Flowerm89

Midland Funding LLC in AZ Help!!

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1. who is the named plaintiff in the suit?

MIDLAND FUNDING

2. what is the name of the firm handling the suit?

 

3. how much are you being sued for?

 

4. who is the original creditor?(if not the plaintiff)

DILLARDS

5. How do you know you are being sued? (you were served, right?)

YES I WAS SERVED IN PERSON

6. how were you served?

IN PERSON

7.  was the service legal as required by your state law?

YES

8.  what was your correspondence (if any) by the people suing you before you think you were being sued?

I FOUND AN OLD LETTER BUT FROM ASSET BEFORE MIDLAND BOUGHT THEM (NONE THAT I CAN RECALL FROM MIDLAND FUNDING)

9. what state and county do you live in?

MARICOPA COUNTY-ARIZONA

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

FROM LOOKING AT A CREDIT REPORT IT LOOKS LIKE MAYBE 07/11 OR 11/11

11. What is the statue of limitations on the debt?

ALTHOUGH IT WAS A STORE CREDIT CARD (I COULD ONLY USE IT AT DILLARDS) I BELIEVE IT IS 6YRS

12. what is the status of your case? suit served? motion filed?

I HAVE NOT FILED MY ANSWER YET I AM STILL WITH IN THE 20 DAYS TO DO SO

...WHICH IS WHY I AM HERE LOOKING FOR GUIDANCE

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?

NO

15. how long do you have to response to suit? 

20 CALENDER DAYS FROM THE DAY I WAS SERVED

 

16. what evidence did they send with the summons? an affidavit? statements from the oc? contract? list anything they attached as exhibits.

NO, THEY DID NOT ATTACH ANYTHING ALL I GOT WAS A SUMMONS AND COMPLAINT.

 

 

 

Here are the allegations.

 

1. plaintiff is a foreign entity,

2. defendant is are husband and wife and reside in Maricopa county,az (goes into our state being a community state etc) if the debt is pre-marital debt, the non debtor spouse is joined only as a necessary party pursuant (I am not married)

3. the court has subject matter and personal jurisdiction.

4. all pertinent acts and omissions giving rise to this lawsuit occurred in Maricopa county,az.

5. all conditions precedent to plaintiff rights of recovery have occurred.

6. by accepting and using an offered extension of credit, defendant entered into a credit agreement with GE CAPITOL RETAIL BANK DILLARD S under account number ending in XXXX (they actually provided ending numbers) and agreed to the applicable terms and conditions of that credit agreement (the "debt"). Plaintiff is the successor-in-interest ("Holder") of the Debt.

7. Defendant(s) (is)(are) in default under the terms of the Debt. The present amount owned under the terms of the Debt, after all setoffs, is $904.81

8. Despite demand to do so, Defendant (s) (has)(have) failed to pay the amount owed.

9. the acts and omissions of Defendant(s) constitute a breach of contract. The Holder has been damaged thereby. WHEREFOR, Plaintiff prays as follows:

1. For Judgment against the Defendant(s) in the sum of the principal balance of $904.81, minus any payments made;

2. For cost incurred herein; and

3. For such other and further relief as the Court deems just and proper.

 

 

PLEASE HELP...I have read so many different things on the post that I am confused as to how to approach this. I have seen people say Arbitration is the only route to go, My case is in civil court since the amount is less than 10k.

 

I have read that if I am choosing arb I should

1. mail a letter to the attorney

2. then file my answer denying jurisdiction with a copy of the letter I sent (I do not have a copy of the credit card agreement so would I need to wait for the attorney to send me a copy?)

3. after filing my answer I should wait for 2 things to happen?

1. they need to give me a copy of the agreement 2. they need to deny arbitration or ignore my letter?  if I get a refusal to arbitrate response from the attorney do they HAVE to give me a copy of the agreement??  If they DO NOT give me a copy how do I proceed?

 

Again I am really new to this I have been reading every article I can so I have some knowledge (nothing great) on what the process is..

 

I do not know how I could use this but I read the CFPB took action against Midland Funding and there is a consent order on them in the article it calls for having Midland Funding go on the record as to the steps they took to validate the information on the account prior to submitting the lawsuit (if you google John Skiba a debt lawyer in az and go to his website and click on the blogs-it was posted on sept 9 2015 under the title "MIDLAND FUNDING AND PORTFOLIO RECOVERY ASSOCIATES SLAMMED BY CONSUMER FINANCIAL PROTECTION BUREA)

 

PLEASE IF ANYONE CAN HELP OR PROVIDE GUIDANCE IT WILL BE GREATLY APPRECIATED!!! MY 20 DAYS ARE CLOSING FAST AND I DO NOT WANT TO GO THE WRONG PATH.

 

THANK YOU IN ADVANCE :-)

 

 

 

 

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If you choose contractual arbitration, it will probably be your best shot.

 

On the FED site http://www.consumerfinance.gov/credit-cards/agreements/, I found the GE Dillards Agreement for 2011.  I've attached it to this posting.  It contains JAMS.

 

The process in AZ has been a source of great debate, but it appears an appropriate course of action, is something like the following:

 

-  Send a letter to the JDB attorney electing JAMS arbitration, attach the CC agreement to the letter.  Send it CMRR (certified mail return receipt)

-  At the same time, file a Motion to Dismiss, and compel private arbitration, or in the Alternative Stay proceedings and Compel private arbitration.  Request oral arguments.  (send copies CMRR to the JDB attorney as well)

 

Some believe that you are required to file an Answer, if it makes you feel more comfortable go ahead and file an answer.  Make sure you claim as an affirmative defense:  Private Contractual Arbitration with JAMS, and the court does not have subject matter jurisdiction.  You can file this the same time you file your motion to dismiss/stay & Compel Arbitration.  

 

If the account was indeed a GE Dillards card, and your last payment was in 2011, then you can use the agreement attached to this posting.  Do a search for Motion to Compel Arbitration samples, you'll find several examples.

 

 

creditcardagreement_4445.pdf

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@cofee_before_tea

Not going to lie I kinda feel like I am talking to a celebrity since I have read your replies on other post..I saw on the contract that you attached it said it was for an American express card and the one I had didn't have a logo of any kind it was strictly a store credit one. Would I still be able to use that one?

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@Flowerm89

 

Here is a GE Dillards that is not American Express.  

creditcardagreement_4446.pdf

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I would file the motion INSTEAD o an answer. AZ plaintiffs have a habit of filing an MSJ right after an answer, if your compel motion was not ruled on, the court might grant the MSJ.

If the court denies your motion (they shouldn't) you will have another 5 days at least to answer, just have it ready to go.

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Thanks so much to everyone so far who has been helping me, I am sorry if I sound so unsure and questionable, I do not mean for it to come off as if I don't believe you I just want to make sure I get and understand what I am doing. I read a post that is very similar to mine same lawyer with a lower amount about $100 less and its not going to well for them. OP GQuintero with the post title "Fighting Midland Funding..."

 

If anyone is familiar with his post and could chime in that would be great...I want to make sure I am doing everything correctly since later in his post something went wrong or was not filed correctly.

 

thanks again everyone on here...I would be lost with out all you help.

 

I did read in the Justice Court Rules of Civil procedures that I can file a Motion to Dismiss INSTEAD of an answer.  I read in another thread that this specific lawyer has a habit of asking for the motion to be denied because of lack of initiation, but the statue doesn't back this up. Would it be an overkill to mention the statue in my Motion to dismiss to beat him to it and not allow him that reason to deny? that per ARS 12-1502 all that is required is an agreement to arbitrate, therefor the statue does not require moving party to pay the filing fee to initiate arbitration either before filling a motion to compel with the court or the courts granting of that motion.

 

I know I am filing a Motion to Dismiss not a Motion to Compel since I have not filed an answer and am opting to file a MTD.

 

If I file a MTD and its denied could I then file my answer and claim contractual arb and deny jurisdiction and then file a MTC for arb later?

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@Flowerm89

 

You will want to file a "Motion to Dismiss and Compel Private Contractual Arbitration".  In your prayer, you can request an alternate resolution of a Stay of proceedings pending the conclusion of contractual arbitration.  Something like this:

 

"Wherefore, Defendant respectfully requests this Court to Dismiss this action, and compel private, contractual arbitration through JAMS.  Or, in the alternative Compel private, contractual arbitration through JAMS, and Stay proceedings pending the conclusion of Arbitration."

 

The motion to compel needs to be included in your motion to dismiss/stay.  Otherwise, you maybe creating more trouble for yourself.  The most important step is getting the case out of the courtroom!  If for some reason your motion is denied, then you'd want to file an interlocutory appeal, and kick it up to a higher court.  There is plenty of case law regarding arbitration, and it's all in your favor.  The Arb agreement language is also in your favor.  

 

The JDB attorney arguing the lack of initiation is a non-starter too.  You can fill out and submit to JAMS all of your paperwork, and send a formal request in your Arb demand letter to the attorney, quoting the language of the agreement, which states they will pay for your Arbitration fees.  

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I hate to sound like a doorknob but is there an actual form (or sample somewhere--all I found was one that said "Motion to Compel Arbitration") that is for BOTH a motion to dismiss AND compel contractual arbitration? or is this something that I would need to free form and make myself and title it "Motion to Dismiss and Compel Private Contractual Arbitration"? or are these 2 different forms I would submit?

 

thanks again every one!

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hey everyone I am preparing all my documents my notice of arbitration election letter and MTC and Answer

I have a few questions.

 

1. My summons/complaint says that "GE CAPITAL RETAIL BANK DILLARD S under account number ending in xxxx and agreed to the applicable terms and conditions of that credit agreement"  they did not provide me any evidence or extra docs just the summons and complaint. My question is the CC agreement I plan on using which @Coffee_before_tea so kindly gave (and has been the only one I can find out there) is title "GE MONEY BANK-DILLARD'S CREDIT CARD PRICING INFORMATION" is this going to be an issue that they have different names?

 

2. when referring to the cc agreement in my letter "notice of arbitration election" do I enter it as "Pursuant to GE CAPITAL RETAIL BANK DILLARDS agreement" or enter the name/title of the actual agreement I am using "GE MONEY BANK DILLARDS agreement"? 

 

3. same question for my MTC and Answer. @debtzapper thank you for that post I read through the whole thing and am a little confused since her document was titled MTC...did she file the MTC with wording for them to dismiss or stay proceedings with mtc arb first then and answer? is that the correct order? should it be done 1.answer 2. MTC w/MTD or compel arb ? would I change the title of doc? sorry just reading her whole thread left me with a few questions. 

 

4. I am a pretty confused as to what a MTC/MTD in the example she says in her post refers to it as MTD/MTC but the doc she post is titled MTC and in the wording she ask to dismiss or compel contractual arbitration. Isnt that technically a MTC and cannot be filed instead of an answer? wouldn't you have to 1. file a answer then 2. file a MTC  or otherwise File 1. MTD and if they deny the MTD can they apply a MTC without an answer being filed?

 

5. should I include a copy of CC agreement I am using in my letter to the attorney? and am I only sending them one or also to midland funding llc? in the agreement it says they will pay for arb cost and my legal fees upon my request (which I request in my elect for arb notice letter) how is that gonna work with jams?

 

a million thanks to everyone helping me out...hopefully all my questions can one day help someone else stumbling upon this post feeling as lost and confused as me!    

 

thanks all for the help.

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1.  I wouldn't worry too much about the differing names.  GE Capital changed their name from GE money bank in 2011.

2.  I would use the language in the agreement, not the complaint.  Feel free to explain the name change in your pleadings

3.  If it were me, I would layout the motion something like this:

(Heading)     MOTION TO DISMISS AND COMPEL PRIVATE CONTRACTUAL ARBITRATION

 

Statement of facts

 

Memorandum of law

 

Prayer (Wherefore, Defendant prays this honorable court dismiss this action and compel private contractual arbitration through JAMS.  Or, in the alternative, compel private contractual arbitration through JAMS, and stay current proceedings pending the conclusion of Arbitration.

 

4.  A motion to dismiss can be made in lieu of an answer.  See #3 above, this covers the MTD & MTC

5.  Yes, I would include a copy of the agreement.  You only have to send it to their attorney.

     a.  I would request in your letter that they pay for the arb costs.  When you file with JAMS, notify them that Midland is required to pay your portion of the fees, and it has been requested.  I would offer to make a $50 good faith payment.  Then I'd fill out all your paper work with JAMS and include it as an attachment to the MTD, also include the letter demanding arb you sent to midlands atty.  

 

 

Feel free to post a redacted copy of your MTD/MTC for us to look at....

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@shellieh98

 

 

I would file the motion INSTEAD o an answer. AZ plaintiffs have a habit of filing an MSJ right after an answer, if your compel motion was not ruled on, the court might grant the MSJ.
If the court denies your motion (they shouldn't) you will have another 5 days at least to answer, just have it ready to go.

 

As far as we know, that's only happened one time.  Anyway, while a mix-up can occur with a MTC and an MSJ (because an answer was filed), the same could occur if an answer is not filed.  The plaintiff could motion for a default judgment.

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@shellieh98

 

 

 

As far as we know, that's only happened one time.  Anyway, while a mix-up can occur with a MTC and an MSJ (because an answer was filed), the same could occur if an answer is not filed.  The plaintiff could motion for a default judgment.

 

By filing a MTD, it halts the time in which to file an answer (ARS 116 B ( 3 )), if the motion is denied, the defendant has 20 days in which to file an answer.

 

I would say there is clear direction on the AZ rules by filing a MTD in lieu of answer.  As opposed to what happened in azwildmans case, where the judge seemed to think it was ok to grant a MSJ when there was an active order compelling arbitration.  

 

Arbitration is a JURISDICTIONAL issue, the quicker you remove yourself from the courts jurisdiction, the better off you'll be.  Purely my opinion, would be to file a MTD & MTC in lieu of an answer.  It's a dispositive motion and needs to be heard before litigation can proceed.

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@Coffee_before_tea

 

AZ statutes and court precedent are also clear on what happens when a MTC is granted.  We don't know that the judge thought it was ok to grant a MSJ when there was an active order compelling arbitration.  That's possible, but it's also possible that he didn't know the law or just screwed up.  

 

My point was simply that screw-ups can happen.  We don't know that what happened in azwildman's case was common.

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@Coffee_before_tea

   We don't know that the judge thought it was ok to grant a MSJ when there was an active order compelling arbitration.  That's possible, but it's also possible that he didn't know the law or just screwed up.  

 

I don't think the judge cares if it's OK to grant it or not. Again, I think we can rule out honest mistake. As far as not knowing the law: they stated their legal argument behind the decision at the motion to re consider hearing.  Any simple oversight or misunderstanding would have been corrected by filing the motion to re consider. The court, when confronted, stood behind it's ruling and provided its finding at the motion hearing.

 

 

 

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I don't think the judge cares if it's OK to grant it or not. Again, I think we can rule out honest mistake. As far as not knowing the law: they stated their legal argument behind the decision at the motion to re consider hearing.  Any simple oversight or misunderstanding would have been corrected by filing the motion to re consider. The court, when confronted, stood behind it's ruling and provided its finding at the motion hearing.

 

Depending upon the desired outcome, the defendant is taking his chances by not filing an answer or by filing one.  If he files one, he risks azwildman's outcome (which should be overturned on appeal). 

 

However, if in lieu of filing an answer, a defendant files a motion to dismiss or in the alternative, to stay the proceedings pending arbitration, he takes the chance that the plaintiff will voluntarily dismiss without prejudice before the defendant's motions are heard.  The plaintiff can do so without the defendant's or court's permission because no answer was filed.

 

Much has been mentioned about "leverage".   A voluntary dismissal by the plaintiff under those circumstances affords no leverage to the defendant. 

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Depending upon the desired outcome, the defendant is taking his chances by not filing an answer or by filing one.  If he files one, he risks azwildman's outcome (which should be overturned on appeal). 

Agreed. It's a broken system in AZ

 

However, if in lieu of filing an answer, a defendant files a motion to dismiss or in the alternative, to stay the proceedings pending arbitration, he takes the chance that the plaintiff will voluntarily dismiss without prejudice before the defendant's motions are heard.

I would think the OP would be OK with that. Getting the plaintiff to dismiss it's case would be a goal.

  Much has been mentioned about "leverage".  

As it should be I would think

A voluntary dismissal by the plaintiff affords no leverage to the defendant.

It affords no need for it as well. If  they want to voluntarily dismiss, or even trade the dismissal for your leverage; I would certainly let them. If someone gets sued, then gets a voluntary dismissal (with or without prejudice), especially early in litigation, I think they should just consider it a win. Especially if it was to ever happen in AZ.

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It affords no need for it as well. If  they want to voluntarily dismiss, or even trade the dismissal for your leverage; I would certainly let them. If someone gets sued, then gets a voluntary dismissal (with or without prejudice), especially early in litigation, I think they should just consider it a win. Especially if it was to ever happen in AZ.

 

I, too, would consider it a win.  However, my point is that others have mentioned leverage (deletion of TLs, no selling the debt, etc.).  As I stated at the beginning of my previous post, it depends upon the defendant's desired outcome.  If one wants leverage, there is none if the JDB can dismiss with no notice to the defendant and without anyone's permission.

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The leverage only comes after the Court grants the MTC Arb.  A standing order to compel arbitration is the goal of this process.  Without the order, there is no teeth.

 

If, perhaps the JDB decided to Dismiss the case before the MTD/MTC is heard, then that is a win.  If the OP wanted to force the JDB's hand after the dismissal, then they could re-file their Motion to Compel Arbitration.  Just because the case is dismissed, doesn't mean the OP can't get a MTC granted.

 

I think the biggest issue with azwildmans case, is he allowed it to carry on much too long.  He filed his MTC *after* the JDB filed for a MSJ.  The court, confusingly granted both motions.  This, in my opinion happened in large part because of the time that lapsed between the initial filing, and the MTC.   The court maintained jurisdiction for many months, and was only contested after a MSJ had been filed.

 

With the knowledge of the AZ courts being broken, in my opinion, you have to strike fast and hard, and do what you can to get out of the AZ Kangaroo system.

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@Coffee_before_tea

 

The leverage only comes after the Court grants the MTC Arb.

 

 

If you file an answer, there is leverage even if a MTC has not been granted.  Filing an answer prevents the plaintiff from voluntarily dismissing without prejudice because the plaintiff has to have the agreement of the defendant or a MTD without prejudice which must be granted by the court.  If the plaintiff wants the agreement of the defendant, there's the defendant's leverage. 

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They can try to get a default, but their rules say you can motion to dismiss in leiu of an answer. If AZwildman had filed a MTD/MTC they could not have filed the MSJ, as an answer is required before they could do so.

Harry and I had this discussion ad nausem, his position was you had to file an answer you could not file a MTD/MTC. Then he said you could file a MTD which would be denied, but not an MTC in the same motion. Both have been proven wrong by many posters. Most states, AZ included allow for a MTD/MTC in lieu of an answer. I think it would be harder to find a state that does NOT have that option.

As far as them filing a dismissal w/o prejudice, the poster could only be so lucky. The plaintif would not really have any recourse, as they would run into the same problem if they refile. Win/win.

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@shellieh98

 

Yes, the rules allow for a MTD/MTC in lieu of an answer.  I hope I didn't imply otherwise.

 

My point was that before the motions are heard by the court, the plaintiff can dismiss without prejudice, and the defendant has no leverage to demand deletion of TLs, no reselling of the debt, no issuance of a 1099-C, etc.  The debt could be resold and the defendant gets to start over.

 

Why can't a defendant file a MTC at the same time that he files his answer?  If the plaintiff files an MSJ, the defendant would simply have to be diligent and make sure his motion is heard first.  I'm not sure how many times we've seen plaintiffs file MSJs right after an answer has been filed.

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I've seen it quite a few times, you could file them at the same time, bit I think it depends on expense. My court charges for an answer 225.00) but does not charge for motions. I've seen another state charge for motions, but not answers. And some charge for both.

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For whatever reason my copy and paste does not let paste in here can someone review my election to arbitrate letter and let me know if its missing anything or if something needs to come out. Thank you.

 

 

For some reason it updated an old version in the new one I have the attorney info instead of "Midland Funding" and also have my case# on there"

 

and this will be sent to them with a copy of the agreement? or no?

notice of arb 1..docx

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@Flowerm89

 

Your letter is fine; although, if it were me, I'd remove the last paragraph about dismissing the case.  Let the court do that for you.  

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