Panove4

Midland Funding in AZ

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I've also been sued in AZ by Midland Funding for a personal line of credit for health care services. They filed a Notice of Service of Disclosure Statement on July 22th but I didn't do anything with it upon receipt as I wasn't sure what to do. Then I had a mediation hearing today but did not enter into any agreement because I recalled that there was a CFPB ruling against them about 2 years ago and I didn't know the details of it. I just found it here and wanting to know if there's any recommendation as to how I should proceed from this point. They've also filed for a Summary Judgement which I have until August 10th to respond to. Furthermore, I'd like to know which category of the SOL this line of credit falls under in AZ. Is it an open end account subject to 3 years SOL or is it considered a credit card subject to 6 years SOL.
 

When you opened the credit account were you 1.) given a credit card, 2.) given a loan for a fixed amount that was required to be repaid within a specified amount of time,  or 3.) given an account where you would make charges up to a specified limit and then required to make monthly payments to pay down the balance?
1. ) I was given a credit card that could only be used for medical services with participating service providers.
2.  ) I was given a revolving line of credit up to $2,500
3. )  I was required to make monthly payments after a "no interest- no payment" period. 

 

How to upload the complaint and motion for summary judgement?

.

#1 will most likely be viewed as a credit card subject to a 6 year SOL.

 

#2 will most likely be treated as a written agreement, also subject to a 6-year SOL. 

 

#3 could be an "open" account subject to a 3-year SOL but could also be a written agreement depending on the details of the contract and how the complaint is plead. 

 

If you can, please post the complaint and motion for summary judgment with your personal info redacted.  That will help us know how Midland intends to prosecute this lawsuit.

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@Panove4

Edit your first post and copy-n-paste the questions from this thread and include your answers:

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

When you opened the credit account were you 1.) given a credit card, 2.) given a loan for a fixed amount that was required to be repaid within a specified amount of time,  or 3.) given an account where you would make charges up to a specified limit and then required to make monthly payments to pay down the balance? 

 

#1 will most likely be viewed as a credit card subject to a 6 year SOL.

 

#2 will most likely be treated as a written agreement, also subject to a 6-year SOL. 

 

#3 could be an "open" account subject to a 3-year SOL but could also be a written agreement depending on the details of the contract and how the complaint is plead. 

 

If you can, please post the complaint and motion for summary judgment with your personal info redacted.  That will help us know how Midland intends to prosecute this lawsuit.

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.  That will help us know how Midland intends to prosecute this lawsuit.

 

The fact that the OP said they filed for a Summary Judgment to which he/she has until Aug 10th to respond to may also shed some light on midlands intentions, in my opinion.

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The fact that the OP said they filed for a Summary Judgment to which he/she has until Aug 10th to respond to may also shed some light on midlands intentions, in my opinion.

I meant if they are going at this as an "open" account versus "written" account.  They can plead either in their complaint.  They can also plead "account stated" and/or "breach of contract".  Just knowing Midland filed for Summary Judgment doesn't tell us anything about these things, and it's important to know because each has different ways to defend.

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  Just knowing Midland filed for Summary Judgment doesn't tell us anything about these things, and it's important to know because each has different ways to defend.

 

No it doesn't, but it does tell you that counting what's left of today; the OP has only 6 days to reply to the MSJ or there will be nothing to defend. I just thought it might be worth mentioning.

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@Panove4

1. ) I was given a credit card that could only be used for medical services with participating service providers.
2.  ) I was given a revolving line of credit up to $2,500
3. )  I was required to make monthly payments after a "no interest- no payment" period. 

In this case, this is probably a "breach of contract" lawsuit on a "credit card" with an AZ 6-year SOL.
 

How to upload the complaint and motion for summary judgement?

When you post, there is a button for "More Reply Options".  Click that and then below the posting window will be some file options.  Click "Browse" to find the file on your computer to upload, then "Attach This File".  After that a blue line will appear showing a thumbnail of the file on the left and the words "Add to Post" on the right.  Click "Add to Post" and it will include the file you selected in your posting.  You do that for as many files as you want to upload.

 

 

 

Because time is of the essence here, you have to get going on a response to their MSJ.  Since your line of credit was capped at $2,500, I'm going to assume the debt is less than $10,000 and you have been sued in Justice Court.

 

These are the Court rules for Justice Court.  You eventually need to be familiar enough with them to be able to at least know what's generally in each section.

https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&originationContext=documenttoc&transitionType=Default&contextData=%28sc.Default%29

 

For right now, you need to read this section and understand everything in it before you start on your objection to their MSJ.

https://govt.westlaw.com/azrules/Document/N6F4945F00DDE11E2B1BB87D5DA3B811F?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

The key points to concentrate on are these:

 

 

Your response must be filed within thirty (30) days from the date this motion was served. Your response to the motion must include:
“(1) A statement of facts, with each of the facts stated separately in numbered paragraphs or numbered sentences. A statement of facts must be supported by affidavits, exhibits, or other material that establishes each fact by admissible evidence. It is not enough for you to simply deny facts. You must present evidence that shows a genuine dispute of the facts.
“(2) A memorandum of law that summarizes the issues, provides legal authority in support of your position, and describes why the judge should deny the motion.”

 

...

 

The court will set a time for hearing if a party makes a timely request for a hearing;

 

...

 

e. Affidavits.

 

It sounds like you don't deny opening and using the account (please correct me if I'm wrong!).  If that's the case, your best shot here is probably going to be the CFPB consent order linked at the bottom of the article you linked to earlier.  Read through it and get a pretty good understanding of what's being discussed.  (The MSJ they filed may be deficient, but without seeing it, I'm going to take the most conservative approach and assume it's not.)  The problem for you at this stage is your affirmative defenses are going to be limited to whatever you asserted in your answer.  If you can also post your answer to the lawsuit, we can tell you if your assertions are sufficient or if you should ask for leave of the court to file an amended answer.

 

Next, in your Objection, I would definitely ask the court to set a hearing.  Make it in the first sentence or two.

 

Last, your only opportunity to testify at this stage is going to be via affidavit.  If there are any facts you want the court to know about your situation that you believe put you at a disadvantage, you need to get that stated in an affidavit.  Affidavits must me notarized to be valid.

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I just skimmed the CFPB order and these things jumped out at me:

 

 

28. As described above, Respondent's failure to adequately train and monitor all Enrolled Providers, and Respondent's failure to ensure that material disseminated by the Enrolled Providers was capable of counteracting erroneous information given to consumers, caused substantial injury to consumers that was not reasonably avoidable, and was not outweighed by countervailing benefits to consumers or to competition. These practices therefore violated section 1031(c )(1) of the CFPA's prohibition on unfair acts or practices. 12 U.S.C. §§ 5531, 5536(a)(1)(b ). By virtue of these facts, Respondent engaged in these unfair acts or practices.

 

29. As described above, certain Enrolled Providers, in offering Respondent's CareCredit Card to consumers, (i) told consumers that the CareCredit Card's Promotional Option was a "no interest" Credit card rather than a deferred-interest card, and (ii) failed to inform consumers selecting the Promotional Option that interest would accrue at a rate of 26.99 percent from the date of  purchase if the balance was not paid before the promotional period ended. These were material misrepresentations and omissions of fact, likely to mislead consumers, and constituted deceptive and misleading statements and practices in violation of section 1031 (a)(1) of the CFPA's prohibition on deceptive acts or practices. 12 U.S.C. §§ 5531, 5536(a)(1)(b ). Respondent's operation of the Provider Channel resulted in these deceptive and misleading acts and practices.

 

47. Respondent shall use its best efforts to resolve consumer complaints within 30 days of the date the consumer contacts Respondent, and use its best efforts issue refunds, credits, and charge backs where appropriate within 45 days of receiving a complaint.

 

49. While a balance is being carried, Respondent will not impose fees or interest on the disputed balance, or send an account to collection as a result of a consumer's failure to pay a disputed balance while a complaint is pending. Respondent may require any complaint to be filed within 60 months of the date of the consumer's transaction, but shall not otherwise impose any time limits for the filing of complaints.

 

50. When a consumer claims that an Enrolled Provider omitted or misrepresented the CareCredit Card's terms and conditions in connection with the opening of an account in the Provider Channel, Respondent shall require the Enrolled Provider to forward the consumer's signature page (see Attachment .A-3) and a signed sales receipt. If the Enrolled Provider docs not forward these materials to Respondent, Respondent shall close the account, rescind the transaction, and charge back any amount incurred on the account. If the Enrolled Provider forwards a signature page (see Attachment A-3) but no sales receipt, Respondent shall refund any disputed amount charged to the account.

 

 

After reading this, in accordance with #50, I think I would send a certified letter to GECRB telling them you believe the Provider omitted or misrepresented the CareCredit terms and conditions and dispute the entire amount charged to the account.  I would attach a copy of that letter you send and the CFPB order to your Opposition for Summary Judgment and also file a motion to stay the litigation proceedings for a minimum of 60 days pending the outcome of your dispute with GECRB.

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Was your account with CareCredit? Did you take advantage of the CFPB settlement when offered? When did you default?

My account was with GE Money Bank Care Credit and I don't recall even knowing about the CFPB settlement. It was opened in 2008 and defaulted in 2010.

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I just skimmed the CFPB order and these things jumped out at me:

 

 

28. As described above, Respondent's failure to adequately train and monitor all Enrolled Providers, and Respondent's failure to ensure that material disseminated by the Enrolled Providers was capable of counteracting erroneous information given to consumers, caused substantial injury to consumers that was not reasonably avoidable, and was not outweighed by countervailing benefits to consumers or to competition. These practices therefore violated section 1031(c )(1) of the CFPA's prohibition on unfair acts or practices. 12 U.S.C. §§ 5531, 5536(a)(1)(b ). By virtue of these facts, Respondent engaged in these unfair acts or practices.

 

29. As described above, certain Enrolled Providers, in offering Respondent's CareCredit Card to consumers, (i) told consumers that the CareCredit Card's Promotional Option was a "no interest" Credit card rather than a deferred-interest card, and (ii) failed to inform consumers selecting the Promotional Option that interest would accrue at a rate of 26.99 percent from the date of  purchase if the balance was not paid before the promotional period ended. These were material misrepresentations and omissions of fact, likely to mislead consumers, and constituted deceptive and misleading statements and practices in violation of section 1031 (a)(1) of the CFPA's prohibition on deceptive acts or practices. 12 U.S.C. §§ 5531, 5536(a)(1)(b ). Respondent's operation of the Provider Channel resulted in these deceptive and misleading acts and practices.

 

47. Respondent shall use its best efforts to resolve consumer complaints within 30 days of the date the consumer contacts Respondent, and use its best efforts issue refunds, credits, and charge backs where appropriate within 45 days of receiving a complaint.

 

49. While a balance is being carried, Respondent will not impose fees or interest on the disputed balance, or send an account to collection as a result of a consumer's failure to pay a disputed balance while a complaint is pending. Respondent may require any complaint to be filed within 60 months of the date of the consumer's transaction, but shall not otherwise impose any time limits for the filing of complaints.

 

50. When a consumer claims that an Enrolled Provider omitted or misrepresented the CareCredit Card's terms and conditions in connection with the opening of an account in the Provider Channel, Respondent shall require the Enrolled Provider to forward the consumer's signature page (see Attachment .A-3) and a signed sales receipt. If the Enrolled Provider docs not forward these materials to Respondent, Respondent shall close the account, rescind the transaction, and charge back any amount incurred on the account. If the Enrolled Provider forwards a signature page (see Attachment A-3) but no sales receipt, Respondent shall refund any disputed amount charged to the account.

 

 

After reading this, in accordance with #50, I think I would send a certified letter to GECRB telling them you believe the Provider omitted or misrepresented the CareCredit terms and conditions and dispute the entire amount charged to the account.  I would attach a copy of that letter you send and the CFPB order to your Opposition for Summary Judgment and also file a motion to stay the litigation proceedings for a minimum of 60 days pending the outcome of your dispute with GECRB.

Send to GECRB, not to Midland, the collection agency who now has the account?

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@Panove4

In this case, this is probably a "breach of contract" lawsuit on a "credit card" with an AZ 6-year SOL.

 

When you post, there is a button for "More Reply Options".  Click that and then below the posting window will be some file options.  Click "Browse" to find the file on your computer to upload, then "Attach This File".  After that a blue line will appear showing a thumbnail of the file on the left and the words "Add to Post" on the right.  Click "Add to Post" and it will include the file you selected in your posting.  You do that for as many files as you want to upload.

 

 

 

Because time is of the essence here, you have to get going on a response to their MSJ.  Since your line of credit was capped at $2,500, I'm going to assume the debt is less than $10,000 and you have been sued in Justice Court.

 

These are the Court rules for Justice Court.  You eventually need to be familiar enough with them to be able to at least know what's generally in each section.

https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&originationContext=documenttoc&transitionType=Default&contextData=%28sc.Default%29

 

For right now, you need to read this section and understand everything in it before you start on your objection to their MSJ.

https://govt.westlaw.com/azrules/Document/N6F4945F00DDE11E2B1BB87D5DA3B811F?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

The key points to concentrate on are these:

 

 

It sounds like you don't deny opening and using the account (please correct me if I'm wrong!).  If that's the case, your best shot here is probably going to be the CFPB consent order linked at the bottom of the article you linked to earlier.  Read through it and get a pretty good understanding of what's being discussed.  (The MSJ they filed may be deficient, but without seeing it, I'm going to take the most conservative approach and assume it's not.)  The problem for you at this stage is your affirmative defenses are going to be limited to whatever you asserted in your answer.  If you can also post your answer to the lawsuit, we can tell you if your assertions are sufficient or if you should ask for leave of the court to file an amended answer.

 

Next, in your Objection, I would definitely ask the court to set a hearing.  Make it in the first sentence or two.

 

Last, your only opportunity to testify at this stage is going to be via affidavit.  If there are any facts you want the court to know about your situation that you believe put you at a disadvantage, you need to get that stated in an affidavit.  Affidavits must me notarized to be valid.

Answer - Midland Funding.pdf

Complaint & MSJ Midland Funding.pdf

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No it doesn't, but it does tell you that counting what's left of today; the OP has only 6 days to reply to the MSJ or there will be nothing to defend. I just thought it might be worth mentioning.

I calculated the days incorrectly from one of the many documents I received. The answer date for the MSJ is August 22th. Is there anything I should be doing in the interim?

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Send to GECRB, not to Midland, the collection agency who now has the account?

Yeah this is a tricky one and you make a good point. GECRB will say they don't own the debt any more and Midland will say they aren't subject to the CFPB order and can't issue a credit to your original GECRB account. Although, because Midland purchased all rights and responsibilities when they bought the debt,  your dispute may be proper with Midland.

 

Either way, it seems like an open, unsettled dispute should be sufficient to ward off summary judgment.

 

Maybe someone else has some insight on this question. 

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@Panove4

 

Check your bank records to make sure.  Don't assume it's true just because it's reflected on the billing statements.   We can't always verify charges we've made on an account, but we can verify our payments by getting copies of our bank statements.   You need to make sure that you made a payment on that date.  If you did, make sure that the amount reflected on the billing statement matches the amount paid out of your account.

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Send to GECRB, not to Midland, the collection agency who now has the account?

 

I didn't see GECRB anywhere in the docs, but I assume  it's part of GE, which is irrelevant anyway as you would only be sending things to your opponent (midland) and or filing things in your court.

 

You are not being sued by GECRB.

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I calculated the days incorrectly from one of the many documents I received. The answer date for the MSJ is August 22th. Is there anything I should be doing in the interim?

 

I'm glad to hear it. It's very important to learn how to beat this MSJ as a priority. It's the most important document you posted but unfortunately the only one I can't get to open for some reason.

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I didn't see GECRB anywhere in the docs, but I assume  it's part of GE, which is irrelevant anyway as you would only be sending things to your opponent (midland) and or filing things in your court.

 

You are not being sued by GECRB.

GECRB is directly subject to the CFPB order; Midland is not.  Do you have a response for when Midland says they aren't subject to that order?  "Midland steps into the shoes of GECRB" is a the best I can come up with, and is hopefully good enough to get a reversal on appeal, but I'd like to offer something a little more concrete.

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My account was with GE Money Bank Care Credit and I don't recall even knowing about the CFPB settlement. It was opened in 2008 and defaulted in 2010.

This is a problem for using the CFPB order:

 

14. From 2009 through the Effective Date, Respondent provided two types of financing options for the CareCredit Card, which Respondent described in marketing materials as:

a. "No Interest if Paid in Full Within 6, 12, 18, or 24 months" (the Promotional Option); and

b. "14.9 percent APR and Fixed Monthly Payments Required Until Paid in Full" on qualifying purchases made with the CareCredit Card (the Fixed Payment Option).

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GECRB is directly subject to the CFPB order; Midland is not.  Do you have a response for when Midland says they aren't subject to that order?  "Midland steps into the shoes of GECRB" is a the best I can come up with,

 

OK, I'm still looking into it ( I mainly wanted to see the MSJ but can't open it). If midland steps into the shoes of GECRB then they are equally subject to the CFPB order as you say  here is one. It could also be said that if midland knows there is a CFPB order attached to stale accounts they are trying to profit from then they are using the court system with unclean hands (of course that court operates  with unclean hands as well in my opinion).

and is hopefully good enough to get a reversal on appeal, but I'd like to offer something a little more concrete.

I think both of these can be added to a much larger amount of opposition that needs to be created. Also, I was under the assumption all of this is going into the opposition to the msj (not that it may not find its way into an appeal as well). 

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The summons & complaint, answer, and MSJ are attached. Thank you.

 

Did they send you disclosure 40 days after you answered the complaint?

 

Speaking of which; it doesn't look like they provided a cause of action in the complaint.

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Answer - Midland Funding.pdf 506.32KB 0 downloads

Attached File Complaint & MSJ Midland Funding.pdf 7.86MB 9 downloads

Where's the affidavit Midland talks about in their Statement of Facts (Exhibit "A")?

 

They never allege this is a credit card.  They just keep calling it a "credit account".  I would argue this is an "open" account and lay claim to a 4-year SOL.  The problem is you never asserted any affirmative defenses with your answer so in order to use SOL you would have to request leave from the court in order to amend your answer to include the SOL defense. Even if you didn't make the payment in 2009, you still couldn't use the 6-year SOL without asserting it in your answer.

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Did they send you disclosure 40 days after you answered the complaint?

Great question! (Although a disclosure is not required here on MSJ.  I'd still argue they didn't disclose it and it's therefore not "admissible at trial" as required by the Court rules.)

 

Speaking of which; it doesn't look like they provided a cause of action in the complaint.

They stated "CONTRACT" in the caption.

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