Brotherdale

Help please! Midland Funding sueing me in JP court in Texas

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I started receiving ads from lawyers in the mail about 2 weeks ago and found my way here. I have been studying the new Texas laws for JP court and reading the forum. My concern is that not many people have posted about their outcome  in about the year. I would like fight this my self so I would greatly appreciate y'alls help.

I was finally served last night so now I have 14 days to respond.

My papers look exactly like those that others have posted from Texas. Same Bill of Sale  and last page with my account info.

1. Who is the named plaintiff in the suit?

Midland Funding LLC

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

Michael James Young

3. How much are you being sued for?

2100

4. Who is the original creditor? (if not the Plaintiff)

CITI Bank (Best Buy Card)

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

Served

6. How were you served? (Mail, In person, Notice on door)

In person

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

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

Phone messages and mail

9. What state and county do you live in?

Texas, Harris

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

Sep, 2013

11. What is the SOL on the debt? To find out:

4 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

I was just served. I have 14 days to respond

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

14 Days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Copy of last CC statement. Bill of sale for the account and a page that has my info I assume this is to prove the Bill of sale was to purchase my account.

I really appreciate all that y'all have done to help people in my position.

 

Thanks

 

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It looks like there is a AAA arbitration in the Citi agreement. Should I request that? 

It looks to me like  they have to pay my costs if the amount is less than 75k. 

If this is my best route how do I make the request? 

Thanks

 

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Motion to Dismiss or in the alternative stay proceedings and Compel Private Contractual Arbitration. Specifically mention AAA in your motion and attach the cardmember agreement. It's come up before that Midland hasn't played by the AAA rules and will get turned down by AAA.

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.171.htm

Sec. 171.025. STAY OF RELATED PROCEEDING. (a) The court shall stay a proceeding that involves an issue subject to arbitration if an order for arbitration or an application for that order is made under this subchapter.

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I finally copied and redacted the petition against me. Anyone from Texas  know if AAA will run them off for this amount or will it work against me? I have 12 days left to answer I am looking for some specific answers to the complaint of breach of contract. I just dont want to paint myself into a corner.

And if AAA is the way to go do I make that request as my answer to this or do I answer then make the AAA request.

Sorry if these questions are pretty basic but there is a steep learning curve here.

Thanks in advance.

Redacted_version.PDF

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I filed my answer today.  Thanks to some previous posts by texasrocker.

Now for discovery. The judge wants to see the questions before I send them. I have seen texasrocker offer to PM a list of questions so if someone has them or if you see this mr texasrocker I need your help.

Some new interesting facts I discovered this weekend. My original account (Best Buy Card) was opened with Capital One and all Best buy accounts were purchase by Citi Bank in 2013. I only have news reports and press releases to prove this. Will this be acceptable to the court? I cannot find my original documents. 

I dont think arb is an option anymore. In the capitol one agreement there doesnt seem to be an option. Not sure which agreement would be the one the court would consider enforceable. 

Thanks

 

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The agreement that is in force is the one that was in force when the account was opened, unless it was explicitly superseded by a subsequent agreement.  In that case, it should be the one that was in force at the time of the alleged default.

Here's how you get someone's attention:  @texasrocker

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I am ready to file my request to conduct discovery. But I have been thinking about the arbitration route instead. My CITI contract has both JAMS and AAA.  But it has a paragraph that concerns me and I need help. It says.

"Claims filed in small claims court are not subject to arbitration, as long as the matter remains in such court and advances only an individual  (non class, non representative ) claim."

I take this to mean that is the court grants me a motion to dismiss and compell arbitration then arbitration could be used.

This s in a Justice court as Texas no longer has small claims courts but this would be the closest thing to that.

Is is worth my time to ask for MTD and MTC or just proceed with discovery and fight them.

@fisthardcheese @Linda7

 

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I go with MTC.  You are not in small claims, so that paragraph does not apply to you.

Midland and AAA dont get along. If I was dealing with Midland, I would MTC in AAA every time and watch Midland dismiss the case soon after.

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On 2/22/2016 at 10:07 AM, Brotherdale said:

I filed my answer today.  Thanks to some previous posts by texasrocker.

Now for discovery. The judge wants to see the questions before I send them. I have seen texasrocker offer to PM a list of questions so if someone has them or if you see this mr texasrocker I need your help.

If you are choosing to proceed with arbitration then from what I have overheard here you do not want to begin discovery as it could render your case ineligible for arbitration.   If not then yes I can PM you first set of discovery to present to the court for their examination and then, after it has been approved, to send to the attorney's office that filed the lawsuit.  

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I received from the Plaintiff a notarized copy of the same documents they sent with the original suit.  Someone from Midland stating they are business records, blah blah blah.

It is the Bill of sale and 1 statement with the balance.

I did file the MTC but the language in my Card holder agreement is not very strong (arb can only be done if it is not in currently in small claims court) so I have low expectations for that.

I am going to go prepared to claim that Midland did not comply with the CFPB consent order as they did not submit a statement with actual card usage, or the signed contract. If that doesnt work. I will have my discovery ready and request permission to serve it to Midland.

 

Question:  Do I need to answer his notarized evidence  now or do I answer it in court?

 

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Where does the CFPB say that they must have such a statement or a signed contract?   I can tell you right now that whomever told you that is wrong and it will never hold up in court. 

Did the JP court grant you their approval to send discovery?  This is of utmost importance if you want to beat these idiots and is something you should have been on over two months ago.

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Court today!

Background:  I had filed my original answer and a few days later I filed the MTC.

In the court room I was the only defendant present this morning. The lawyer for Midland had 9 cases and there were 2 other lawyers it looked like each had 1 case. The clerk sent the lawyer and I out to talk. I just said Im not interested in settling. then back inside. The Judge was a fairly young guy early to mid 40s is my guess. I asked him if he had an opertunity to read my motion. He had not, he then read my original answer then my motion. He asked why would I want to go to arbitration. A simple question but while I had run many potential questions  all much more complex through my head. This one did not occur to me. While i thought it over the plaintiff objected to my motion so I was off the hook. She stated that since I filed an answer with a plea to the Jurisdiction and then filed then the MTC with out requesting a hearing on the MTC that I had engaged in Litigation and cited PERRY HOMES v CULL. 

He did read the CC agreement and the Midland atty agreed that there is an arb clause. To which he stated that Texas law is clear as to what he has to do no matter his feeling about it.

He spent a lot of time trying to talk me out of arbitration and kept saying I should settle he even described to me who Midland is and what they do. I replied that its not mt account and I would just prefer to go to arb. He said now Midland isnt asking for legal fees but they could and it could get expensive. He even said " Its good to stand on principle but even Travis would have loved it if he could have gotten good results at the Alamo and walked out alive".  I certainly felt it would have been a tough day if I had been there to litigate.

In the end he gave the Midland atty  10 days to write a brief on PERRY HOMES v CULL and I will have 7 days to answer then she asked for a trail after that for the verdict.

When I get the brief from them I will post it as I will certainly need help with my answer.

 

 

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@Brotherdale

You  should have decided early on whether you wanted to use litigation and the courts to defend this lawsuit or if you wanted to use arbitration. 

This is important.  Did you actually send for discovery or did you only file an Answer? In the case Midland's lawyer cited. " Perry Homes v. Cull, " the court said participating in discovery "substantially invoked the litigation process" and that waived the right to arbitrate.   However, if you did not engage in discovery,  "Perry Homes v  Cull" supports your right to arbitrate because in TX there is a strong presumption in favor of arbitration.  In the ruling, the court lists many legal actions that do not waive the right to arbitrate.  Read the case.

Perry Homes v. Cull

258 SW 3d 580 - Tex: Supreme Court, 2008 - Google Scholar

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Texas is pretty lenient on arbitration waiver. Participation in discovery doesn't automatically qualify as waiver, especially if it's similar to what would be obtained in arbitration. This is a good doc to read which covers Perry Homes-

http://www.cooperscully.com/uploads/seminars/Sohlman-PerryHomes.pdf

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That article is very helpful. Thanks!

i didn't even conduct discovery. I only submitted and answer to the suit. But the plaintiff said that because it contained a plea to the jurisdiction and listed special exceptions arb should be denied. I used the common answer that teasarocker reccomends. 

After telling her to write a brief he looked at me and said most law firms would charge $1000 to write a brief.  He was really encouraging me to settle with them.

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23 hours ago, Brotherdale said:

he even described to me who Midland is and what they do.

How did he describe them? At least you kept it simple and just said you wanted arb instead of the reality that Midland is a bottom feeder whose junk debt for pennies on the dollar business model does not make private arbitration attractive for them. Judge, you notice I'm not asking for some court ran arbitration program?

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He said that Midland and companies like them. Buy debt that the creditors don't want to mess with any more for what ever reason.  I said after I received the suit I researched them and found out who they are.

I have been giving it a lot of thought since then and if asked again I will tell him that I don't really like Midland and companies like them using my tax dollars against me (they filed more than 100 cases in my county the same week mine was filed). They use the court that my tax dollars pay for as their intimidation system. And it cost them next to nothing to do so.

If they want to prove that they own the account and that I owe them something they should have some skin in the game. More than the pennies on the dollar they have paid.

 

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56 minutes ago, Brotherdale said:

He said that Midland and companies like them. Buy debt that the creditors don't want to mess with any more for what ever reason.

For whatever reason?  The reason is to make an easy buck.  They make money off of accounts but bear none of the responsibilities or liabilities originally had by the OCs.

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@Brotherdale

You don't need to hire a lawyer to write a legal brief for this.  Since you didn't engage in discovery, it's a fairly straightforward matter to cite the facts of your case, quote relevant sections of 'Perry Homes v Cull",  and then cite what CCRP said, and tie it all together.   The judge may expect a brief from Midland's lawyer, but I think a page or two from you will suffice.  The facts and the law are on your side.  We will help you. I would not settle.  They are only trying to intimidate you from arbitrating  the case because that would be too expensive for  them.

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On 6/30/2016 at 8:26 AM, Brotherdale said:

i didn't even conduct discovery. I only submitted and answer to the suit. But the plaintiff said that because it contained a plea to the jurisdiction and listed special exceptions arb should be denied. I used the common answer that teasarocker reccomends. 

After telling her to write a brief he looked at me and said most law firms would charge $1000 to write a brief.  He was really encouraging me to settle with them.

@Brotherdale Can you explain--if you know--what the underlined above means?

Check the arbitration clause in the governing c.c. agreement to see if it contains this section or something similar:

"• Arbitration may be requested at any time, even where there is a
pending lawsuit, unless a trial has begun or a final judgment entered.
Neither you nor we waive the right to arbitrate by filing or serving a
complaint, answer, counterclaim, motion, or discovery in a court
lawsuit.
To choose arbitration, a party may file a motion to compel
arbitration in a pending matter and/or commence arbitration by
submitting the required AAA forms and requisite filing fees to the AAA."

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I received the brief for Midland today I am attaching it to this. I would appreciat all input anyone has.

It seems that she is relying on the fact that I submitted my MTC but did not schedule a hearing. Should I have done that? I dont remember reading about people in Texas needing to schedule a hearing. I filed the MTC on Feb 23 and the Midland atty acknowledged that she received it, I also have the CMRR green slip to prove that.

My initial thought is that I did not wait until "the eve of trial" to request Arb. 1) They were notified months in advance of my election of arb and raised no objections. 2)  I conducted no discovery therefore did not engage in litigation.

@fisthardcheese @CCRP626 @debtzapper

EPSON005.PDF

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@Brotherdale you probably missed something in your local county scheduling for motions but how did the Plaintff and Judge know a Motion was going to be heard when it came up a few days back? Beg forgiveness, first time Pro Se not familiar with local procedure for motion practice.

Along with all your other points, I'd bring up your agreement is governed by the FAA which is clear throughout that arbitration is done by the agreement and the agreement says you can choose arbitration up until trial.

If you read that Perry Homes case they seem to be using as the basis of their argument, there's plenty there you can use against them. They took about the worst case there is for extensive litigation and parties changing their mind back and forth about arbitrating and tried to make it fit your case when it doesn't.

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