WinInAZ

Being Sued by Midland Funding in Arizona

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I am being sued by Midland Funding, LLC. I could use some help on filing my answer. I was served on Sept 18, 2016. In Arizona you have 20 days to file an answer so the clock is ticking. I found this questionnaire somewhere on this site, so I answered the questions. I've spent the last couple of days trying to read through all of the info on this board, as well as one other, but I'm running out of time, and I'm still not sure what I should respond in my answer. 

I went through this a few years ago with another jdb, and paid an attorney, who in the end did absolutely nothing that we agreed upon. Instead he told the opposing attorneys to go after my husband because "the guy is a d**k"  This debt still shows on my credit report as owed, and I paid the attorney more than the debt. 

I just don't want to end up in the same mess. For this debt, I'm willing to settle, but I don't want a judgement on my credit. If anyone can help, please advise. Also Midland is the third creditor to try to collect on this debt.

Here is my response to the questions:

I don't know if this means anything, but at the bottom of #12, in my case information it says  Notice                   Pending Dismissal of Lawsuit

1. Who is the named plaintiff in the suit?

  MIDLAND FUNDING LLC, a foreign entity
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Barry Bursey, Esq
3. How much are you being sued for? $625.67
4. Who is the original creditor? (if not the Plaintiff) BARCLAYS BANK DELAWARE JUNIPER
5. How do you know you are being sued? (You were served, right?) I was served on 9/18/2016
6. How were you served? (Mail, In person, Notice on door) In person
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?

Didn’t respond to notices or phone calls. Got one call at work, and told them not to call me at work again. This was about a week before I was served
9. What state and county do you live in?

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

March or April 2012
11. What is the SOL on the debt? To find out: 

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

Case Information

Case Number:    xxxxxxx Judge:   Conti, Frank

File Date:          9/9/2016            Location:           Dreamy Draw Justice Court

Case Type:        Justice Civil      Case Status:      01 - New Case

Party Information

Party Name                                         Relationship               Sex       Attorney

MIDLAND FUNDING LLC         Plaintiff                        N/A     Barry Bursey

xxxxxxxxxxxxxxxxxxxx                Defendant                  N/A       Pro Per

Disposition Information

There are no disposition notes on file

Case Calendar

There are no calendar events on file

Events

Event Type                              Sub Type                           Judge     Result             Result Date

Affidavit of Service        Private Process               Conti       Served            9/18/2016

Notice                        Pending Dismissal of Lawsuit           Conti               //

Judgments

There are no judgments on file

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? 

20 days from September 18th (by 10/7) to file answer

No, I did not receive an interrogatory
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence and no exhibits

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Here is the list of allegations, with question marks where the answer should be.

1. Plaintiff is a foreign entity – (yes, I guess)

2. defendant(s) is are (husband and wife and) resident9s) of Maricopa – Dreamy Draw County, Arizona. Acts of individual defendants occurred on behalf of their respective marital communities. If this debt is a pre-marital debt, the non-debtor spouse is joined only as a necessary party pursuant to the law affecting community property. (I am separated and have no contact with my husband. He is not named, it says “John Doe” How should I answer this?) ( ? )

3. This court has subject matter and personal jurisdiction. (I’m assuming I say yes?)

4. All pertinent acts and omissions giving rise to this lawsuit occurred in Maricopa – Dreamy Draw County, Arizona. (  ?  )

5. All conditions precedent to Plaintiff’s right of recovery have occurred. ( ? )

6. By accepting and using an offered extension of credit, Defendant(s) entered into a credit agreement with BARCLAYS BANK DELAWARE JUNIPER under account number ending in xxxx 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 Debt. The present amount owed under the terms of the Debt, after all setoffs, is $625.67. ( ? )

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. WHEREFORE, Plaintiff prays as follows.

1. For judgment against Defendant(s) in the sum of principal balance of $625.67, minus any payments made;

2. For costs incurred herein; and

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

 

I wanted to add this link. It is a document containing images of all the documents I was served.

I hope it works okay.

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Barclays uses AAA in their contracts.  Find the account agreement that governs your account.  Did Midland include the account agreement with the complaint?  They usually do ever since the CFPB consent order.

Read this thread, and maybe this one, and search for others on the forum.

Send notice to Bursey, asap, indicating that you invoke the private contractual arbitration provisions of the account agreement and that you elect private arbitration, pursuant to the account agreement, as the forum to hear any claims or disputes.

Shortly thereafter, file your answer and a motion to compel arbitration at the same time.  If you delay filing your motion to compel arbitration, Bursey may likely quickly file a motion for a summary judgment before you can file your motion.

Research other sample answers and motions to compel arbitration on the forum.  Include in your answer as an affirmative defense that the Plaintiff's claims are subject to private contractual arbitration pursuant to the account agreement.

Note that Midland is not in good standing with AAA, this may or may not complicate things to your advantage or disadvantage down the road.

BTW,

Notice                        Pending Dismissal of Lawsuit           Conti               //"

is just a place holder put in the docket by the court to remind them to send the Plaintiff a notice of dismissal when the time for service has expired.  You were served in time, so this line in the docket means nothing.

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+1 on getting this thing into arbitration.  For a $625 debt, they will drop this like a hot rock as soon as the court grants your MTC.

This is our most recent arbitration success story here in AZ.  Just do what she did.

 

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5 hours ago, Harry Seaward said:

+1 on getting this thing into arbitration.  For a $625 debt, they will drop this like a hot rock as soon as the court grants your MTC.

This is our most recent arbitration success story here in AZ.  Just do what she did.

 

The NACA listserv has several posts that state that AAA will no longer accept arbitration requests in Midland cases.

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8 hours ago, Xerxes said:

Barclays uses AAA in their contracts.  Find the account agreement that governs your account.  Did Midland include the account agreement with the complaint?  They usually do ever since the CFPB consent order.

 

No midland did not include the agreement. I think this card was opened in 2008, but I can't find a 2008 agreement anywhere.

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1 hour ago, neweuquol said:

The NACA listserv has several posts that state that AAA will no longer accept arbitration requests in Midland cases.

Yup but that is Midland's problem if the court compels them to comply with the contract.  Filing in JAMS is better because it is more expensive and Midland simply folds immediately when faced with it.

14 minutes ago, WinInAZ said:

No midland did not include the agreement. I think this card was opened in 2008, but I can't find a 2008 agreement anywhere.

Go to the CFPB website and download the one that was in force in 2008.  It may be from 2006 or 2007.  Card companies don't always update their agreements yearly.  It is sometimes every two to three years and so you may need the one from a year prior that was in force until it was updated after you opened the account but before you defaulted. (depending on how long the account was open)

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17 minutes ago, WinInAZ said:

I already looked there. All I can find is 2016 agreements. Sorry for being so clueless.

http://www.consumerfinance.gov/credit-cards/agreements/issuer/barclays-bank-delaware

 

There is an archive of old agreements but it only goes back to 2011.  Use the one from 2012 that was in force when you defaulted.  Since there was a more current one than when you opened it that would be the one that applies to the account.

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I can't find any archives. I did find this, but it is a Pricing Supplement to the Cardmember Agreement.

I'm really hesitant to go through this whole process. I only have a couple of days, and after spending days reading and researching, I still am not sure exactly how to proceed. I do not have $250, so I'm not sure that I could go the arbitration route. 

If I simple file my answer, is it likely that Midland will settle, without pursuing a judgement?

If I had the next two days free, and $250, I would most definitely go the arbitration route, but I am working two jobs, and I cannot take time off both. I'm trying to get tonight off from my second job, so I could spend a couple hours on this paperwork.  I'm fearful that I will run out of time.

 

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1 hour ago, WinInAZ said:

I can't find any archives. I did find this, but it is a Pricing Supplement to the Cardmember Agreement.

I'm really hesitant to go through this whole process. I only have a couple of days, and after spending days reading and researching, I still am not sure exactly how to proceed. I do not have $250, so I'm not sure that I could go the arbitration route. 

If I simple file my answer, is it likely that Midland will settle, without pursuing a judgement?

If I had the next two days free, and $250, I would most definitely go the arbitration route, but I am working two jobs, and I cannot take time off both. I'm trying to get tonight off from my second job, so I could spend a couple hours on this paperwork.  I'm fearful that I will run out of time.

 

Did you miss a number in the amount you are being sued for or is it really less than $700.00?   Collection attorneys work on a contingency so I cannot see them fighting much for $700.00.   

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3 hours ago, WinInAZ said:
 

I'm really hesitant to go through this whole process. I only have a couple of days, and after spending days reading and researching, I still am not sure exactly how to proceed.  If I had the next two days free, and $250, I would most definitely go the arbitration route, but I am working two jobs, and I cannot take time off both.

The summons states;

"When calculating time, do not count the day you were served with the summons.  If the last day is a Saturday, Sunday, or holiday, you will have until the next working day to file your answer."

By my count, if you were served on the 18th of last month, then September 19th is day 1 and October 8th (a Saturday) is day 20.

Monday October 10th is a holiday. So, your answer is due no later than Tuesday, October 11th.

An answer is a pretty simple document.  If you are pressed for time, you can file a simple answer by itself, and then take some more days to file a motion to compel arbitration.

 

Quote

If I simple file my answer, is it likely that Midland will settle, without pursuing a judgement?

Bursey will probably want you to agree to a stipulated judgment, which is the same as a judgment after trial, and the same as any other judgment on your credit report. You have no leverage now.  They have already spent the money to file the complaint and pay the process server.  They will be happy to garnish your wages until the judgment is paid.

If you have no money, what sort of settlement do you have in mind?   You can listen to any offers they have at the pre-trial conference, or earlier if you want to contact them.  But if you file an answer and don't file a motion to compel arbitration, they may file for a summary judgment before you even get to the pre-trial conference.

Since they didn't submit any documents or evidence with the complaint, they can't file for a summary judgment before they disclose the evidence.  So, you don't really have to worry about a summary judgment motion until you receive additional disclosures.  You probably have much more time to deal with this than you think.  Their complaint is really weak, with only a single cause of action (contract).  This is not what we typically see in Midland cases lately.  This looks like a case where they were going for a default judgment from the start, and any push back from you at all (especially a motion to compel) may end the case really quickly.

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1 hour ago, neweuquol said:

Did you miss a number in the amount you are being sued for or is it really less than $700.00?   Collection attorneys work on a contingency so I cannot see them fighting much for $700.00.   

No, it's really under $700. So you think I should just file my answer, or do you think I should go the arbitration route?

Sorry, I didn't respond right away. I'm at work.

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1 hour ago, Xerxes said:

The summons states;

"When calculating time, do not count the day you were served with the summons.  If the last day is a Saturday, Sunday, or holiday, you will have until the next working day to file your answer."

By my count, if you were served on the 18th of last month, then September 19th is day 1 and October 8th (a Saturday) is day 20.

Monday October 10th is a holiday. So, your answer is due no later than Tuesday, October 11th.

An answer is a pretty simple document.  If you are pressed for time, you can file a simple answer by itself, and then take some more days to file a motion to compel arbitration.

 

Bursey will probably want you to agree to a stipulated judgment, which is the same as a judgment after trial, and the same as any other judgment on your credit report. You have no leverage now.  They have already spent the money to file the complaint and pay the process server.  They will be happy to garnish your wages until the judgment is paid.

If you have no money, what sort of settlement do you have in mind?   You can listen to any offers they have at the pre-trial conference, or earlier if you want to contact them.  But if you file an answer and don't file a motion to compel arbitration, they may file for a summary judgment before you even get to the pre-trial conference.

Since they didn't submit any documents or evidence with the complaint, they can't file for a summary judgment before they disclose the evidence.  So, you don't really have to worry about a summary judgment motion until you receive additional disclosures.  You probably have much more time to deal with this than you think.  Their complaint is really weak, with only a single cause of action (contract).  This is not what we typically see in Midland cases lately.  This looks like a case where they were going for a default judgment from the start, and any push back from you at all (especially a motion to compel) may end the case really quickly.

Okay, thank you so much Xerxes. I was feeling really stressed, thinking I only had until Thursday or Friday to file. 

I though I read someones answer here saying to file for arbitration first, then submit my answer. Exactly what steps should I take? 

I felt their case was weak too. They are also the third collector on this debt, so it's possible they don't have much.

I will look into invoking arbitration. I'm not a good letter writer and was hoping for a sample letter invoking arbitration. Any chance someone could supply that?

 

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These bottom feeders are really on a role. MIDLAND and BARRY BURSEY served my fiance' my SUM/COMPLAINT on Sept.25, 2016 for a $633.39 from CREDIT ONE BANK..  I plan on filing my answer tomorrow.

 I'm so exhausted from figuring out my strategy Arbitration vs Deny.  I thought to do a flat denial but then I got confused because all the talk about what is really considered an Affirmative Defense and if I don't include one I'll be in big trouble then.

One thing that's interesting is on my Complaint in the part that has the case number on the right hand side it says  Complaint (Contract)  FAST TRACK, what's that ?  Also. how do I address the part about " defendant and husband, John Doe, residents of Maricopa   .....respective marital communities and all that?"  I got married in 1993, and we split in 94.  Never acquired anything with him nor has he ever lived in AZ.    The ANSWER forms are so weird for AZ with no space to really state each line reply.  Do I just put I DENY allegations 2-....9 lacks sufficient knowledge and all that good stuff; or do I also have to put an Affirmative Defense.  If so, how strong is Lack of Standing.  I've read on some forum that it's not a good route to go, others say it's the only route, and some say it's not even an Affirmative Defense at all.  Ayeye, so confused and tired of this mess already!  But def can't afford to go down without a fight.  I'm working part-time min wage and just barely got out of  eviction status.

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7 hours ago, neweuquol said:

Did you miss a number in the amount you are being sued for or is it really less than $700.00?   Collection attorneys work on a contingency so I cannot see them fighting much for $700.00.   

They will in AZ. I've seen it a dozen times.  I've even seen them follow these low dollar debts to appeal.  The collection attorney has no say in the matter.  If midland tells them to litigate, they will do it or they get cut out of the 98% default gravy train.

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Are you not going to elect Arbitration? From the advice I've read here, it seems to be the best way to go for small amounts, such as ours.

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It sounds good but all the contract stuff confused me.  Someone said they are denying ARB now through AAA or something.  Also, I'm afraid if I loose I'll have to pay them scumbags.  Haven't had a chance to lookup arbitration fees to file.  Also, still trying to figure out if you file it separately or within the answer.  And do you still have to state an Affirmative dense?  Does that lay burden of proof on me?

    I read here:  https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors  seems alot of people say DENY everything, make them prove it and when it goes to court hit them with everything.  Maybe because they can't present new evidence at that point or they likely don't have proof.  Not sure.  Maybe I'll go with arbitration after all. 

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17 hours ago, Harry Seaward said:

+1 on getting this thing into arbitration.  For a $625 debt, they will drop this like a hot rock as soon as the court grants your MTC.

This is our most recent arbitration success story here in AZ.  Just do what she did.

 

Okay, I followed your advice and spent most of my day reading through this arbitration success story. I do not claim to really understand what I'm doing, but i did come away with this.  If I could get some feedback, I would like to send this to Bursey tomorrow. 

In the agreement it says AAA, but I read that I should use JAMS. Is this correct?

Just for clarification.  I send this CCRR to the attorney (plaintiff) and send a copy to the court, then follow the next day with my answer, with CCRR to attorney and file with the court?

 

Your Name/Address

Their Name/Address

_________________, 2016

 

Claim or Case #_____________________


NOTICE OF ARBITRATION ELECTION

Pursuant to Barclays Bank Delaware cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial."

The agreement further states, "ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT."

 

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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43 minutes ago, GRRRR101 said:

These bottom feeders are really on a role. MIDLAND and BARRY BURSEY served my fiance' my SUM/COMPLAINT on Sept.25, 2016 for a $633.39 from CREDIT ONE BANK..  I plan on filing my answer tomorrow.

 I'm so exhausted from figuring out my strategy Arbitration vs Deny.  I thought to do a flat denial but then I got confused because all the talk about what is really considered an Affirmative Defense and if I don't include one I'll be in big trouble then.

One thing that's interesting is on my Complaint in the part that has the case number on the right hand side it says  Complaint (Contract)  FAST TRACK, what's that ?  Also. how do I address the part about " defendant and husband, John Doe, residents of Maricopa   .....respective marital communities and all that?"  I got married in 1993, and we split in 94.  Never acquired anything with him nor has he ever lived in AZ.    The ANSWER forms are so weird for AZ with no space to really state each line reply.  Do I just put I DENY allegations 2-....9 lacks sufficient knowledge and all that good stuff; or do I also have to put an Affirmative Defense.  If so, how strong is Lack of Standing.  I've read on some forum that it's not a good route to go, others say it's the only route, and some say it's not even an Affirmative Defense at all.  Ayeye, so confused and tired of this mess already!  But def can't afford to go down without a fight.  I'm working part-time min wage and just barely got out of  eviction status.

@GRRRR101

Start your own thread. Things get way to confusing in these threads with only one case, let alone two. 

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26 minutes ago, WinInAZ said:

Okay, I followed your advice and spent most of my day reading through this arbitration success story. I do not claim to really understand what I'm doing, but i did come away with this.  If I could get some feedback, I would like to send this to Bursey tomorrow. 

In the agreement it says AAA, but I read that I should use JAMS. Is this correct?

Just for clarification.  I send this CCRR to the attorney (plaintiff) and send a copy to the court, then follow the next day with my answer, with CCRR to attorney and file with the court?

 

Your Name/Address

Their Name/Address

_________________, 2016

 

Claim or Case #_____________________


NOTICE OF ARBITRATION ELECTION

Pursuant to Barclays Bank Delaware cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial."

The agreement further states, "ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT."

 

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 #_________________________

This is fine. Way more wordy than necessary, but no harm done and it will do the job. 

(There's nothing that expressly says they are required to stay proceedings. That's the court's job. )

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Also, don't elect JAMS unless the agreement provides for that. You have to start with whatever is in the agreement. If AAA rejects the case, the ball will be back in Midland's court to decide what they will do next. 

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23 minutes ago, Harry Seaward said:

@GRRRR101

Start your own thread. Things get way to confusing in these threads with only one case, let alone two. 

Sorry, I'm new to these boards.  Don't really know the rules, just wanted a little help.   Geesh!

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2 minutes ago, GRRRR101 said:

Sorry, I'm new to these boards.  Don't really know the rules, just wanted a little help.   Geesh!

No worries. You're going to get the best help if you have your own thread. Plus it's only fair to the person that started this thread to keep the confusion to a minimum, just like we would do for you in your own thread. 

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