Midland Funding in AZ

[Panove4 3]

You have one last shot but you have to get it started TO-DAY.

 

Arbitration.  Start by sending a certified letter to Bursey and tell them you demand to have this matter settled via private contractual arbitration per the account agreement.

Any sample of that time of letter on this forum?

[Harry Seaward 1,356]

@Panove4

Did they ever provide you with a copy of the credit card agreement?

[Goody_Ouchless 506]

They didnt' bargain before, they just hit me with a lawsuit. I got a call from them one day saying they need to verify that I'll be home because they sending someone to serve me a warrant. I almost had a heart attack that day, then they told me to calm down it's not a real warrant. Weeks later the lawsuit showed up in the mail.

 

Sorry - I didn't mean you specifically. My point was that there is a ton of misinformation out there about these kinds of lawsuits. The reality is that Midland is pretty inflexible - regardless of whether they paid "pennies on the dollar" for a given debt. What you are encountering is the norm in these matters.

[Goody_Ouchless 506]

Here is arb clause from Care Credit website:

How to start an arbitration, and the arbitration process 1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. 2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding. 3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control. 4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced. • Governing Law for Arbitration This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal r

 

[Panove4 3]

Here is arb clause from Care Credit website:

Does it apply to Midland Funding or only Synchrony Bank?

[Panove4 3]

@Panove4

Did they ever provide you with a copy of the credit card agreement?

No, I had a mediation hearing Monday and requested it at the time and was told that they are not required to provide it.

[Goody_Ouchless 506]

Use the one from Synchrony - it is on the Care Credit site - let them argue that it's the wrong one. I believe all GEMB contracts had similar clauses.

http://www.carecredit.com/YourTerms/Aug2014.pdf

 

Midland bought the account, so they have to abide by the terms. The contract is clear. Your only hurdle will be that Bursey will argue that you waived your right to arbitration by participating in litigation. Others may be able to answer how to get around that,

[BV80 2,794]

@Goody_Ouchless

 

If all the OP has done is answer the complaint but has not engaged in discovery or filed any motions, then he'd have a good argument that he has not engaged in litigation.

[Harry Seaward 1,356]

Your only hurdle will be that Bursey will argue that you waived your right to arbitration by participating in litigation. Others may be able to answer how to get around that,

Agreed. I have some case law I'll give you when the time comes to draft your Opposition to MSJ and Motion to Compel arbitration. Arizona generally wants people to use arbitration instead of court and it's pretty difficult here to passively waive contractual arbitration. 

[Harry Seaward 1,356]

Any sample of that time of letter on this forum?

I don't know of any samples but all you need to say is that the CareCredit account agreement provides for private contractual arbitration to settle disputes and that's how you want to have this dispute settled. 

[Panove4 3]

I don't know of any samples but all you need to say is that the CareCredit account agreement provides for private contractual arbitration to settle disputes and that's how you want to have this dispute settled. 

So do I go through JAMS or not?

[Harry Seaward 1,356]

So do I go through JAMS or not?

JAMS seems to be the preferred choice, but i don't belive it matters that much. 

 

The arbitration "strategy" is based on the premise that Midland will dismiss once they are faced with paying the arbitration fees in order to pursue their claims. The fees for them in a new case is something like $1,500 and then they have to foot the bill for the arbitrator's fee for each in-person hearing.  I think this is usually $2,000 for a full day.   As you can imagine, they would be out if their mind to arbitrate a $500 debt.   As the amount of debt goes up, so does their incentive to arbitrate. $2,800 is probably not enough for them to arbitrate, but they might.

 

Just deal with one thing at a time.  Get your certified letter in the mail to Bursey ASAP; then you can deal with your court stuff. 

[Panove4 3]

JAMS seems to be the preferred choice, but i don't belive it matters that much. 

 

The arbitration "strategy" is based on the premise that Midland will dismiss once they are faced with paying the arbitration fees in order to pursue their claims. The fees for them in a new case is something like $1,500 and then they have to foot the bill for the arbitrator's fee for each in-person hearing.  I think this is usually $2,000 for a full day.   As you can imagine, they would be out if their mind to arbitrate a $500 debt.   As the amount of debt goes up, so does their incentive to arbitrate. $2,800 is probably not enough for them to arbitrate, but they might.

 

Just deal with one thing at a time.  Get your certified letter in the mail to Bursey ASAP; then you can deal with your court stuff. 

Is this good enough? "Please be advised that pursuant to the account agreement, plaintiffs demand to have this matter settled via private contractual arbitration".  Do I include a copy of the agreement that has been uploaded here?

[Harry Seaward 1,356]

That should do it.  You don't need the agreement for Bursey. He knows it's subject to arbitration. 

 

Next start working on your Opposition to MSJ.  I believe the Centerpoint should be that you have elected arbitration per the card agreement (attach the agreement to your statement of facts), and the court no longer has jurisdiction over the matter. Also get a motion to compel arbitration put together because you'll be needing to file that along with your Opposition. You'll need to attach a copy of the agreement to this motion as well.

[Goody_Ouchless 506]

Is this good enough? "Please be advised that pursuant to the account agreement, plaintiffs demand to have this matter settled via private contractual arbitration".  Do I include a copy of the agreement that has been uploaded here?

 

"plaintiffs" should be "defendant"

[Panove4 3]

"plaintiffs" should be "defendant"

Ooops! Thank you.

[Panove4 3]

So I sent the demand for arbitration via certified mail, what's next?

[Harry Seaward 1,356]

File with the court a motion to compel arbitration and stay proceedings.  Cite Arizona Revised Statutes 12-1502 (A ) and (C ). Be sure to attach a copy of the agreement and the letter you sent.

 

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/12/01502.htm&Title=12&DocType=ARS

[Panove4 3]

I sent the following "via certified letter" to Bursey & Associates but no response. What should I do?

"Pursuant to the account agreement, defendants demand to have this matter settled via contractual individual arbitration. Thank you"

[Harry Seaward 1,356]

I sent the following "via certified letter" to Bursey & Associates but no response. What should I do?

"Pursuant to the account agreement, defendants demand to have this matter settled via contractual individual arbitration. Thank you"

Perfect.

Now file your motion to compel with the court and attach a copy of that letter and the contract/agreement.

[Panove4 3]

File the Objection to MSJ AND Motion to Compel?
Earlier someone said to Motion the Court for Leave so I can amend my answer to claim this is an "Open Account" subject to 4yr SOL.

 

What to do?

[Panove4 3]

@Panove4

Did they ever provide you with a copy of the credit card agreement?

No, never.

[Harry Seaward 1,356]

File the Objection to MSJ AND Motion to Compel?

Earlier someone said to Motion the Court for Leave so I can amend my answer to claim this is an "Open Account" subject to 4yr SOL.

 

What to do?

Yes, both but your Opposition should be based mostly, if not completely, on the fact that you've initiated arbitration and there's no further litigating that can happen in court.

 

I said to amend the answer but that was before the arbitration strategy came into play. 

[Panove4 3]

Agreed. I have some case law I'll give you when the time comes to draft your Opposition to MSJ and Motion to Compel arbitration. Arizona generally wants people to use arbitration instead of court and it's pretty difficult here to passively waive contractual arbitration. 

Could you please share those case law now as I'm in the process of drafting the Opposition to MSJ and Motion to Compel. 

Should I also Motion the court for Leave so as to amend my answer to include SOL defense?

I'll already sent a certified letter to the attorney's office demanding arbitration so could filing these motions mean I waive my right to arbitration?

[Panove4 3]

Is it suppose to look something like this? Should I use the word "Objection" or "Opposition"? 

MARICOPA COUNTY JUSTICE COURT, ARIZONA

MCDOWELL MOUNTAIN JUSTICE COURT

18380 North 40th Street, Phoenix, AZ 85032

 

 

 

MIDLAND FUNDING LLC                                              )                                    No.
a foreign entity,                                                              )
                                                                                       )
           Plaintiff,                                                               )                                    OBJECTION TO SUMMARY JUDGEMENT
                                                                                       )
vs.                                                                                  )
                                                                                       )
                                                                                       )
xxxxxx, xxxxxxxx                                                           )
                                                                                       )
          Defendants                                                          )

_______________________________________________________________________________________________________________________________________

This motion asks the judge to rule against you without holding a trial. You have a right to file a written response to this motion. 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.

 

Defendants, undersigned, pursuant to Arizona Revised Statutes 12-1502 (A ) and (C ) hereby moves for what?