaintiff attached to your motion as Exhibit B? 

 

Did you first seek concurrence with your plaintiff before filing your motion? In Oakland county, we were required by the judge under MCR 2.119(D)(1) to ask the opposing party to stipulate before filing a motion, and include in the motion that we'd done so and it was rejected.

 

Thank you!

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