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Just Served in SC by Midland Funding, LLC


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I just got home and found out that I was served. I answered the questionnaire and tried to be as vague as possible, if at any point I was too vague I can supply more information.

Any help as to what to do to proceed would be greatly appreciated.

1. Who is the named plaintiff in the suit? Midland Funding LLC

 

2. What is the name of the law firm handling the suit? *Law Firm, LLC

 

3. How much are you being sued for?  Less than 10k, More than 5k

 

4. Who is the original creditor? Store Credit Card

 

5. How do you know you are being sued? Served

 

 6. How were you served? In person (though not to me directly)

 

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

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I’m aware of, if they called and didn’t leave a message their number was blocked.

 

9. What state and county do you live in? South Carolina

 

10. When is the last time you paid on this account?  According to Exhibit “A” 2014

 

11. What is the SOL on the debt?  3 years

 

12. What is the status of your case? Suit served? Motions filed? Pending/ADR

 

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 respond to the suit? 30 Days

 

We need to know what the "charges" are. Please post what they are claiming.

 

(1)    Plaintiff is an LLC in Delaware

 

(2)    Defendant is a resident of (my location)

 

(3)    This is an action for recovery of an indebtedness due unto the Plaintiff arising out of the issuance of a credit card to the Defendant at the request of the Defendant

 

(4)    Original Creditor issued a credit card to the Defendant in the Defendant’s name on (date).

 

(5)    Defendant was provided periodic statements which were acknowledged by using the account and/or making payments

 

(6)    Date last payment was received, date charged off and amount claimed

 

(7)    The account was subsequently assigned to the Plaintiff making the Plaintiff the holder of the account

 

(8)    Paragraph admitting Exhibit “A” into evidence (Exhibit “A” is an Affidavit of Account written by a Legal Specialist for MCM)

 

(9)    Pursuant to the credit card agreement and disclosure, the Defendant agreed to pay all collection costs.  On information and belief, the Notice of Consumer’s Rights to Cure, as contemplated under S.C. Code Sections §§ 37-5-110 and 37-5-111, was sent to the Defendant or was not required.

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. An Affidavit of Account (Exhibit “A”)

 

1. Listing OC account number, MCM number, and stating that the Plaintiff is the current owner of and/or successor to the account.

 

2. Legal Specialists qualifications and the “evidence” to follow

 

3. MCM’s records show that Defendant(s) owed a balance of $$ as of 2016

 

4. Based on review of MCM’s business records 1) account opened date 2) last payment date 3) account charge off date

 

5. MCM’s records state that this action is based upon a revolving credit agreement entered into between Defendant(s) and the original credit grantor. MCM’s records further state the Defendant(s) used or authorized the use of the credit card account but failed to make the payments due pursuant to the agreement.

 

(Included in the summons is a Civil Process receipt, a notice required by the FDCP, and a page explaining ADR and that I MUST COMPLY)

 

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1 minute ago, ServedInSC said:

I do not have a copy of the original CC agreement. 

I do have bank records and they show that it was paid.

Go to the Consumer Financial Protection  Bureau website and check the credit card database for a copy of the credit card agreement.   It should be for the same year you defaulted.   Read the agreement to see if it contains an arbitration provision.

If you don't mind my asking, with which company was the agreement?

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Just now, BV80 said:

Go to the Consumer Financial Protection  Bureau website and check the credit card database for a copy of the credit card agreement.   It should be for the same year you defaulted.   Read the agreement to see if it contains an arbitration provision.

If you don't mind my asking, with which company was the agreement?

GE Capital Retail Bank  which then became Synchrony Bank in regards to an Amazon.com store account

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I'm just going to paste in full what it says.

• 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, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case
in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may
require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope
of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument
that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
• No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT
OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN
ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A
SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.
If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s
determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal
government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to
compel arbitration of any claim brought by such an agency.
• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.
Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION
DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA),
1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018,
www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration,
which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of
legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but
may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator
charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you
prevail on claims you assert against us in an arbitration proceeding which you have commenced.
• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the
FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the
arbitrator’s award.
• How to reject this section
You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To
reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject
this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012,
Orlando, FL 32896-5012. This is the only way you can reject this section.

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Midland will not arbitrate, and even more, AAA will not accept a case with them.  Therefore, I would file a Motion to Compel arbitration with the court. There are many samples on the board.  This will ask the court to order the case to arbitration.  Once that is granted, I will file with AAA and midland will be stuck between a rock and hard place.  Their only out will be to dismiss, or pay thousands to comply with AAA.  99% of the time they choose dismissal.

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@ServedInSC

Here's a sample MTC arbitration.  You will file it in lieu of filing an answer to the complaint.   Change the arbitration agreement language in the sample to the language in your agreement. 

After all the U.S. Supreme Court case law, you can add South Carolina case law, if you choose.

South Carolina law generally favors arbitration. McMillan v. Gold Kist, Inc., 353 S.C. 353, 359, 577 S.E.2d 482, 485 (Ct.App.2003).

We observe at the outset that it is the policy of this state to favor the arbitration of disputes. Toler's Cove Homeowners Association, Inc. v. Trident Const. Co., Inc., 355 S.C. 605, 612, 586 S.E.2d 581, 585 (2003).

You should also include a notice of the motion.   Here's a copy of a notice filed in Charleston to give you an idea of what to write.

http://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocAsPDF?viewertype=cms&ctagency=10002&casenumber=2012CP1006205&docseq=P28A1

 

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16 hours ago, ServedInSC said:

I do not have a copy of the original CC agreement. 

I do have bank records and they show that it was paid.

@ServedInSC  Are you saying this account was paid off?  Or just paid upon?

In addition to the arbitration recommendations...

Take a look at the CFPB order against midland, and make sure that they have complied with every bullet point, starting on page 31.  If they did not comply, it is worth filing a complaint with the CFPB, specifically outlining their misrepresentations.
http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

 

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4 hours ago, Credithis said:

You say you have your bank records and it says it was paid? Was this paid off? If so, this could get interesting. Did you ever file a complaint or have an issue with the merchant?

I should have been more clear, I apologize. 

The balance was paid upon.  

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20 hours ago, fisthardcheese said:

Midland will not arbitrate, and even more, AAA will not accept a case with them.  Therefore, I would file a Motion to Compel arbitration with the court. There are many samples on the board.  This will ask the court to order the case to arbitration.  Once that is granted, I will file with AAA and midland will be stuck between a rock and hard place.  Their only out will be to dismiss, or pay thousands to comply with AAA.  99% of the time they choose dismissal.

Quick question @fisthardcheese,

In the CC agreement it says I can go with either AAA or JAMS.  From what I can gather JAMS is the more expensive of the two for the JDB especially seeing how they do not have an office in my area. Would I be better off going with JAMS or AAA?

*Edit* After more research, I can see why AAA is the better choice in the matter. 

Edited by ServedInSC
Clarification
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Also, @BV80 Should I drop the second paragraph in the following about fraud as it doesn't pertain, or leave it in for good measure to remind the court?

7. South Carolina law generally favors arbitration.  McMillan v. Gold Kist, Inc., 353 S.C. 353, 359, 577 S.E.2d 482, 485 (Ct. App. 2003).  In interpreting agreements within the scope of the FAA, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.”  Stokes v. Metropolitan Life Ins. Co., 351 S.C. 606, 610, 571 S.E.2d 711, 714 (Ct. App. 2002) (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).  Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.  Zabinski v. Bright Acres Associates, 346 S.C. 580, 597, 553 S.E.2d 110, 118 (2001).  Further, unless the Court can say with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the dispute, arbitration should be ordered.  Id. at 597, 553 S.E.2d at 118.

A written provision in any contract evidencing a transaction involving commerce to settle by arbitration shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.  9 U.S.C.A. § 2 (2000).  A party cannot avoid arbitration through rescission of an entire contract when there is no independent challenge to the arbitration clause itself.  There must be fraud in the inducement of the arbitration agreement to avoid arbitration of the contract.  South Carolina Pub. Serv. Auth. v. Great Western Coal (Kentucky), Inc., 312 S.C. 559, 562-63, 437 S.E.2d 22, 24 (1993) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.E.2d 1270 (1967)).  “Fraud as a defense to an arbitration clause must be fraud specifically as to the arbitration clause and not the contract generally.”  South Carolina Pub. Serv. Auth., id. at 563, 437 S.E.2d at 24 (emphasis added).

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@BV80 @fisthardcheese and everyone else that has helped so far. 

I have attached what I have so far and could use a hand looking them over to see if I missed anything or what else I need to have to proceed.

Again thank you all for the help.

Exhibit A is "lawyer letter" and Exhibit B is the PDF of the Cardmember Agreement

Lawer letter.pdf

Document 1.pdf

 

 

Also, do I still have to file an Answer or does the motion for arbitration count in lieu of an answer?

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@ServedInSC

I'll let @fisthardcheese comment on the lawyer letter.

In regard to your MTC, make the court header exactly like the header on the plaintiff's complaint.  Also, just to be precise, italicize the party names in each of the cited case law.

For instance:

Toler's Cove Homeowners Association, Inc. v. Trident Const. Co., Inc., 355 S.C. 605, 612, 586 S.E.2d 581, 585 (2003).

Toler's Cover Homeowner's Association, Inc. v. Trident Const. Co., Inc. are the party names in that particular case (just the names, not the numbers).  All of the party names in each cite should be italicized (both for South Carolina and the Supreme Court).  Also, notice how it's underlined.  Example:

Moses H. Cone, supra

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, (2010)

 

 

 

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28 minutes ago, BV80 said:

@ServedInSC

I'll let @fisthardcheese comment on the lawyer letter.

In regard to your MTC, make the court header exactly like the header on the plaintiff's complaint.  Also, just to be precise, italicize the party names in each of the cited case law.

For instance:

Toler's Cove Homeowners Association, Inc. v. Trident Const. Co., Inc., 355 S.C. 605, 612, 586 S.E.2d 581, 585 (2003).

Toler's Cover Homeowner's Association, Inc. v. Trident Const. Co., Inc. are the party names in that particular case (just the names, not the numbers).  All of the party names in each cite should be italicized (both for South Carolina and the Supreme Court).  Also, notice how it's underlined.  Example:

Moses H. Cone, supra

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, (2010)

 

 

 

@BV80 Edits are made. Let me know if that is presentable.

Document 1new.pdf

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7 minutes ago, BV80 said:

@ServedInSC

Just underline the numbers after the party names in the case, and I think it looks good.   Take a look at how I underlined the party names and numbers in Toler's Cove.    The party names are italicized but the whole thing is underlined.

 

 

 

@BV80 Thanks again, applied the edits and changed the font to times 12 and double spaced the lines to make it line up more with what I was served with.

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3 hours ago, ServedInSC said:

Also, do I still have to file an Answer or does the motion for arbitration count in lieu of an answer?

This varies by jurisdiction.  Some, like Florida, you cannot file an answer or you waive your right to arbitration.  I believe it has to be a demurrer or a motion to dismiss to actually stop the clock on the time you have to respond to the complaint.  I would contact a local legal aid organization and get some SC-specific advice, unless someone here knows SC specifically.

This exact issue nearly torpedoed our case, but the clerk counted our MTC as a 'first appearance', which saved us from a default even though MTCs apparently aren't considered 'responsive pleadings', iirc the lingo the clerk used.  My opinion is that unless your state is like Florida and filing an Answer waives your right to arbitration, file the Answer just to be safe.  Trying to be fancy and filing a mtc in lieu of an answer led to a couple days of intense stress for me that I could have avoided with 5 minutes of trivial effort (that I ended up having to do anyway).  It's real high on my list of things to never go through again.

9 hours ago, BV80 said:

@fisthardcheese

Doesn't the OP need to include an order for the judge to sign?

I think this is a local rule thing.  I did with ours but the judge didn't use it.  Based on everything the judge included in the court's order in our case, it'd be pretty much impossible for the court to use one akin to the templates I've seen here, so it's really just a matter of adhering to the court's rules.  Still, it's simple to include a '[Proposed] Order' as an abundance of caution measure.

Another tidbit that was in our local rules is the requirement to send a copy of the motion to the particular department handling the case (not the same as filing with the courthouse).  So definitely take the time to read the local rules.

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