FWM1A

Sued by Midland Funding LLC in Michigan over a debt through Synchrony Bank

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1. Who is the named plaintiff in the suit?
Midland Funding LLC (Warren, MI)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
No named law firm - lists 4 separate plaintiff's attorneys

3. How much are you being sued for?
~$860

4. Who is the original creditor? (if not the Plaintiff)
Amazon.com -- Synchrony Bank

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

Received a Summons and Complaint via mail and notice on door

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

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

Yes

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

No correspondence

9. What state and county do you live in?

Michigan, Ingham County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
10/13/2014

11. What is the SOL on the debt?
6 years in Michigan

12. What is the status of your case?
Unsure - so far have only received the Summons and Complaint, and Order Regarding Alternate Service

13. Have you disputed the debt with the credit bureaus?
No

14. Did you request debt validation before the suit was filed?
No

15. How long do you have to respond to the suit?

Until 4/14/16 - 28 days, as I received the Summons & Complaint by mail
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit of the Midland Funding officer (not sure about the formal name for this document), bill of sale from Synchrony Bank to Midland Funding, and account activity summary/payments from Amazon.com - please see documentation they sent by following the link below.
 

HERE IS A LINK to the Summons and Complaint/attached exhibits:  https://drive.google.com/file/d/0Bx30KmII08DUVDVOcVdvY2NjVDA/view?usp=sharing

 

Other details that may be pertinent: I have no assets or income -- currently unemployed -- and I would prefer to take care of this outside of court, if possible. What is my best course of action, here?
 

Should I file a Motion to Compel Arbitration and request the American Arbitration Association (I've read that they’re not so fond of Midland…)? If so, if anyone has any “pre-written” or outlined documents to alter and send to Midland and my district court, I would sincerely appreciate those, as well. I welcome any other suggestions...I’m new to this and quite overwhelmed!
 

Thank you very much for your time and assistance.

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@FWM1A I'm not sure who still posts from Michigan here but this is a good thread if you don't opt for private arbitration-

 

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@CCRP626 Thank you for this resource...I will be reading through! I believe arbitration is my best option, but I'm certainly not dismissing other routes...though I do need to get a response sent to them ASAP (running short on time).

I've seen @Harry Seaward is very familiar with Midland and their dealings with Synchrony Bank, but I believe he is in Arizona. Here's to hoping some fellow Michiganders show up. :)

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@FWM1A if you have no assets or income, you may want to check this out. https://www.midlandcreditonline.com/who-is-mcm/our-pledge/

Also, if you go for private arbitration, watch out for a Judge using a Jedi mind trick on you.

http://www.creditinfocenter.com/community/topic/327528-please-help-michigan-pra-lawsuit-mtc-denied-now-trial-by-judge/

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@Brotherskeeper - thanks for that thread...I do not have a copy of the credit card agreement, but I was able to find a "copy" in a cc agreement database here: http://files.consumerfinance.gov/a/assets/credit-card-agreements/txt/creditcardagreement_11253.txt

I checked over the thread you shared and you said "It's important to make certain your motion contains the exact wording of your arbitration clause. "

Since I do not possess a copy of the agreement myself, do you believe this is acceptable?

Thanks again for your help!

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1 hour ago, FWM1A said:

@Brotherskeeper - thanks for that thread...I do not have a copy of the credit card agreement, but I was able to find a "copy" in a cc agreement database here: http://files.consumerfinance.gov/a/assets/credit-card-agreements/txt/creditcardagreement_11253.txt

I checked over the thread you shared and you said "It's important to make certain your motion contains the exact wording of your arbitration clause. "

Since I do not possess a copy of the agreement myself, do you believe this is acceptable?

Thanks again for your help!

@FWM1A

In reading other threads here and at another forum, some defendants are able to prevail on their motions to compel arb with agreements downloaded from the Consumer Financial Protection Bureau (CFPB) database.  Some debt buyer plaintiffs argue that the agreements are not the correct one and/or are inadmissible as no proper foundation has been laid.  In the arbitration threads here on CIC, posters discuss their strategies for arguing for CFPB agreements or those provided on the original creditor's website. Read up as much a you can . Posts by @fisthardcheese are an excellent resource. 

When I urged fyresine to make certain her motion contained the wording from her agreement, it was because it appeared as if she may have pasted the language from the motion she was copying. 

You should probably look into applying for a court fee waiver due to indigency. If you plan on electing arbitration, follow the instructions on the cc agreement and request that JDB pay your fees as the agreement outlines. I read this very quickly, but it appears they can deny if they feel you are electing arb in "bad faith."  

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@Brotherskeeper - this is all very helpful info, thank you. Is there any reason to go with JAMS over AAA for arbitration? I thought the best to go with is AAA. Also, I'm a bit lost regarding what exactly to submit and to whom. If I am correct, can my response to the complaint I received be the MTC arbitration itself? And would the indigency waiver just be sent to the court, or to Midland, their attorneys, and the court? 

Ughhh. This is so stressful, I'm so tempted to just let this default because I'm so short on time, but man...I really want this to be off my shoulders and off my credit report. It's just so much to take in when I've never had to deal with a legal matter in my life.  Don't understand the process or the jargon. On top of being ill and recently unemployed, I now have this to fight. :/ sorry for the pity party, and thanks again for the info you've been providing me. I'm wondering if I were to call up Midland and tell them my situation if they'd just drop the case, but I have a feeling it would just come up again later. 

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@FWM1A JAMS is more expensive than AAA for the JDB, so usually JAMS is the choice but with Midland or any other JDB not registered with AAA, the choice would go to AAA. They'd have to submit paperwork describing their practices and pay a fee to register. They've had plenty of time and still haven't done so. Until they do, AAA won't allow them to proceed. You could take that denial from AAA back to the Judge to push to get the case dismissed with prejudice.

You could call asking Midland about their hardship pledge but expect them to ask you about your assets, any property you own, income tax refund coming back, etc. Make sure to just say you're disputing the debt shown on the paperwork if they try to work it into some admission of guilt. If they stay they'll stop collecting you'll probably want to also ask if this stays on your credit report and when they'll resume collection activity.

 

 

From your agreement- "

 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.

Make sure to ask the Plaintiff to pay the arbitration fees. Court fee waiver is something else and has to be approved by the Judge.

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8 minutes ago, FWM1A said:

@Brotherskeeper - this is all very helpful info, thank you. Is there any reason to go with JDB over AAA for arbitration? I thought the best to go with is AAA. Also, I'm a bit lost regarding what exactly to submit and to whom. If I am correct, can my response to the complaint I received be the MTC arbitration itself? And would the indigency waiver just be sent to the court, or to Midland, their attorneys, and the court? 

Ughhh. This is so stressful, I'm so tempted to just let this default because I'm so short on time, but man...I really want this to be off my shoulders and off my credit report. It's just so much to take in when I've never had to deal with a legal matter in my life.  Don't understand the process or the jargon. On top of being ill and recently unemployed, I now have this to fight. :/ sorry for the pity party, and thanks again for the info you've been providing me. I'm wondering if I were to call up Midland and tell them my situation if they'd just drop the case, but I have a feeling it would just come up again later. 

@FWM1A

I know this is stressful, with a steep learning curve at warp speed.  Most of us here have been kicked when we're down, way down.  Please do not default! I am not a lawyer (IANAL). You have several choices:

1.)  File an answer to the complaint by deadline with affidavit denying account stated claims to the court and to plaintiff via attorney and remain in court; OR,  

2.)  Prior to deadline to answer complaint, notify plaintiff by letter sent CMRRR to attorney of your election of private contractual arbitration as per cc agreement in AAA or JAMS forum, and requesting plaintiff dismiss;  and if plaintiff declines,

3.) File a motion to compel arbitration in lieu of an answer by deadline to answer complaint which is virtually same motion as motion to compel; OR

4.)  File answer with arbitration as Affirmative Defense, and soon after file motion to compel arbitration. 

 

Fee Waiver application goes to court; info/form here:

http://michiganlegalhelp.org/self-help-tools/miscellaneous/fee-waivers-court-cases

JDB = Junk Debt Buyer

JAMS = Private arbitration forum

You want to appear to be acting in good faith. JAMS is the preferred forum here on CIC as far as I can tell. 

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@FWM1A

You would send a copy of a signed fee waiver, if the judge grants it, to your plaintiff. 

http://courts.mi.gov/Administration/scao/forms/courtforms/general/mc20.pdf

»» GETTING A SIGNED ORDER When you file your affidavit with the court, the clerk of the court will give it to the judge. The judge will make a decision and will sign the order. The clerk of the court will keep the original and return a signed copy to you. The clerk of the court will send a copy to the friend of the court if you filed that copy. You are responsible for sending a copy of the signed order to the other parties involved in the case.

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3 hours ago, FWM1A said:

@Brotherskeeper - this is all very helpful info, thank you. Is there any reason to go with JAMS over AAA for arbitration? I thought the best to go with is AAA. Also, I'm a bit lost regarding what exactly to submit and to whom. If I am correct, can my response to the complaint I received be the MTC arbitration itself? And would the indigency waiver just be sent to the court, or to Midland, their attorneys, and the court? 

Ughhh. This is so stressful, I'm so tempted to just let this default because I'm so short on time, but man...I really want this to be off my shoulders and off my credit report. It's just so much to take in when I've never had to deal with a legal matter in my life.  Don't understand the process or the jargon. On top of being ill and recently unemployed, I now have this to fight. :/ sorry for the pity party, and thanks again for the info you've been providing me. I'm wondering if I were to call up Midland and tell them my situation if they'd just drop the case, but I have a feeling it would just come up again later. 

FW,

I hear what you're saying, but see it through.  Don't be like the 90% that get a default judgment against them.   Even though you may have no assets now and are unemployed,  one day you may have  some assets and a judgement against you  could take those assets away and may even prevent you from getting a decent job.   Hang in there.  I can tell by the way you write that you are an intelligent person and you are capable of handling this.

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@Brotherskeeper@debtzapper @CCRP626 - Thank all of you very much. I feel moronic for not getting this taken care of sooner, but it has been the last thing I have wanted to deal with. I'm sure I'd be capable of this if I didn't have only a couple days days (essentially I have to get something sent out via certified mail TOMORROW). Do you guys think one of the documents in this thread would suffice: 

Like I said, I am SO short on time and I have even more crap to wade through to get back into school (hopefully) for the summer after I medically withdrew a couple semesters back, documentation for THAT is due by Wednesday, as well. This has been a walk through a very unfortunate park, lol. Again, everyone, I cannot stress my gratitude. Thank you for taking the time out of your day(s) to help me. 

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@FWM1A

 (I am not a lawyer.) I believe you could quickly draft a simple, short letter, to send CMRRR to plaintiff via its attorney's address, electing arbitration in JAMS or AAA, based on one of the 3 samples in the thread above. Make certain you refer to the case # listed on your complaint. [RE: Case # xxx Arbitration Demand] It has been suggested that you NOT include a copy of the cc agreement, but quote from the arbitration section, with page and paragraph number, if needed. This heads off plaintiff arguing that you haven't used the applicable agreement. I would also suggest--if you think you can qualify for a court fee waiver and plan to do so--that you include a request--as you are acting in good faith--to have plaintiff pay all the fees as stated:

"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."

Get that out as soon as you can. When were you served with the complaint?

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@FWM1A

Although I hope you don't need to do so, you may amend an answer, without asking for leave to do so, within 14 days. This means you have an option to correct/change your answer if you screw up your first answer.  This may take a bit of the pressure off. 

Rule 2.118 Amended and Supplemental Pleadings

(A) Amendments.

     (1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.

     (4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.

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Your Name/Address

Their Name/Address

_________________, 2016

Claim or Case #_____________________

NOTICE OF ARBITRATION ELECTION

Pursuant to the governing Amazon.com Synchrony Bank Store Card Account Agreement, (" the Agreement", I ELECT arbitration via JAMS to resolve all of our disputes.

As per the Agreement,

" RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; 

• What claims are subject to arbitration

     1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any      other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account..."

The agreement further states, "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. "

I request that you pay all the fees the administrator or arbitrator charges, as per the Agreement. 

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________(Your Name Typed)

Certified Return Receipt #_________________________

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@Brotherskeeper - wow, I logged back in to find a ton of info from you. Thank you, thank you, thank you! I received the complaint on the 17th of March, I believe. So, yeah...definitely need to get this out stat! And the 14 days to correct (I hope I don't have to, either) does take the pressure off. Here's a probably stupid question regarding your bullet point...what claims are subject to arbitration? Again, thank you very much.

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8 minutes ago, FWM1A said:

@Brotherskeeper - wow, I logged back in to find a ton of info from you. Thank you, thank you, thank you! I received the complaint on the 17th of March, I believe. So, yeah...definitely need to get this out stat! And the 14 days to correct (I hope I don't have to, either) does take the pressure off. Here's a probably stupid question regarding your bullet point...what claims are subject to arbitration? Again, thank you very much.

@FWM1A

The bullet point is quoted material (see the quotation marks?) directly from the Amazon/Synchrony arb clause.  It appears the arb clause 2014 and 2015 agreements are the same.  There are no stupid questions; it's how we all learn here. The reason I know about the amendment rules is because we screwed up so royally on our first case and had to amend or it was game over. 

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@FWM1A

Sorry, I misread your comment about what claims are subject to arbitration.  For starters, the amount of the debt and plaintiff's ownership of  the specific account they claim is yours are in dispute. 

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@FWM1A

You can definitely trust whatever @Brotherskeeper  and @CCRP626tell you.   Both are very capable.  BK is not a lawyer, but he is from MI and has a lot of practical experience with MI collection law.   He has helped many MI posters to win their case.   There are also others here who specialize  in arbitration.  You are in good hands.

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@debtzapper - thanks for backing @Brotherskeeper and @CCRP626. :) It's nice to connect with so many people who genuinely care and are kind enough to help the layman. It speaks volumes of their (and your!) character. 

So @Brotherskeeper, I have a few questions if you don't mind taking the time to explain further: 

1) Is that Notice of Arbitration Election all I have to send their lawyers for the time being? Will that short and sweet document be enough? Are there any other alterations I need to make aside from adding my personal info? Sorry I'm being so persnickety - I just want to be 100% sure.

2) Should I change the title to: "Answer to Summons and Complaint; Notice of Arbitration Election" so it is crystal clear that this is in response to their complaint? Might be overkill or totally unnecessary, I don't know.

3) If I understood correctly, I take the waiver/suspension of fees and costs form down to the courthouse and send that as well once I get a signed copy? 

4) To finalize my decision between AAA and JAMS - who (in your experience) is the smarter choice? I feel like I've seen conflicting info over who is the "best" choice with Midland. 

Man, I need to buy you a beer or something! Thanks to all of you, again!

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@Brotherskeeper OH! Also, do I have to sign the Notice of Arbitration Election in front of a notary? Gah, I gotta get some sleep...here's hoping I don't dream in law-speak with all the reading I've been doing on this forum. 

Edit: I just noticed something (doubt it matters) on the documentation that they sent me for the original account - all but the last four digits of the account number is blacked out for some reason...curious.

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8 hours ago, FWM1A said:

@debtzapper - thanks for backing @Brotherskeeper and @CCRP626. :) It's nice to connect with so many people who genuinely care and are kind enough to help the layman. It speaks volumes of their (and your!) character. 

So @Brotherskeeper, I have a few questions if you don't mind taking the time to explain further: 

1) Is that Notice of Arbitration Election all I have to send their lawyers for the time being?  Yes. You actually draft the arb notification letter with 1) your name an address, 2) with Plaintiff's name and address, as it appears on your summons/complaint, and 3) the attorney's name and firm address in the letter heading. You address the envelope to the attorney at the firm's address. To understand this, you are communicating with plaintiff through plaintiff's attorney.  If it isn't too much trouble, it is advised to pick up the green CMRRR card from USPS and include the number in your letter. If not, hand write in the CMRR# at the bottom. Make several copies of the signed letter and envelope. Some posters fax a copy of the notification letter as well as send the hard copy CMRRR.   Will that short and sweet document be enough?  To elect arb ? Yes. You are following the agreement's instructions to notify in writing your "election" of arb. Actually "initiating" arb is another thing--and much more involved.   Are there any other alterations I need to make aside from adding my personal info? Sorry I'm being so persnickety - I just want to be 100% sure.  You won't regret being scrupulous in all things legal. I wasn't able to indent the direct quote from the Amazon agreement. You need to make certain the quote and agreement title are accurate. I'm willing to assist you, but please do not rely solely on my advice or typing skills. "Trust but verify" is good practice here on CIC.

2) Should I change the title to: "Answer to Summons and Complaint; Notice of Arbitration Election" so it is crystal clear that this is in response to their complaint? Might be overkill or totally unnecessary, I don't know.  NO. This letter to plaintiff is to notify election of arb--under the terms of the governing contract. This is not an Answer to their Complaint. Your Answer must be done according to Michigan Court Rules ("MCR"), as must your motion to compel. Those go to the court, with copies to the plaintiff, with proof of service certificate. Rubber meets road here. 

3) If I understood correctly, I take the waiver/suspension of fees and costs form down to the courthouse and send that as well once I get a signed copy? Yes. It is actually an affidavit that has to be notarized. 

4) To finalize my decision between AAA and JAMS - who (in your experience) is the smarter choice? I feel like I've seen conflicting info over who is the "best" choice with Midland.  This is your choice. I have never been through arbitration. My opinion, for what it's worth, is that most experienced people here and at debtorboards.com prefer JAMS. You already have heard and written in this thread that AAA won't agree to hear Midland cases. If you wish to appear to be acting in good faith to get out of court and into a forum you prefer, choosing an available forum might be the better choice.  It may also speed up the resolution of your case. 

Man, I need to buy you a beer or something! Thanks to all of you, again! Your welcome. You can do this, and you will learn some very valuable skills!

 

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8 hours ago, FWM1A said:

@Brotherskeeper OH! Also, do I have to sign the Notice of Arbitration Election in front of a notary?     No notarization is necessary. This is a letter to the plaintiff sent to plaintiff's attorney.   Gah, I gotta get some sleep...here's hoping I don't dream in law-speak with all the reading I've been doing on this forum.  Sleep is always good. Focus on getting an understanding of the process and the steps needed to execute. We'll help. 

Edit: I just noticed something (doubt it matters) on the documentation that they sent me for the original account - all but the last four digits of the account number is blacked out for some reason...curious.  They must black out all but the last 4 digits. Unless under seal, court documents are public. The last 4 digits should be enough to identify the alleged account number--if you recognize or recall those 4 numbers, that is. If not, that's why defendants deny allegations, to make plaintiffs prove their cases with admissible evidence of proof!

 

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