Against All Odds

Pre-Trial w/ Midland Funding NJ

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1.    Who is the named plaintiff in the suit?

 

Midland Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

Shall remain unnamed

3. How much are you being sued for?

 

Seven Five

4. Who is the original creditor?

 

I”ll leave this one out too

5. How do you know you are being sued?

 

Complaint

6. How were you served?

 

Mail

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?

 

None

9. What state and county do you live in?

 

NJ

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

 

Last alleged activity was in early 2011

11. What is the SOL on the debt?

6 in NJ (defendant), 4 in UT (OC)


12. What is the status of your case? Suit served? Motions filed

 

Plaintiff filed MSJ – they won. I motioned to vacate – I won. They motioned to reinstate MSJ – pending. Court date - pending

 

 

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?

 

They just filed suit

 

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

 

Responded

 

Please post what they are claiming.

 

Based on my recollection

 

                      i.        Plaintiff has a primary place of business in CA.

                     ii.         Defendant whose last 3 of the SS# is XXX is the one who opened the account ending in XXXX. This account is now in default. Last  payment  on the account was in 2011

                    iii.        Account went from OC to Intermediate to Plaintiff

 

Whereof, plaintiff demands the amount  of 7XXX.XX

 

 

 

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

Didn’t answer

16. What evidence did they send with the summons?

 

None

 

 An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

Affidavit was attached to MSJ, also, a transaction history was attached showing alleged transactions…no statements though

 

 

 

Current situation….trial is pending. Plaintiff was granted MSJ. I filed a MTR which vacated the MSJ and put the trial back on the calendar. MTR was unopposed because plaintiff filed opposition late.

 

Plaintiff then filed a Motion to vacate and reinstate. Their main argument is that my defense had been suppressed for failing to answer interrogatories. I again attacked the affidavit. Plaintiff’s motion is still pending and so is trial.

 

I subsequently filed my own Motion to Vacate the Suppression order as having being void based on plaintiff sending more than 5 questions. That argument does not seem to be airtight. Pretty sure attorney will be bringing this up to the court.

 

I looked my case online, and the order granting my MTR apparently reinstated my status. My status reads “reinstated’. Could I hold the court to their ‘reinstatement’?

 

Found out today that my OCs contact would have had the arbitration clause…which deprives both parties from bringing suit. So I am filing the arbitration demand today and will wait for the plaintiff to drop the suit. Contact states OC pays for all costs except my attorney fees and expert fees. 

 

Supposing that doesn’t happen, I wonder if plaintiff’s Motion to Vacate and Reinstate MSJ would be granted. If its not…would they have to produce a witness in court or would I have to subpoena the witness? 

 

My thought too is that worst case scenario, I could then do the MTC, which is  technically challenging jurisdiction. If somehow we manage to go through trial and I lost, I couldn’t bring up the arb clause later.

 

 

Anything different you might do?

 

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Read your rules for civil procedure, you may have to amend your answer. You would want to list priviate contractual arbitration is the correct forum as your number 1 affirmative defense. Then file the petition to arbitrate, motion to dismiss or stay case immediately after. You would need to do it quickly, hopefully before their motion is decided.

You may take the 1 st 5 of their discovery and answer them with "Objection, defendant has compelled priviate contractual arbitration. And discovery will be conducted in that forum."

Important thing is get it done ASAP.

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Read your rules for civil procedure, you may have to amend your answer. You would want to list priviate contractual arbitration is the correct forum as your number 1 affirmative defense. Then file the petition to arbitrate, motion to dismiss or stay case immediately after. You would need to do it quickly, hopefully before their motion is decided.

You may take the 1 st 5 of their discovery and answer them with "Objection, defendant has compelled priviate contractual arbitration. And discovery will be conducted in that forum."

Important thing is get it done ASAP.

 

@shellieh98. One thing that i found to be a problem is the number of days available to file a motion before trial....opposing party usually has 10 days to respond etc. I stand to be corrected here, but isn't a MTC private arb technically a jurisdictional challenge? For jurisdictional challenges, you are allowed it raise it in the answer or by motion and it shall be heard before trial unless the court determines that it will hear the motion at trial. 

 

I sent out the Demand for Arbitration before JAMS to Plaintiff and asked the court to adjourn trial date to allow the plaintiff to voluntarily respond absent of which I will be filing the MTC. The MTC will include the notation that the demand for arbitration had been made and plaintiff has refused to comply.The court will not take in any motion at this point without an adjournment to allow for opposing party to be served and respond. 

 

I think it will be a long shot for them to have their MSJ reinstated. I attacked their affidavit both in my MTR and in my opposition to their MTV. 

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@Against All Odds

 

When you answered the complaint, did you include arbitration as an affirmative defense?

 

For what reason was the MSJ vacated?

 

 

@BV80,

 

At the time i filed my answer, I was not aware that there may have been an arc clause in the contract. As I was saying in the post above - I believe that a MTC is technically a jurisdictional challenge, which could be raised in the answer or by motion, which would have to heard before trial or if the court decides, at trial. 

 

Defeating a MSJ usually requires that you show that there was  at least 1 disputed fact...i had attacked their attached affidavit and evidence. The court did not give a findings of fact and conclusions of law, however....my MTR went in unopposed as attorney filed their opposition late and it was rejected. I attacked their evidence again in my opposition to their motion to reinstate. 

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They stay the case in most instances, some states have rules that dismiss.  If they stay the case, you will either need to initiate arb, or make sure they dismiss the case before the stay is up, or they can take it back to court to litigate.  If the court dismisses, the plaintiff will need to initiate arb as their recourse to collect, or let it go.

They can deny the motion if they feel litigation has been taken to far.

Some courts have ruled in favor of the compel motion the day before trial, because there was no engagement in discovery.  It isn't going to hurt your case, I don't know if the court will feel since you did oppose the first MSJ if that would have been the time to bring up the arb agreement, but you can say the plaintiff did not provide the governing agreement that has the arbitration clause.  You have disputed this alleged debt, and were not made aware of your right to arbitrate until you obtained a copy of the card agreement from the OC's website.  (they are required by law to post their agreements online, so you should not get any guff from the plaintiff about it not being a verified document)  I would even put that in my motion that you were not made aware of your right for arbitration, and that it is the proper forum because no agreement was provided.

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They use the terms; newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time. As most of us already probably figured out, plaintiff's rarely attach this evidence in their pleadings thus it could be reasonably argued as such. 

 

Clerks office at this point would refuse any filings, hence in my adjournment request i did indicate that it was due to newly acquired evidence which by due diligence could not have been discovered in time. 

 

Here is the standard they use to test if a party implicitly waived its right to arbitrate: (1) the delay in making the arbitration request; (2) the filing of motions and their outcomes; (3) whether the delay in seeking arbitration was part of the party’s litigation strategy; (4) the extent of discovery conducted; (5) whether the party raised the arbitration issue in its pleadings or provided other notice of its intent to seek arbitration; (6) the proximity of the date on which the party sought arbitration to the date of trial; and (7) the resulting prejudice suffered by the other party, if any.

 

So @shellieh98 you were absolutely right about amending the answer

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@Against All Odds

 

Do you know an attorney to whom you could speak and ask if it's too late to amend your answer and/or compel arbitration?   If not, then you could try amending your answer and motioning to compel arbitration but be prepared to offer case law in your favor.

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@BV80 I gathered from this blog that Philip Stern is not only one of the best lawyers in this state, but in the whole country. He does have a lot of resources on his page. I just got the advice about filing an amended answer today from @shellieh98. Last time I went to the courthouse to file papers, they indicated that they may not be accepted without an adjournment being granted. Last time I checked case status online, said papers hadn't shown yet. I subsequently filed my adjournment request.

 

Yes...researching case law as well.

 

Any thoughts on pros and cons of filing several reliefs in the same motion or would you file a separate motion? My thoughts are that a consolidated motion makes it easier for the court to issue a blanket denial whereas separate motions would have them rule on each individually.  

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@Against All Odds

 

That's a question for an attorney, but if you can't speak to one, just read your rules very carefully.  If no mention is made of more than one relief in a motion, then it could possibly be allowed.  Check your the forms offered by your court.  If they have motion forms, see if they allow for more than one relief.

 

Whether I would do it might depend upon the length of such a motion or how confusing it might become.

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Update: My request to adjourn was not granted. Plaintiff's Motion to reinstate MSJ has not been ruled on either. Looks like we're headed to trial. 

 

Again...they don't allow motions to be filed when the trial date is approaching, hence I am unable to file my MTC either. Am guessing we'll have to argue the motion orally - my guess is this will have have to be ruled upon before trial as I am challenging that court was the proper forum.

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Court Update:

 

I get to court and they take attendance...attorney for plaintiff isn't present. Automatic dismissal you'd think? Nope...apparently, nothing happens for another hour when until they do the second call. Oh, and by the way...you are here for a motions hearing, not for a trial as the paperwork we sent you said (read, convenient for plaintiff because they don't have to produce a witness). Attorney for plaintiff makes it just in time before the second call an hour later.

 

They send us for mediation to see if we can come up with a settlement....I decline. They send us back to the court room.

 

Plaintiff had filed a MSJ which was granted, I filed a motion to vacate the MSJ which was granted and then they filed a motion to vacate court's reversal of the MSJ and reinstate the MSJ <<< this is what they were hearing.

 

Being that it was plaintiff’s motion, they go first. The attorney argues that my motion should not have been granted because there was a suppression order in place. I argue that the attorney lied in his certification for the suppression order when he said there was no outstanding discovery due from them (I specifically requested the contract when they first obtained a default judgment in 2014 – subsequently vacated). Rules of court require the certification that other party is in default AND the movant isn’t in default. I think it’s prudent to say that a judgment that was not in compliance with court rules or that was based on fraud is void. But judge reinstates the suppression order.

 

Then judge asks my basis of opposition is. Judge, I gave my basis in my motion to vacate the MSJ and also in opposition to plaintiff’s motion to reinstate MSJ. While we are at that, I have another motion that I cannot file because your clerks won’t accept it for filing because we’re too close to the filing deadline (ironically, my initial response to their MSJ questioned the timeliness of their MSJ and their response was that the date rules do not apply to the Special Civil Part).

 

I called out the affidavit….affiant says the records showing ownership were not in their possession since they were not transferred. Then how can they prove chain of title – and subsequently, standing to sue. Their MSJ as originally submitted failed to include this information and they only produced 1 of the 2 chains in their opposition to my motion to vacate. Judge makes a judicial determination that they do not have to prove ownership. Allegedly, attorney showed up with the 2nd chain of transfer.

 

I called out the “Transaction History” ….is this ever a replacement for a periodic statement??? I called out its authenticity because 2nd owner apparently had 3rd owners info in the footer at the page. I asked, so when 2nd owner had the account 13 years ago, they need they’d sell it to you JDB, so they put your name as the custodian of records in their footer??? And if JDB put the info in the footer themselves, it means they had the ability to manipulate the data themselves. Authenticity is in question here….no witness for me to cross examine.

 

Then judge says but they have your phone number in there. Only after I pointed it out did he realize that even my alleged phone number was fictitious. So judge, if the phone number is fictitious…what are the odds the alleged transactions are either…after all, I argued that the math didn’t add up. The fees appeared to be outrageous, calling for me to again ask for the contract or statement that would have the finance rate….judge still not convinced.

 

Judge says I never disputed the “Transaction History”….first of all…would you please stop referring to a transaction history as a periodic statement. Second, what proof does the plaintiff have that these statements were even mailed to me. Remember, I had the default judgment from 2014 vacated because they sent all documentation regarding the suit to the wrong address. If you sent the suit to the wrong address…how can you prove that I ever got the statements to be able to dispute them.

 

I then bring up the arbitration clause. Attorney argues that I never raised it in my answer. Well, I would have raised it in my answer if you had provided the contract like I asked you to back in 2014. So yes, thank you to @shellieh98 for having brought up amending my answer. But no, judge could not be interested in me amending my answer. All he was here for was to hear the plaintiff’s motion.

 

Despite, all those disputed facts, he reinstated plaintiff’s MSJ pro nun tunc or some crap like that…basically back to the original date it was granted. I also don’t know that a judge has the discretion to ignore a jurisdictional challenge.

 

Thoughts anyone?

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File for an appeal. That's all that's left. You argued your points do they should be part of the record. Let the Supreme Court decide it. :-)

 

Am considering my options here. I could first file a Motion for Reconsideration within 10 days ($25 filing fee and goes to the same judge). I could file a Motion for Relief from Judgement within 1 year ($25 fling fee and also goes to the same judge if still on the bench). The ultimate remedy is filing an appeal with the Appellate Division - that's the next higher court. After the Appellate Division is the Supreme Court...but they would have to accept your request to even hear the case, which is slim to none. The Appellate Division's findings could as well decide your fate. But I don't want to be paying $300 filing fee plus transrcipt costs for that just yet.

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There is a June 2015 case, "Meeler v. LVNV Funding," from the E.D, of Ark, which reminds me of your case.  Meeler claims LVNV never gave him a copy of the contract and therefore, deprived him of his contractural right to arbitrate.  He sued LVNV in federal district court for FDCPA violations.  The case is ongoing, but the judge denied LVNV's Motion to Dismiss for failure to state a claim.  You can read the case if you go on www.pacer.gov  

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@Against All Odds

 

You may want to ask :Philip Stern for advice.  Sounds like the judge was just all plaintiff.  See my post below. You may have a FDCPA claim that a lawyer like Stern might take on contingency.

 

 

There is a June 2015 case, "Meeler v. LVNV Funding," from the E.D, of Ark, which reminds me of your case.  Meeler claims LVNV never gave me a copy of the contract and therefore, deprived him of his contractural right to arbitrate.  He sued LVNV in federal district court for FDCPA violations.  The case is ongoing, but the judge denied LVNV's Motion to Dismiss for failure to state a claim.  You can read the case if you go on www.pacer.gov  

 

Thanks @debtzapper . I was going to give Stern a call today. Somehow I didn't get around to him. I first learned of him on here and he's got some really good stuff. He's actually replied to my email before. Given his word of mouth recommendation here, I can see myself possibly working out a payment plan on an appeal in the event that no FDCPA violations were apparent. One thing that I haven't seen much of on his site is arbitration.

 

My experience in legal land has shown me that they rarely want to hear case law from another jurisdiction. This judge actually told me my case law was irrelevant...and it was state case law. My thoughts are they would probably be more accepting of case law from their own federal circuit. We're in the 3rd Circuit. But am definitely looking up Meeler. An LVNV matter actually provided case law as to what was acceptible for summary judgments.

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