Roro1786

Just got served by Midland funding

Recommended Posts

Hello, I started reading some posts after getting served today with a court summons. Midland funding bought my $300 CC debt which somehow appears as $661 on the paperwork and it is really stressful as I am trying to fix my credit at this time. I cannot get a judgement against me or it will ruin my credit which I've managed to build since late last year to a decent score. Please help!!

Share this post


Link to post
Share on other sites

Who is the OC?

When did you open the account?

When was the last payment?

Your best shot at making this go away is to get it into private contractual arbitration.  Your answers to the 3 questions above will help us determine if arbitration is an option for you.

Share this post


Link to post
Share on other sites

Hi Harry,

My OC is Credit One Bank

The account was opened in Nov. 2015

I cannot see any payment info on it, this was a card I even forgot I had since I was in the middle of a divorce. 

Harry I really appreciate your help.

Is the 20 days to respond counting from when I got served (last night) or the date on the court papers which is 4/17?

Share this post


Link to post
Share on other sites

I could not find a 2015 agreement.  I have attached an August 2014 and April 2016.  If your account was active any time after April 2016, you can use the April agreement. Notice there are several agreements in the one PDF file.  Find the one that most closely matches the account you had. 

Bottom line is both agreements basically have the same arbitration clause.  The only issue I can see is the 'small claims' exception.  AZ has a Small Claims Division and credit card lawsuits cannot be filed there because lawyers are not permitted in AZ small claims court.  The problem is Nevada may use the term "small claims" for the equivalent of our Justice Court, in which case Bursey might be able to convince the court that Midland's claims are not subject to arbitration.  But I'm getting ahead of myself.  I would first focus all of my energy on trying to get the case into arbitration and 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.  Be sure to sign and date your answer.  Also, the last page of your Answer needs to have a "certificate of service" which is a very simple block of type that says you mailed the foregoing to Plaintiff's attorney.  Include the attorney's name and address and then a place for you to sign and date. 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.  Be sure to sign and date your MTC.  As with your answer, your MTC also needs a certificate of service. Attach your letter as Exhibit A and the Affidavit (see below) and Agreement at Exhibit B.
  4. Prepare a jurat affidavit ("under penalty of perjury I swear that..." for you and then "subscribed and sworn to before me..." for the notary) in which you swear under oath that your statements are made on your personal knowledge, you opened an account ending in XXXX with the original creditor on or around xx, xx, xxxx and 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.
  5. Make 3 copies of your answer and take them to the courthouse to get stamped. File one with the court, one you mail to Plaintiff and then you keep one.  File your Answer within 20 days of when you were served.
  6. Make 3 copies of your MTC and take them to the courthouse to get stamped. File one with the court, one you mail to Plaintiff and then you keep one.  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 JAMS or 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 JAMS or 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 Plaintiff doesn't respond, the court should grant your MTC as unopposed.   If Plaintiff does respond, you have 5 days to file a reply to their response. Check the online court docket daily so you don't miss it if they forget to send your notice.  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.

Credit One Bank Visa _ MasterCard Cardholder Agreements and Disclosures.pdf

creditcardagreement_11590.pdf

Share this post


Link to post
Share on other sites
On 5/4/2017 at 10:50 AM, Harry Seaward said:

Contact JAMS or 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 JAMS or 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.

I agree with everything @Harry Seaward said except I don't think this last part is necessary.  All of the information needed to file for arbitration is at the website for AAA or JAMS and the rules clearly state what is required.  If it were me, I would not add extra steps that take more time.  I would not worry about filing the arbitration case until the MTC is granted by the Court, at which time, I would simply follow the instructions on the Demand For Arbitration Form found on the website of either AAA or JAMS.  As long as you show the court you are following their instructions as written on the Demand form (if it even comes up), there should be no issues.

I also don't like sending the letter in Harry's #1 step.  To me, once you are sued, all that matters is the MTC.  Harry and I disagree on this, but bottom line, in my opinion, I don't want to spend extra time and resources on something after suit is already filed that makes little difference, whereas Harry believes it's good to cover yourself as some arb agreements state that you should send a letter to notice the creditor of your election of arbitration.  I understand the abundance of caution Harry is taking, but once suit is filed, it changes things slightly and the "notice" of arbitration would be my MTC that I send to them.   But that's just my take.  The meat of the issue is essentially the same and Harry has given you very good advice.

Share this post


Link to post
Share on other sites
5 hours ago, fisthardcheese said:

As long as you show the court you are following their instructions as written on the Demand form (if it even comes up), there should be no issues.

A few months ago we had a court here in AZ deny a MTC because Midland convinced the court that the consumer should have initiated arbitration.  My gut tells me that, even if the consumer had initiated arbitration, Midland would have found some other angle and the court would have likely gone along with it and the MTC probably would have been denied anyway.  But I always look at things from an appeals court point of view.  Is there any possible way they could believe the consumer should have initiated arbitration?  I think it's possible so I recommend the extra work now to keep yourself in the good graces of the appeals court should you ever need to seek their opinion.

 

  • Like 1

Share this post


Link to post
Share on other sites

OK, so I seem to have all of the above, I just need the last four of the account # for the Jurat statement and the correct card member agreement which I am looking to get in the morning. I am taking the day off work to take care of all this.

I greatly appreciate all of your help and I will let you know how it turns out from here. Thanks again.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.