pac58

Im being sued by Midland Funding LLC, case number xxxxxx 

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Hi all, 

I am asking for assistance as I do not know what I am doing. I am being sue for $3500 from midland funding over a debt that they purchased from a Barclaycard. I have tried to negotiate with them over the past week, but I only have 20 days to reply to the court with my answer regarding this case. All of the settlement options that they are suggesting are unrealistic for my current income (my partner just left his job and I am paying for both of our bills). Should I turn in an answer just I case we aren't able to settle in time? can someone help me write the answer? how to I get a better settlement? I first offered $500 on the spot as I had that much, they denied it and then said they would take $3000. I told them I could do $750 if they wait until Friday, and they came back at me with $3000 over three months. I can't afford that, not even a little. Any suggestions? 

case number [deleted for privacy reasons] 

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When did you open the account? When was the last payment? 

If at all possible you want to get this lawsuit out of court and into "private contractual arbitration" ASAP.  Take a look in your card agreement for an arbitration clause. If you don't have your original agreement,  take a look here to see if you can find one. 

https://www.consumerfinance.gov/credit-cards/agreements/

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38 minutes ago, Harry Seaward said:

When did you open the account? When was the last payment? 

If at all possible you want to get this lawsuit out of court and into "private contractual arbitration" ASAP.  Take a look in your card agreement for an arbitration clause. If you don't have your original agreement,  take a look here to see if you can find one. 

https://www.consumerfinance.gov/credit-cards/agreements/

It did not give me the option for barclay card- am I searching for the wrong thing? 

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It's in  the drop-down menu. And there's a cherry arbitration clause in  there. It says they will pay your fling fees if you ask them to. 

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32 minutes ago, Harry Seaward said:

It's in  the drop-down menu. And there's a cherry arbitration clause in  there. It says they will pay your fling fees if you ask them to. 

Thank you for your help. You don't know how much this means. Would I be asking midland to pay for the filing fees or the lawyers working on their behalf? Do you know of a good answer I can use to guide me in my complaint answer? 

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@Harry Seaward If in the original agreement with Barkley is says that any disputes are supposed to go to arbitration, does it mean that I should be filing with the judge to dismiss the lawsuit  on the grounds that I am owed arbitration? 

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This is what I recommend to get the ball rolling on arbitration.

  1. Send a letter to Plaintiff's attorney informing them that, in accordance with the controlling agreement associated with the underlying account, you are electing arbitration to settle Plaintiff's claims against you.  Keep it simple.  One or two sentences is sufficient.  Be sure to attach a copy of the credit card agreement to your letter.
  2. Prepare an Answer to the lawsuit in which you line-by-line deny all of Plaintiff's claims except your name and address (and marital status, if it happens to be correct).  In your answer, make a section titled "Affirmative Defenses" and under that state that you have notified Plaintiff per Exhibit A that you elect private contractual arbitration to settle their claims against you, and therefore believe the court does not have subject matter jurisdiction over this lawsuit as all of Plaintiff's claims are now subject to private contractual arbitration.  Your Answer doesn't need to be complicated. Attach a copy of the above letter to your Answer as Exhibit A.
  3. Prepare a "Motion to Compel Private Contractual Arbitration (Hearing Requested)" (name it that, including the "(Hearing Requested)") in which you ask the court to order the parties into "private contractual arbitration in accordance with Arizona Revised Statutes §12-1502 and the attached letter and agreement, Exhibits A & B respectively, that is controlling on the underlying account".   Inform the court that you want a hearing on the matter.  As with the Answer, don't make your Motion to Compel (MTC) complicated. Attach your letter as Exhibit A and the Affidavit (see below) and Agreement at Exhibit B.
  4. Prepare a jurat affidavit (google the format for Arizona) in which you swear under oath that the attached agreement is a true and correct copy of the agreement that was in effect during the life of your account.  Your affidavit must be notarized under oath.  Be very certain what you claim in your affidavit is true - otherwise you will be committing perjury.  (I found a Q4 2012 Barclay's agreement you can use to compare your agreement with. ---> creditcardagreement_7593.pdf)
  5. File your Answer within 20 days of when you were served.
  6. File your MTC (with copy of letter and Affidavit and Agreement attached) fairly soon after, if not the same day as your Answer.
  7. Contact AAA at the phone number and/or website provided in the agreement.  Inform them you have been sued and the Plaintiff's claims are subject to arbitration by AAA and you want to know what you need to do to get started.  I would record this phone call if at all possible because they may tell you that the case cannot start until Plaintiff pays their portion of filing fees.  This is important because Plaintiff may instead try to claim you have to do something first.

So here's how this should work.  After you file your MTC, Plaintiff has 10 business days to respond.  If they respond, you have 5 days to file a reply to their response.  It's at that point that you would cite caselaw relevant to your motion.  The Court then has two options under the Rules.  It can grant your motion without a hearing, or it can set a hearing for oral argument on the motion.  Some courts have denied the motion with no hearing.  This is improper under the current Rules of Civil Procedure, but the only remedies are a Motion for Reconsideration (which I do NOT recommend) or an appeal (which is a hassle and could be costly depending on your financial situation, but I HIGHLY recommend going this route on any denied MTC). 

If the MTC is granted and Plaintiff is forced into arbitration, they will dismiss their lawsuit against you and you walk away.  If the MTC is denied, you can opt for an immediate appeal (recommend) or try to challenge their claims in court.  I will tell you from personal experience and all of the cases I've seen come across this board, your chance of beating this in court is about 10%.  Basically you have to end up with a judge that doesn't accept Plaintiff's evidence or a case where Plaintiff drops the ball with their documentation somehow.    So you really want to concentrate as hard as you can on first getting this into arbitration.  If that doesn't work, we'll help you with a Plan B.

In your case, there is a clause of the Arbitration provision that talks about "Small Claims Court".  Midland has been known to try to say this clause exempts their claims from arbitration.  In other cases, the wording of the agreements was much more clear about keeping small claims cases out of arbitration.  In your case, the agreement says a claim "may" be pursued in a small claims court "provided the action remains in that court".  There's really nothing at all in your agreement that says a claim filed in small claims court must remain there, and I would argue the "remains in that court" clause leaves the door open for the Court to order the parties into arbitration without being in opposition to the agreement.  Also, I would argue the definition of "small claims" is open to interpretation because it says "Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction".  "Equivalent" requires some research and analysis of both court systems to be able to establish what the AZ equivalent of a Delaware JP court is.

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@pac58

Do exactly what Harry advised you to do.    STAY ON TOP OF YOUR CASE ALL THE TIME.  The AZ members here gotten dismissals for defendants like you, but you have to do the work yourself.  THIS HAS TO BE YOUR NO. 1 PRIORITY.   Midland Funding hates arbitration and they will fight you.      You may even get pushback from the court and the clerks who work there.   I am telling you this so you will be prepared.  Get to work now.

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@Harry Seaward

 

Thank you for that detailed list. I have small follow-up questions if you don't mind. 

1) I found a copy of the 2009 agreement, which is when I originally opened the account with them and, to my eye, it seems very similar to the 2012 and most current versions. I've attached it to this post.

2) You mention that they offer to cover the filing fees, is this just for arbitration or does that include court filing fees?

3) I want to clarify that, according to your third point, I'm making a document for the MTC and, in it, I am asking for a hearing to move this to arbitration, then I am attaching 3 items as exhibits: my letter to the plaintiff, my jurat affidavit, and a copy of the Barclays agreement. My question: is the MTC just a word file I create or is there an official form I should be using?

4) Can I get a jurat affidavit form from the courthouse? I see several examples online for an Arizona JA but there are discrepancies between versions. Once i have the form, can I use any notary public?

5) I assume that I am filing my answer to the lawsuit separate from my MTC? IE once I've got everything done and prepared I submit two items? (Answer to suit and MTC package?)

 

 

 

2009 Barclays Bank Agreement.pdf

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26 minutes ago, pac58 said:

1) I found a copy of the 2009 agreement, which is when I originally opened the account with them and, to my eye, it seems very similar to the 2012 and most current versions. I've attached it to this post.

You do not want to use the 2009 agreement. It was not the most recent version in effect at the time of default. Additionally,  this sentence will be problematic if Midland can make a case that AZ Justice Court is the same as Delaware JP Court:

"Further, you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the Small Claims Court."

26 minutes ago, pac58 said:

2) You mention that they offer to cover the filing fees, is this just for arbitration or does that include court filing fees?

It only seems to apply to arbitration fees. 

26 minutes ago, pac58 said:

3) I want to clarify that, according to your third point, I'm making a document for the MTC and, in it, I am asking for a hearing to move this to arbitration, then I am attaching 3 items as exhibits: my letter to the plaintiff, my jurat affidavit, and a copy of the Barclays agreement. My question: is the MTC just a word file I create or is there an official form I should be using?

Exactly. There are forms but I don't like them because they limit your response options. I prefer to type it up in Word.

26 minutes ago, pac58 said:

4) Can I get a jurat affidavit form from the courthouse? I see several examples online for an Arizona JA but there are discrepancies between versions. Once i have the form, can I use any notary public?

The main thing you're concerned about with a jurat affidavit is that it says "I declare  under penalty of perjury that the forgoing is true and correct to the best of my knowledge" above your signature, and then the statement of "subscribed and sworn to before me..." where the notary signs and stamps.  That's what makes your statements sworn testimony. 

 

26 minutes ago, pac58 said:

5) I assume that I am filing my answer to the lawsuit separate from my MTC? IE once I've got everything done and prepared I submit two items? (Answer to suit and MTC package?)

 Exactly. 

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@Harry Seaward

I am not married though I do live with my partner. The lawsuit names a john doe living at our address. Does my partner need to file with the courthouse the same documents as I am? Are my answer and MTC, which will state that I am not married, good enough to keep him out of this?

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@Harry Seaward

 

I have prepared the documents and am attaching them here for feedback, if possible.   Thank you, again, for the help on this matter. If it looks good then my goal is to have the jurat affidavit notarized tomorrow then, immediately afterward,  file the answer and MTC.

[deleted to conceal identity]

 

 

 

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7 hours ago, pac58 said:

I am not married though I do live with my partner. The lawsuit names a john doe living at our address. Does my partner need to file with the courthouse the same documents as I am? Are my answer and MTC, which will state that I am not married, good enough to keep him out of this?

Arizona does not observe "common law" marriages, unless you became married by common law in another state and moved here.  If he's a domestic partner that you've only lived with in AZ, there's no chance he could become liable for this debt.  So you would simply deny that you are married.  John Doe is to cover them for the possibility that you are married and allow them to come back and name the spouse at a later time.  (This is where Cavalry screwed up in my case.  I'm married but they failed to allege that I am married and failed to name a spouse in the lawsuit.  This mistake will prevent them from ever being able to collect their debt from me as long as I stay married.)

6 hours ago, pac58 said:

I have prepared the documents and am attaching them here for feedback, if possible.   Thank you, again, for the help on this matter. If it looks good then my goal is to have the jurat affidavit notarized tomorrow then, immediately afterward,  file the answer and MTC.

I got home late tonite but I should have some time early tomorrow morning to go over this.  I would suggest that you wait until I or someone else has a chance to look it over before you move forward.

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The content of your docs look good (see PM I sent).  I would move some things around, specifically with your answer.  First, you have Bursey's address in the upper right corner.  I would take that out of there.  That's where the filing attorney would put their address (you're self represented, so no attorney).  Second, you started the answer with the Affirmative Defense, but then typed out "Affirmative Defenses" and put your answers below that.  What I would do is move your answers to the top, then put "Affirmative Defenses" and then the paragraph with the 'subject matter' defense below that.  Since you didn't respond to each line item, I would throw in at the end of your answers a statement like "any of Plaintiff's allegations not expressly admitted by me is hereby denied."

Then I forgot to tell you this, but everything you file with the court needs to have a "certificate of service".  It's basically a block of text on the last page that says you sent a copy of the 'foregoing' to Plaintiff's attorney.  You would type out the name and address of the attorney and then a place for you to sign and date.  I take 3 copies to the courthouse and have the Clerk date stamp all 3.  One stays with the Court, one goes to the Plaintiff (that you have to mail to them yourself) and I keep a copy for me.  I've had the court lose their copy and then I pull out my copy with the official date stamp to prove I did in fact file it.

But something in your answer caught my attention.  You said you were a dependent of your mother when you opened the account.  Were you a minor at that time?

Also, can you post a copy of your affidavit for review?  (Don't include any personal or court info.)

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I was not a minor at the time, I was 19 and in college. I am trying to verify that she claimed me as a dependent on her taxes that year. I'm positive she did but I don't have a copy of her taxes from 2009-2012, if it even matters.

Can I PM the affidavit to you? I assume you are asking for the original document given to me by the person who served me?

 

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I meant the affidavit you plan to file with your MTC.

I also forgot to tell you that you need to sign and date (separate from the certificate of service) your answer and MTC.

The issue with the taxes and dependent status are irrelevant since you were 19 when you opened the account.  As an adult, you were legally obligated to repay the debt to the OC.

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I rearranged the order of things in the Answer.

 

I added a separate area on both the Answer and MTC for signing the documents separate from signing the certificate of service.

 

 

 

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Gotcha.  Ok, your affidavit needs to make declarations. 

I, pac58, make the following declarations based on my personal knowledge and under penalty of perjury:

  1. That I opened an account with Barclay's Bank on or around XX, XX, XXXX.
  2. That the attached credit card agreement (Exhibit B, or whatever) was in governing effect during the life of the account.

The foregoing is true and correct to the best of my knowledge.

signed/date

Subscribed and sworn to before me this ______

Notary signature and stamp

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Remove the "swear under penalty of perjury" business from the Answer and MTC.  Just a signature and date right under the last line if your motion.  And the certificate of service can go on the same page if it will fit.

Otherwise, good to go!

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Everything has been submitted to the justice court and was done in triplicate so that the court, the Plaintiff's attorney, and myself all have a stamped, notarized (where applicable) copy of my answer and the MTC.

Now we play the waiting game.

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