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Going to battle with Midland in AZ


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Here is one of the last posts that shows the conclusion in the case. 

 

If I remember correctly, B U R S E Y had motioned for the courts to hear the case again and scheduled a pretrial.   Before that it had been stalled in JAMS because Midland wasnt paying the 2nd round of JAMS fees.  I think they owed like 2k.   I filed an Opposition stating the case was in JAMS and Midland wasnt paying the fees.  I also asked for sanctions against B U R S E Y  for lying to get the case out of JAMS.  I was shocked when the judge granted B U R S E Y the MTC pretrial. 

 

Then i was even more shocked when MIDLAND sent me a settlement check a couple of days before pre trial... They just wanted to be done with the case and paid me to go away. 

 

Heres the link: http://www.creditinfocenter.com/community/topic/320344-midlands-attorney-sent-me-a-settlement-advice-needed/?hl=cwrose79#entry1249012

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@Harry Seaward, thank you so much. I was up pretty late last night and wasn't thinking clearly, lol. Those links were very helpful. I have a thread at the debtorboards about my case with Midland. There is a wealth of information between these two forums! <3

I had a court date set with them in early January and a week before trial, they filled a Motion for Continuance. I filed for a MTC arbitration the same day my court date was supposed to be and CMRRR them a copy. So fast forward to this week. My court date is two weeks away and I received a copy of a Motion to deny my MTC arb. They claim they never received a copy of the motion I filed and that they barely just got it on March 2nd, even though I have proof they received it Jan 8th, lol.

Anyhow, I'm searching for a sample or template to reply to their newest Motion as well as it was suggested I file a Motion for Sanctions against them because of their lies. I've been searching all day and either I'm still running on fumes from staying up so late last night or I'm just not searching with the right keywords, but I'm not finding any samples of either of those things to use. If anyone has any suggestions or links, I'd be forever grateful. I'm going to bed early tonight and will start searching again tomorrow with new eyes. Oh, and my state is Texas.

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@cwrose79

Here is one of the last posts that shows the conclusion in the case. 

 

If I remember correctly, B U R S E Y had motioned for the courts to hear the case again and scheduled a pretrial.   Before that it had been stalled in JAMS because Midland wasnt paying the 2nd round of JAMS fees.  I think they owed like 2k.   I filed an Opposition stating the case was in JAMS and Midland wasnt paying the fees.  I also asked for sanctions against B U R S E Y  for lying to get the case out of JAMS.  I was shocked when the judge granted B U R S E Y the MTC pretrial. 

 

Then i was even more shocked when MIDLAND sent me a settlement check a couple of days before pre trial... They just wanted to be done with the case and paid me to go away. 

 

Heres the link: http://www.creditinfocenter.com/community/topic/320344-midlands-attorney-sent-me-a-settlement-advice-needed/?hl=cwrose79#entry1249012

Thanks for posting this!

You are a trailblazer and the only confirmed JDB arbitration case I know of in AZ.  It's good to know Midland will balk at this strategy.

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Im going to try the arbitration route going to court house on monday to grab my forms and see if there is any more info or evidence they submitted with the lawsuit just wish i had a copy of cc agreement to see if arbitration is even allowed on this case

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@craneguy

I just looked at a Chase agreement I have from April 2002 and it has JAMS and AAA.

 

File the Motion to Compel based on "information and belief" that that JAMS is a part of the credit card agreement that governs your account.  If Midland wants to claim arbitration is not a part of the agreement, let them cough up the agreement.

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@craneguy

I just looked at a Chase agreement I have from April 2002 and it has JAMS and AAA.

 

File the Motion to Compel based on "information and belief" that that JAMS is a part of the credit card agreement that governs your account.  If Midland wants to claim arbitration is not a part of the agreement, let them cough up the agreement.

 

Not only do they have to cough up the "correct" agreement if they want to deny yours is the correct one, I am pretty sure if you have a notarized affidavit that says that based on information and belief this is the agreement that controled the account in question, the JDB would need a witness from the OC to testify that their contract is the correct one and that you were sent this contract during the life of the account.  It would be a snowy day in hell if the JDB pulls this off.

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Since the topic of MTC Arbitration here parallels an issue I am having... and potentially the OPs issue... let me pose this question:

Suppose the Complaint does not allege in any way when the alleged account was opened/created? In my case, no agreement attached and no way to determine what generic agreement online would apply without a date of agreement even vaguely referenced.

Can one move to compel arbitration if one does not know of a particular set of terms and conditions that might apply to their allegations? Could one rightfully wait until disclosure/discovery to discover the agreement they are claiming and the dates in question and THEN do an MTC?

It seems only rational that you can't compel something you aren't sure is provided in an alleged agreement where you don't have a copy.

Or is "Defendant surmises that as many credit card agreements contain a provision for arbitration. Defendant lacks sufficient knowledge of any such agreement purported by Plaintiff to ascertain if arbitration is an available remedy..." sufficient, as (I believe) Harry suggested?

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Since the topic of MTC Arbitration here parallels an issue I am having... and potentially the OPs issue... let me pose this question:

Suppose the Complaint does not allege in any way when the alleged account was opened/created? In my case, no agreement attached and no way to determine what generic agreement online would apply without a date of agreement even vaguely referenced.

Can one move to compel arbitration if one does not know of a particular set of terms and conditions that might apply to their allegations? Could one rightfully wait until disclosure/discovery to discover the agreement they are claiming and the dates in question and THEN do an MTC?

It seems only rational that you can't compel something you aren't sure is provided in an alleged agreement where you don't have a copy.

Or is "Defendant surmises that as many credit card agreements contain a provision for arbitration. Defendant lacks sufficient knowledge of any such agreement purported by Plaintiff to ascertain if arbitration is an available remedy..." sufficient, as (I believe) Harry suggested?

 

All banks are required to register their card agreements with the CFPB.  If someone sues me and says I allegedly had a Chase Bank card, I would go to the CFPB website and get a copy of their card agreement. 

 

http://www.consumerfinance.gov/credit-cards/agreements/

 

I would choose the agreement closest to the time they alleged I defaulted on the account they filed suit on. I would then use this agreement to compel arbitration based upon my "information and belief" that this is the correct agreement on which suit was filed against me.  My information and belief would be based upon the information provided in their complaint, any exhibits in their suit and the information from the CFPB website.  I am not acknoledging that this is my account.  I am acknowledging that a suit was filed against me and from what I can tell, this is the underlying agreement the suit is based upon.

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If your plan is to take this into arbitration then you're going to have to concede this is your debt sooner or later. If you wait the court could find you waived your right to arbitrate. 

 

Again,  file your answer and deny the court has jurisdiction and file with your answer a motion to compel arbitration in accordance with Arizona Revised Statutes 12-1502.  See Post #46

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Do i put the motion for arbitration in the additional comments box or is that a seperate form.

The motion to compel is a separate filing. But there is a problem. Earlier I said to file the motion to compel with your answer and in accordance with ARS §12-1502, but I read this statute closer and the problem is that it requires 1.) the party filing the motion to show the agreement and, 2.) the other party's refusal to arbitrate. Right now you have neither of these things. I'm now thinking you should send Midland's lawyers a letter via certified mail notifying them that you want to arbitrate, and then attach a copy of that letter to your answer. When they ignore your letter, you then have one of the two required components for a motion to compel. When they produce the agreement, you'll then have both components and at that point is when you would file the motion to compel.  (I.e. file your answer now and the motion to compel later.)

 

Should i attach a copy of cc agreement with my answer to. And am i required to send copies of my answer to the lawyer too.

Unless you have a copy of the agreement that you received from the OC when you opened your account, don't attach any agreements.

 

Something like this in the "denies jurisdiction" part of your answer should do: "Plaintiff has not produced a contract upon which it believes it's lawsuit is based.  However, upon information and belief, Defendant asserts the contract governing the debt in question provides that any dispute may be resolved via private, contractual arbitration.  Defendant has notified Plaintiff that he elects said arbitration to resolve any and all claims Plaintiff has alleged against him and as such, this court has no jurisdiction over the subject matter of this lawsuit.  As of the filing of this pleading, Plaintiff has not responded to Defendant's notice of arbitration election."

 

So at that point they should be forced to produce a contract because they shouldn't be allowed to continue the lawsuit without it.

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 I'm now thinking you should send Midland's lawyers a letter via certified mail notifying them that you want to arbitrate, and then attach a copy of that letter to your answer. When they ignore your letter, you then have one of the two required components for a motion to compel. 

 

 

 

Perhaps an arbitration expert can confirm, but I believe you then have grounds to sue the plaintiff if they continue to litigate in court.

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I believe the argument involved threatening or taking legal action that they are prevented from taking. I have no experience here, but most arb stories I read involve some form of using continued litigation as a counter claim.

 

This is putting the cart before the horse - the main thing is to get the OP out of court.

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Sue for what?

The agreement almost always says that once arbitration is elected, neither party has the right to litigate in a court of law.  If it's a JDB, you probably have a claim for them trying to take action they are not legally entitled to. 

 

If it's an OC, it's probably no more than breach of contract. I suppose it could be used to offset some or all of the plaintiff's claims in some way. 

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