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Sued by Midland Funding in Colorado, file a demurrer or simple civil answer?


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1. Who is the named plaintiff in the suit?   MIDLAND FUNDING

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)    FENTON & MCGARVEY, LOUISVILLE KY

3. How much are you being sued for?  $578.23

4. Who is the original creditor? (if not the Plaintiff)  GE CAPITAL RETAIL BANK PAYPAL SMART CONNECT

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  NONE

9. What state and county do you live in?  COLORADO, LARIMER

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  NOT SURE & NOTHING ON PETITION

11. What is the SOL on the debt? To find out:  6 YRS

Statute of Limitations on Debts

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  OC, NO, CA, YES

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?  UNTIL DEC. 15TH

 

Going to file answer tomorrow but should I file a demurrer rather than the simplified civil answer because there were no exhibits attached to the complaint to support their claims:

1. upon information and belief, defendant(s), XXXXXXXXX reside(s) at XXXXXX. Venue is proper in Larimer FC county, as the defendant(s) is/are located in Larimer FC county, Colorado and /or the contract was executed in Larimer FC County, Colorado.

3. The amount claimed from defendant)s), XXXXXX is $578.32, plus costs and any other items allowable by statue of specific agreement.  The original creditor was  GE CAPITAL RETAIL BANK PAYPAL SMART CONNECT, account number **************2693

4. Such claims arises from either failure to make payment on account obtained by defendant(s) pursuant to an agreement or a statement for sums due was presented to defendant(s), there was agreement by defendant(s) that the account is correct and a result of any breech of agreement, or the amount based on the account stated.

5. defendant(s) is/are in default in accordance with the terms for payment or have failed to pay the account.  Plaintiff is entitled to damages as a result of any such agreement, or the amount based on account stated.

#1. I do live in Larimer county,  I did not sign any contract in Larimer county with midland or GE Capital & there is no documentation to support that I did that is part of the complaint.

#3. There is no documentation to support claim that is part of the complaint.

#4. There is no documentation to support claim that is part of the complaint.

#5. There is no documentation to support claim that is part of the complaint.

They attached  a Answer Under Simplified Civil Procedure form  to the summons.  Do I have to use that form if I don't file a  demurrer?

Should I also file a counter claim and ask for damages?

 

Mahalo in advance!

Answer Under Simplified Civil Procedure

C R C C P 3 Answer Under Simplified Civil Procedure R10 13.pdf

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Here's what I would do. especially for a debt under $600.  Look at the agreement, and see if there is an arbitration clause.  If there is, I would file an answer, and also file a Motion to Compel Arbitration.   Arbitration in JAMS or AAA will cost them way more than $600, so they won't do it.  If you force them into the arbitration box, and they refuse to pay, their lawsuit will essentially be over.

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File a general denial. admit to name, county/venue and that is it. You don't need to answer each number, just a general denial in a simplified civil court. 

Affirmative defenses.

1. Defendant has elected PRIVATE CONTRACTUAL ARBITRATION WITH JAMS PER agreement. 

2. Plaintiff lacks Standing. 

then follow it with a motion to compel private contractual arbitration. 

call your court. If they charge you for each motion, you may want to skip the answer since that will cost you 250 or so, and go straight to the motion. Make sure you get a date for your motion to be heard.  The filing of a motion will stay the case (means you don't need that answer in until the judge decides the motion)  I would have the answer ready to file in the rare instance your motion would be denied.  

There are several samples of the motion throughout this fourm.

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  • 3 weeks later...

Update on my case.

 

Files motion to demand arbitration, the judge gave the Lawyer time to answer respond to the motion.  The lawyer called me today & asked if I really wanted to follow through with arbitration & that I understand that if I lose I will have to pay the arbitration costs.  He said he has all the paper work ie; statements, etc proving it's is in fact my account (which he didn't provide when he filed the suit originally. there was no paper work) He then offered to settle today before he filed with JAMS & paid the $1200 fee, which he again stated that I would have to pay if I lost arbitration.  I told him I will read the paperwork when I get it.

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I have had numerous accounts deleted , one from midland funding. I have another that they apparently got a judgment against me with out notifying me at all and was 3 years ago. I was pulling my credit with mortgage broker and it shows a judgement. i sent them a dispute letter last week but i  think they have moved to a new address. 

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9 hours ago, robinsonmac said:

The lawyer called me today & asked if I really wanted to follow through with arbitration & that I understand that if I lose I will have to pay the arbitration costs. 

That is NOT true.  JAMS fees for consumers are capped at $250 and they cannot be awarded the arbitration fees in the case.  Make sure he knows you KNOW that.  He is hoping you don't and panic and settle.

9 hours ago, robinsonmac said:

He said he has all the paper work ie; statements, etc proving it's is in fact my account (which he didn't provide when he filed the suit originally. there was no paper work)

The paperwork he has is hearsay until a court says it isn't.

9 hours ago, robinsonmac said:

He then offered to settle today before he filed with JAMS & paid the $1200 fee, which he again stated that I would have to pay if I lost arbitration.

I would counter offer with a mutual walkaway and a dismissal with prejudice based on knowing that my fee is capped at $250.  See if he blinks.

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Called the lawyer back & he said the same thing.  That if I lose in arbitration I have to pay all the fees plus the amount in dispute. The $250 cap is just on the Arbitration initiation fee.  Offered to settle again & asked if I wanted him to email me the paper work he got from the OC & or Midland, monthly statements(he said they were in bulk), bill of sale, etc...  Should get them next week. 

Another question, since they didn't include any of the paperwork when they originally filed the lawsuit are they in violation of the consent order?

Thanks,

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1 hour ago, robinsonmac said:

Called the lawyer back & he said the same thing.  That if I lose in arbitration I have to pay all the fees plus the amount in dispute. The $250 cap is just on the Arbitration initiation fee.  Offered to settle again & asked if I wanted him to email me the paper work he got from the OC & or Midland, monthly statements(he said they were in bulk), bill of sale, etc...  Should get them next week. 

Another question, since they didn't include any of the paperwork when they originally filed the lawsuit are they in violation of the consent order?

Thanks,

Does your agreement allow for JAMS?  If so, this is from the JAMS Consumer Minimum Standards:

7.  With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

https://www.jamsadr.com/consumer-minimum-standards/

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21 hours ago, robinsonmac said:

Called the lawyer back & he said the same thing.  That if I lose in arbitration I have to pay all the fees plus the amount in dispute.

He is 100% wrong or doesn't know what he is talking about.    The consumer portion is capped at $250 PERIOD. 

21 hours ago, robinsonmac said:

Another question, since they didn't include any of the paperwork when they originally filed the lawsuit are they in violation of the consent order?

Only if CO requires it be attached to the complaint.  The consent order merely states they have to have it to proceed in suit.  He is saying he has it now so the court isn't going to get their panties in a wad because you haven't gone to trial yet.  If he had shown up to trial without the paperwork that would be a violation of the order.

12 hours ago, robinsonmac said:

He is really pushing for me to settle.

Of course he is.  Midland has not arbitrated with ANYONE.  He knows that.  My settlement offer would be a mutual walkaway, deletion of any trade line, no 1099-C and they cannot sell the account as the amount is disputed.

12 hours ago, robinsonmac said:

What is the cost of arbitration besides the filing fee? 

Midlands total cost would be around $5000 for a full case.

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On 12/30/2016 at 1:53 PM, robinsonmac said:

Called the lawyer back & he said the same thing.  That if I lose in arbitration I have to pay all the fees plus the amount in dispute. The $250 cap is just on the Arbitration initiation fee.  Offered to settle again & asked if I wanted him to email me the paper work he got from the OC & or Midland, monthly statements(he said they were in bulk), bill of sale, etc...  Should get them next week. 

Another question, since they didn't include any of the paperwork when they originally filed the lawsuit are they in violation of the consent order?

Thanks,

Have you recorded these calls?  Or maybe correspond with the lawyer on paper, or by email, so you have proof he is LYING to you about you having to pay arb fees if you lose.   He is violating the FDCPA by making these false statements.  More leverage for you, if you have proof.

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Update to case:

Received the Paper work from the Lawyer today,

It contains :

  • A settlement letter saying before he files initiation document with JAMS they want to settle because I am requesting arbitration from info I got on the internet & that the arbitration costs are generally borne by the losing party. In the event I lose I will be responsible for the entire cost of the arbitration even though midland will pay the cost upfront.  He further states that in the credit account agreement it states that if I am not acting in good faith that I could be liable for all collection costs and  review applicable rule from JAMS.  He further states that it is a common belief that if I request arbitration the creditor will forgo the account because of the high cost of arbitration versus the balance of the account. In the past this was true as many creditors did not have the documents or evidentiary support they needed to be confident they would succeed in arbitration.  This is not the case here, for your account we have a chain of title, seller data sheet, and statements from 10/2011 to 9-2012.
  • Answer to MTC which states:

Plaintiff requests this court to stay the instant action pending resolution of this matter in arbitration.  As grounds therefore, the Plaintiff states as follows:

         1. While Plaintiff believes Defendant is not acting in good faith in his request and is simply attempting to delay resolution of the claim or is attempting to leverage the cost of arbitration compared to the low balance of the account as a reason for Midland to abandon this account, Plaintiff concedes the agreement governing Defendant's account provides resolution of this matter via arbitration.

Wherefore, the plaintiff requests that this Honorable court stay the instant matter pending completion of arbitration.

  • Purchase price reconciliation/funding instructions document with redacted info; (This (redacted) RECEIVABLES PURCHASE AGREEMENT..., Portfolio(redacted) Agency_Atty code, total number of accounts, Outstanding balances on transfer data, purchase price factor, purchase price & bank info all redacted.
  • Bill of Sale from GE Capital
  • Affidavit of sale of account by original creditor. From State of Minnesota. Signed by Diane Stone Notary
  • Blanket Cert. of Conformity for Notary Evelyn Ocana
  • 13 billing statements

Do these documents meet the required documents as required in the Consent order?

How is Electing my right to arbitration not acting in good faith?

Thanks

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On 12/30/2016 at 1:05 PM, BV80 said:

Does your agreement allow for JAMS?  If so, this is from the JAMS Consumer Minimum Standards:

7.  With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

https://www.jamsadr.com/consumer-minimum-standards/

In my MTC I made the demand for arbitration &  the CC agreement states that "if a party files a lawsuit in court asserting claims that are subject to arbitration & 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.

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16 hours ago, robinsonmac said:

Update to case:

Received the Paper work from the Lawyer today,

It contains :

  • A settlement letter saying before he files initiation document with JAMS they want to settle because I am requesting arbitration from info I got on the internet & that the arbitration costs are generally borne by the losing party. In the event I lose I will be responsible for the entire cost of the arbitration even though midland will pay the cost upfront.  He further states that in the credit account agreement it states that if I am not acting in good faith that I could be liable for all collection costs and  review applicable rule from JAMS.  He further states that it is a common belief that if I request arbitration the creditor will forgo the account because of the high cost of arbitration versus the balance of the account. In the past this was true as many creditors did not have the documents or evidentiary support they needed to be confident they would succeed in arbitration.  This is not the case here, for your account we have a chain of title, seller data sheet, and statements from 10/2011 to 9-2012.
  • Answer to MTC which states:

Plaintiff requests this court to stay the instant action pending resolution of this matter in arbitration.  As grounds therefore, the Plaintiff states as follows:

         1. While Plaintiff believes Defendant is not acting in good faith in his request and is simply attempting to delay resolution of the claim or is attempting to leverage the cost of arbitration compared to the low balance of the account as a reason for Midland to abandon this account, Plaintiff concedes the agreement governing Defendant's account provides resolution of this matter via arbitration.

Wherefore, the plaintiff requests that this Honorable court stay the instant matter pending completion of arbitration.

  • Purchase price reconciliation/funding instructions document with redacted info; (This (redacted) RECEIVABLES PURCHASE AGREEMENT..., Portfolio(redacted) Agency_Atty code, total number of accounts, Outstanding balances on transfer data, purchase price factor, purchase price & bank info all redacted.
  • Bill of Sale from GE Capital
  • Affidavit of sale of account by original creditor. From State of Minnesota. Signed by Diane Stone Notary
  • Blanket Cert. of Conformity for Notary Evelyn Ocana
  • 13 billing statements

Do these documents meet the required documents as required in the Consent order?

How is Electing my right to arbitration not acting in good faith?

Thanks

Oh, good, he put his lies in writing.   You might want to contact a consumer attorney who would sue the JDB attorney.  

The plaintiff agrees to a stay pending arb.  More good news for you, you just derailed their court case.

You are exercising your rights under the law and the contract.  You are acting in good faith.  How can following the contract be an act of bad faith?

 

 

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15 minutes ago, robinsonmac said:

Anyone know a good consumer attorney in Colorado?  I plan on filing a suit against them for several violations including violating the Consent Order. 

Thanks,

If you're referring to the Consent Order with the CFPB, you don't have a private right of action for violations of the Order.

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Also to note on the Bill of Sale,  It does not list the account # they claim is mine as being part of the bill of sale. It also mentions a "(REDACTED) Receivables Purchase Agreement."   None of the agreement was sent with the bill of sale.

The affidavit of sale of  account states that ****** is a collections account rep of GE Capital & in that position has access to the creditors books and records, and is aware of the process of the sale & assignment of electronically stored business records.  On or about 7/25/2013 GE Capital sold a "POOL" of charge-off accounts by a purchase & sale agreement & bill of sale to Midland Funding LLC.  As part of the sale of the accounts, electronic records & other records were transferred on individual accounts to the debt buyer.  These records were kept in the ordinary course of business of GE Capital Retail Bank.  The creditor has a process to detect & correct errors on these accounts.  The above statements is true to the best of my knowledge.

Nowhere in the affidavit does it mention a specific reference to the particular debt being collected to be mine or that it was part of the sale of account.

 

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@robinsonmac   If you want to consult a consumer lawyer, go to www.consumeradvocates.org

Most consumer lawyers, though,  know little about consumer arb and don't like it.   Hang in there with Midland's lawyer.  You can drag out JAMS and make it very expensive for them as @fisthardcheese can tell you.  JAMS starts at around $500/hr and for a $ 578 debt they are not likely to want to go that route.

 

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To be sure, this attorney is simply trying to scare you so that you pay them something.  He is lying to put fear in you, so don't let it work.  He did you so many favors here.  He agreed to have the court case stayed.  Don't do anything until the court grants your MTC.  Once you have the official signed Motion granted from the court, wait a couple weeks to see if Midland actually files the JAMS case.  My guess is they will not.  However, they MAY, so don't let that spook you.   Just so you know, JAMS will NOT force you to pay any arbitration fees even if you lose.  The rules are posted on their website and they are very clear. 

If they DO file, what I would do is respond when JAMS sends the notice to you with a denial of all Midland's allegations and file a counter claim in JAMS for the FDCPA violation and the consent order violation.  I would ask for at least $2,000 in statutory and actual damages.  Let the JAMS process play out which will move very slowly.  It can take months before you get to the first hearing.  Midland's initial filing fee is $1200, but soon after you file your counter claim, they will get hit with another bill of at least $3k.  This is where I would expect them to give up if they even reach this point.

If Midland does not file the JAMS case and 30 days goes by without hearing from them, I would file the JAMS case myself (but send no money to JAMS at this point, instead send a copy of the court order to arbitrate and point out that the card agreement states they will file and pay). Ask JAMS to bill Midland for all filing fees.  Once I file and get my CMRRR green card back or the case number from JAMS as proof I filed, I would file a notice with the court that you filed because Midland refused to per the contract and court order.  I may even file a motion for sanctions at that point since Midland would have violated the court order. Sanctions are up to the court, but you can ask that part of the sanctions be a dismissal with prejudice of the case.

Essentially, no matter what happens, you have done an extremely well job of putting yourself in a winning position.  There is no where else for Midland to go with this other than to pay over $5k to arbitrate and MAYBE win $500 out of it. And they know it too.  I see a dismissal in your future.  Just do NOT agree to anything with them and let the court grant your MTC and then let the JAMS case play out for a while if needed.

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2 hours ago, fisthardcheese said:

To be sure, this attorney is simply trying to scare you so that you pay them something.  He is lying to put fear in you, so don't let it work.  He did you so many favors here.  He agreed to have the court case stayed.  Don't do anything until the court grants your MTC.  Once you have the official signed Motion granted from the court, wait a couple weeks to see if Midland actually files the JAMS case.  My guess is they will not.  However, they MAY, so don't let that spook you.   Just so you know, JAMS will NOT force you to pay any arbitration fees even if you lose.  The rules are posted on their website and they are very clear. 

If they DO file, what I would do is respond when JAMS sends the notice to you with a denial of all Midland's allegations and file a counter claim in JAMS for the FDCPA violation and the consent order violation.  I would ask for at least $2,000 in statutory and actual damages.  Let the JAMS process play out which will move very slowly.  It can take months before you get to the first hearing.  Midland's initial filing fee is $1200, but soon after you file your counter claim, they will get hit with another bill of at least $3k.  This is where I would expect them to give up if they even reach this point.

If Midland does not file the JAMS case and 30 days goes by without hearing from them, I would file the JAMS case myself (but send no money to JAMS at this point, instead send a copy of the court order to arbitrate and point out that the card agreement states they will file and pay). Ask JAMS to bill Midland for all filing fees.  Once I file and get my CMRRR green card back or the case number from JAMS as proof I filed, I would file a notice with the court that you filed because Midland refused to per the contract and court order.  I may even file a motion for sanctions at that point since Midland would have violated the court order. Sanctions are up to the court, but you can ask that part of the sanctions be a dismissal with prejudice of the case.

Essentially, no matter what happens, you have done an extremely well job of putting yourself in a winning position.  There is no where else for Midland to go with this other than to pay over $5k to arbitrate and MAYBE win $500 out of it. And they know it too.  I see a dismissal in your future.  Just do NOT agree to anything with them and let the court grant your MTC and then let the JAMS case play out for a while if needed.

Thanks your for your time & response. I was getting irritated when he said I was not acting in good faith by exercising my right to arbitration & kept telling me I would have to pay all arb fees.  Will  stay the course to the end.

Thank you.

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16 hours ago, robinsonmac said:

Thanks your for your time & response. I was getting irritated when he said I was not acting in good faith by exercising my right to arbitration & kept telling me I would have to pay all arb fees.  Will  stay the course to the end.

Thank you.

That is a very typical response from any attorney.  As soon as you do something they don't like, their automatic first response is that you are acting in bad faith, that your claims are frivolous, or my favorite - that you are a serial litigant (especially coming from an attorney representing a JDB like Midland, who at any give time can have thousands of pending cases against consumers).  It's just hot air that attorneys use to intimidate people and get the outcome they want.   Just ignore it. :)

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  • 1 month later...

UPDATE:

Judge granted MTC.  But the motion granted was to the Midland lawyers response to my MTC.  In his response he asked for a atay pending arbitration & it looks like the judge granted  stay from his response.  

My MTC gave the Midland lawyer 30 days to initiate arb if the MTC was granted if not the case is dismissed with prejudice.  SHould I file with JAMS or file a motion to dismiss for failure to arbitrate & site my MTC?

Thanks

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