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I really need a General Strategy of how to fight Midland represented by Johnson Mark. I understand majority of documents and their purpose, but I'm worried that if I do not see the whole picture beforehand, I won't be able to react appropriately or prepare in time.

Can anyone direct me to some sort of flow-chart of how the case moves through civil court. Maybe a TO-DO list and what-to-expect list and appropriate time limits. I'm a little confused on timelines and all necessary requests and filings. I'm worried if I do not file or answer some document in a timely manner then I will be basically surrendering my rights and/or missing requested paperwork to support my case.

 

Here is my TIMELINE:

2006   OPENED WF CONSUMER CREDIT CARD AS OVERDRAFT PROTECTION

2011    CC ACCOUNT WAS CHARGED-OFF BY WF in 2011

     (CC limit was $4,500 but I'm being sued for almost $10K)

2011-2016    RANDOMLY RECEIVED STATEMENTS FROM MIDLAND

     (amounts varied from $7K to $13K)

11/12/15     JOHNSON MARK LLC SERVED COMPLAINT ONTO MY SPOUSE

     (I was not present on premisses, but it's still legal in UT)

11/18/15     COMPLAINT WAS FILED WITH 3RD DISTRICT COURT, UTAH
11/24/15     FILED MOTION TO DISMISS

      (based on SOL; as it is not an "instrument in writing" and falls under 4 years)

12/2/15     FILED 1st REQUEST TO SUBMIT FOR DECISION 
12/10/15     RECEIVED PREMATURE FILING MINUTES
12/10/15     RECEIVED OPPOSITION TO MOTION 

     (was dated 12/7/2015)

12/15/15     FILED REPLY TO OPPOSITION
12/15/15     FILED 2nd REQUEST TO SUBMIT FOR DECISION
2/16/16     RECEIVED ACCOUNT STATEMENT FROM JOHNSON MARK LLC IN THE MAIL

     (very basic info stating the whole acct #, ownership, balance, but no charge-off date)

2/16/16     CALLED JUDGE's CLERK TO INQUIRE ON STATUS OF REQUEST
2/23/16     RECEIVED NOTICE FROM COURT ON MOTION TO DISMISS

    (ruling scheduled on 3/07/2016)

3/7/16     JUDGE DECLINED THE MOTION AND EXTENDED 21 DAYS TO FILE THE ANSWER

     (SOL was denied, as judge agreed it falls under "instrument in writing"; 6 years instead of 4)

3/22/16 SENT LETTER SELCETING ARBITRATION TO JM AND MIDLAND

3/28/16 FILED THE FOLLOWING:

  • ANSWER
  • AFFIDAVIT
  • MTC
  • PROPOSED ORDER

3/28 - 3/31/2016 RECEIVED MULTIPLE PHONE CALLS FROM JM

     (to stop any phone calls, file CEASE & DESIST)

4/1/2016 AGREED ON SETTLEMENT

     - my original offer was $1500 when complaint was filed; JM's lowest was $7.5K

     - JM offered $2K, saying it's a stretch from original $7.5K

     - countered with $500, pointing out ARB fees and legal expenses

     - JM declined

     - JM called 30 minutes later accepting the offer

4/1/2016 RECEIVED SETTLEMENT PAPERWORK

     - JM lawyer sent AGREEMENT LETTER to my email (upon my request)

     - called JM lawyer directly to request: dismissal with prejudice, no transfer of debt, no 1099C

     - agreed upon everything but 1099 - as it is regulated by Federal Law

     - ordered cashier's check and went to meet up with JM lawyer

     - received SETTLEMENT AGREEMENT and SATISFACTION LETTER in writing

     - both parties have signed MOTION TO DISMISS (with prejudice)

     - received ORDER OF DISMISSAL WITH PREJUDICE

     - all docs mentioned: with prejudice, and each party bearing its own costs and attorney fees

     - received payment stub

 

 

Thank you to everyone. This has been the best resource.

   

 

 
   
   
   
   
   

 

 

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So if it is a regular CC with Wells Fargo, you may be able to find an arbitration agreement. Then motion to compel arbitration. I beat JM that way. 

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Few questions, as this is completely different "ball game", and completely opposite direction of all research I've done:

1. I assume arbitration agreement would be inserted somewhere within Terms & Conditions pamphlet?! 

Since I do not have a copy of original contract (as I don't think it even exist - as plaintif argued pointing to terms & conditions), nor I believe I ever signed something like that, can you point me in the right direction to start digging?

I've applied for that card 10 years ago and honestly do not remember that any sort of contract was ever on the table...

2. Outcomes of arbitration would be...payment plan?...dismissal?...settlement for lower amount?

3. Won't I be responsible for finding an arbitrator and covering costs, same as "suiting up"?

Thank you for the info and you time, don't even know how to properly "thank you"!

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I've read up on arbitration - so far nothing promising:

"...In California, the only state where arbitration outcomes have to be disclosed in detail, the results aren't encouraging, at least in the debt collection field. A Public Citizen study found that the National Arbitration Forum, a company that handled collection disputes, had ruled in favor of creditors 94% of the time. Does that seem like a fair outcome?..."

http://www.creditinfocenter.com/cards/credit-card-arbitration.shtml

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If Arb is granted by the judge, someone like Midland will usually give up. The Cap in fees for a consumer is $250, just to start arb it usually cost the JDB $5k. 

This is how I did it. http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ 

I'll look for an arb agreement but there are some online. This one is newer, I think I can find one from 09 tommorow but this should give you the idea. See page 8.

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_11230.pdf

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@CCCP Answer the following, and post it to this thread so we can get a better grasp of what you're dealing with:  

Here is a Wells CC Agreement from 2011, it contains an Arbitration clause.  This came directly from the CFPB website, where the banks are required to submit CC Agreements for consumer use.

creditcardagreement_5181.pdf

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It depends on your goals, if you just want to get the debt ignored and win, it is a good way to go. If you are hoping to catch collectors in violations and sue for FDCPA violations, it isn't. 

All I know is I used it the first time against JM with an O.C. not a junk debt buyer and I still won, case dropped debt is gone. 

I also elected arb with several other JDBs and they all went away, including Midland. 

 

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@Coffee_before_tea

Thank you, I was actually able to "Google" info stating that WF and few others have mandatory arbitration clause. Though, wouldn't I need to look for a 2006 version; as of origination date?

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Typically, you'll need a CC agreement from the date of your last purchase.  If your last purchase was in 2011, then a 2011 CC agreement would apply (generally).

What you've described seems interesting to me.  With a limit of 4500, and you're being sued for 11K five years later, seems to me they are adding fees and interest they are not entitled to.  Need more information though.

You have 21 days to file an answer, so at least from what it appears right now, your best strategy would be to file an answer, and at the same time file a Motion to Compel Contractual Arbitration and Stay Proceedings.   In your answer, you'll need to use private contractual arbitration as an affirmative defense (as well as others).

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@Cliff2009

Thank you, I see that the catch, as usual, lies within evolution principle - gain most energy with a least amount of effort.

My original strategy was trying to figure out who is going to get my tax refund:

- settle for 20% or lower 

- suit-up (no longer an option, $4K cap)

- file BK

I will read up on the strategy. Does it make any difference to file an answer first or to file MTC right away? 

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1. Who is the named plaintiff in the suit?

Midland 

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

Johnson Mark LLC

3. How much are you being sued for?

Under $10K

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

WF is OC

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

Complaint served to my spouse (I was not present) and filed with District Court.

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

Spouse.

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

Looks like it.

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

"Out of sight - out of mind"

9. What state and county do you live in?

UT,  Salt Lake

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

Ocrober 2012

11. What is the SOL on the debt? 

I've argued 4, as it falls under open ended contract. Though, all Plaintiff did is waived "instrument in writing" to get my MTD denied.

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).

MTD based on SOL denied, answer due in 21 days, by 3/21/16

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Have not checked my credit history in a loooong time, as my credit got "sacked" years ago, due to my medical conditions.

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.

Nope. Did not know such facts, but definitely will pass it on from now on.

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? 

Respond by 3/21/16; no interrogatories...yet...

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

Received a copy, similar to Midland's "offer" letter, addressed from Johnson Mark, stating OC, full acct number, charge-off date, amount at charge-off, and stating that it is now serviced by JM.

17. See Timeline above.

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@Coffee_before_tea

 How do I tie this affirmative defense in answer? "...In your answer, you'll need to use private contractual arbitration as an affirmative defense (as well as others)..." Do I just reference Terms & Conditions?

Also, do you suggest to use any other affirmative defenses, such as - Stating the Claim upon which relief cannot be granted - based on SOL...etc...? Just in case MTC gets thrown out?

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@Coffee_before_tea

As affirmative defenses are a bit tricky and I do not want to create a "laundry list" and make only a burden of proving it myself, which other defenses do you suggest to insert within an answer...obviously pertaining to my case and not a general proceeding?!

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1 hour ago, CCCP said:

@Cliff2009

Thank you, I see that the catch, as usual, lies within evolution principle - gain most energy with a least amount of effort.

My original strategy was trying to figure out who is going to get my tax refund:

- settle for 20% or lower 

- suit-up (no longer an option, $4K cap)

- file BK

I will read up on the strategy. Does it make any difference to file an answer first or to file MTC right away? 

I'll look back at my notes but I filed the MTC at the same time as my answer. Depending on the agreement, you may need to "elect" arbitration directly to the lawyer prior to your answer and MTC. 

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So, here is what I've found in WF Agreement, please correct me if my assumptions are incorrect:

1. Whoever does not request arbitration bearing the costs: "...If either you or the Bank fails to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses incurred by the other in compelling arbitration..."

2.  You can submit at any time: "...Either you or the Bank may submit a Dispute to binding arbitration at any time notwithstanding that a lawsuit or other proceeding has been previously commenced..."

3. I have to request arbitrators through AAA: "...Each arbitration, including the selection of the arbitrator(s) shall be administered by the American Arbitration Association (AAA), or such other administrator as you and the Bank may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to hereinafter as the "Arbitration Administrator"), according to the Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes ("AAA Rules"). To the extent that there is any variance between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall control. Arbitrator(s) must be members of the state bar where the arbitration is held, with expertise in the substantive laws applicable to the subject matter of the Dispute..."

4. No matter JDB, the Agreement survives: "...The provisions of this Arbitration Agreement shall survive termination, amendment or expiration of the Card or any other relationship between you and the Bank..."

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4 hours ago, CCCP said:

So, here is what I've found in WF Agreement, please correct me if my assumptions are incorrect:

1. Whoever does not request arbitration bearing the costs: "...If either you or the Bank fails to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses incurred by the other in compelling arbitration..."

Yes, so if the court compels JM to go to Arb and they don't you are entitled to any fee's you spent to file. Now I don't know AAA fee's, many here know a lot more but typically your fee is capped at around $200. https://www.adr.org/aaa/ShowPDF?doc=ADRSTAGE2026862

 

Quote

2.  You can submit at any time: "...Either you or the Bank may submit a Dispute to binding arbitration at any time notwithstanding that a lawsuit or other proceeding has been previously commenced..."

Yes, so before you answer you "elect" arbitration with the law firm. I'll find wording. 

Quote

3. I have to request arbitrators through AAA: "...Each arbitration, including the selection of the arbitrator(s) shall be administered by the American Arbitration Association (AAA), or such other administrator as you and the Bank may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to hereinafter as the "Arbitration Administrator"), according to the Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes ("AAA Rules"). To the extent that there is any variance between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall control. Arbitrator(s) must be members of the state bar where the arbitration is held, with expertise in the substantive laws applicable to the subject matter of the Dispute..."

You are a long way from worrying about that, odds are it will never go that far. 

Quote

4. No matter JDB, the Agreement survives: "...The provisions of this Arbitration Agreement shall survive termination, amendment or expiration of the Card or any other relationship between you and the Bank..."

Yep, they are bound by it since they bought the debt. 

Since they do not have an agreement, it is up to you to provide one. Here is one from 2010. 

http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2010-Wells-Fargo-Agreement-with-AAA.pdf

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So, according to Agreement, first, I will have to send a letter to both JM and JDB stating that I "elect" private arbitration first? Then file answer and MTC ? (I actually researched the web - there are few cases showing that in Utah many judges elect to interpret that answer has to be filed first to trigger MTC).

Or do I just file answer and MTC and its too late for the letter?

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You will want to send (CMRR) JM/Midland a letter similar to the one below. You also want to atach the agreement with the arb section highlighted. Keep a copy to attach to your MTC.

Certified return receipt _________________________
 
 
 
NOTICE OF ARBITRATION ELECTION



Pursuant to Wells Fargo cardholder agreement,(see attached), I  ELECT private contractual arbitration via AAA to resolve all of our disputes.

As per this agreement,
"Either you or the Bank may submit a Dispute to binding arbitration at any time notwithstanding that a lawsuit or other proceeding has been previously commenced.
 
I expect dismissal of (case #XXXXX) no later than 10 days from the receipt of this notice.
 
 
____________________________________________YOUR NAME
 

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@CCCP  The affirmative defenses should be the ones applicable to you.  Don't feel under the gun because you have to prove the affirmative defense.  Look at it this way, if you can prove it, then the case is dispatched in your favor.  

Some of the affirmative defenses that could apply are as follows:

- The Court lacks subject matter jurisdiction due to private contractual arbitration.
- The action is barred by the Statute of Limitations
- The action is barred by the statute of frauds
-  etc... find more here

 

I would also note that Midland had a Consent Order placed on their collection practices.  You can read it here.

Think in terms of leverage, and using contractual arbitration gives you a significant amounts of leverage.  The steps will be something like this:

1.  Send a letter to Johnson mark, stating you elect private contractual arbitration.  Attach the card agreement.
2.  File a Motion to Stay proceedings and Compel private contractual arbitration with the court.  Make sure you have an affidavit that states the contract/agreement is the correct one and is binding.
3.  File your Answer, with the appropriate affirmative defenses, at the same time you file your MTC Arbitration.
4.  Wait for JM/Midland to oppose the motion, do your reply, then submit for decision.
5.  In your MTC Arb, make sure you request in your prayer that the action be Stayed until the completion of contractual arbitration.
6.  File with your MTC Arb a "Proposed Order & Judgment", stating the what you requested in your prayer.  (i.e.  This action is to be stayed until the completion of private, contractual arbitration, and this court orders Midland to begin Arbitration within 30 days, is Granted/Denied.)

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Big thanks to both of you, now I've got some writing to do!

I will try to post once complete, though not sure how much time I will have left, since it's all due by Monday.

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Here's a Sample MTC Arb that's been floating around.  You'll have to change the details to match your situation, and/or add additional arguments.

Quote

Plaintiff                                                         In the XYZ Court of State of XYZY

             vs
                                                                                                                                         Case : XYZ
                                                                                                                                          Date;   September         2015
Defendant



MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS  OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING
                                                                                    ARBITRATION

NOW COMES Defendant (Your name), appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2015, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."
Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2015


(Your name typed), Defendant, pro se




VERIFICATION BY AFFIDAVIT
Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2015

 

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