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Hey guys, I'm clueless about the JRCP as they pertain Midland Funding LLC's pending case against me here in Maricopa County, AZ. Specifically, I'm hesitant to attempt to file an amended Answer and move to Compel Arbitration at this point because as I understand a MTC Arbitration requires me admitting to being a party to the original Credit One Bank cardholder agreement they show being established under my name back in 2015. It's been just more than 40 days now since I filed my Answer in which I denied knowing anything about the account and earlier this week the Judge dismissed my Counterclaim (Plaintiff's counsel likened my affirmative defenses to throwing spaghetti at a wall and seeing what might stick in their Response and Motion), so what is the likelihood that a MTC Arbitration would even help me? Also, if arbitration is granted and Midland follows and prevails can I still file Chapter 7 in the future to have any award discharged? I broke out in shingles stressing over all this and I'm only in my thirties! I wish Midland would leave me alone because I have no nonexempt assets or wages for them to collect making this whole process is a complete waste of resources.

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Gurstel Law Firm P.C. (formerly known as Gurstel Chargo P.A.)

3. How much are you being sued for? <$850.00

4. Who is the original creditor? (if not the Plaintiff) Credit One Bank *account opened in 2015

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? I was properly served

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  No contact, never heard of them until served

9. What state and county do you live in? AZ - Maricopa

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never paid, but the account is over 2 years old based on dates listed in the Complaint

11. What is the SOL on the debt?  6 years

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). Current case status listed online is Adjudicated. Pretrial scheduled to take place in about 30 days

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. MIDLAND lists charges as follows: Count 1 Breach of Contract and Count 2 Account Stated 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No interrogatory. Already filed an Answer denying everything except my name, address, proper venue, court jurisdiction over the matter as the amount is less than $10k, and prevailing party should be awarded all costs. I filed a Counterclaim at the same time I filed my Answer. Counterclaims were affirmative defenses of Laches, Lack of Standing, Statute of Frauds, Unjust Enrichment, Failure to provide copies of contract/statement(s)/etc., and of course that I reserve the right to amend my answers, defenses, and claims at a later date. All of this before I came across your helpful website....

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  There was no evidence attached to the Summons and Complaint. No evidence has been provided to me and the attorney has filed Motions to substitute counsel, appear telephonically, and to dismiss my counterclaims. I haven't completed the Disclosure form that the court sent me in the mail but it will be due soon.

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Sounds like you're pretty deep down the rabbit hole already. Your affirmative defenses are not counterclaims, and if you attempted to present them as counterclaims then that's probably why they've been denied.

Counterclaims are claims you're bringing against them with respect to the matter on which they are suing you. Those would likely be something akin to "I paid these original creditor and will present receipts to prove it; not only that, but I OVERPAID those people and these people now OWE ME some money if they claim to own this account now." There are other possibilities for counterclaims of how the may have been the party in the wrong - none of them seem terribly likely based on what you've said here.

What you probably meant to do is include the affirmative defenses after responding to each statement of the complaint; this is required if you hope to use one of these specific defenses at some point during the entire process. You generally have to have at least some support statements that go with them that justify why you're raising these defenses. 

Even if you did offer them properly as affirmative defenses you'd probably still get the "see what sticks" argument unless you made a brief but sensible statement to argue why it was included.

You'll want to get a disclosure sent out, even if it states you have nothing to disclose if that be the case; I believe the deadline is the 40 days you mention. Theirs should be due to come to you, as well. Hopefully that would include any agreement they say their claim is based upon, or at the least a copy of what they will claim are account statements, etc. If they include an agreement of any sort and it allows for arbitration you could very likely MTC. You can also find agreements online if they sent you a statement or indication of when the account opened and lean on whatever arbitration provision are in there as the basis for your MTC."

As with most here I'm just a non-attorney who has been through the wringer, but wanted to offer what I could in response to your query.

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3 hours ago, JDBgoAway said:

Laches

Nope.  The debt is WELL within the SOL therefore they are timely.  Won't fly.  A laches defense works when they file suit in 2017 and wait until 2021 to actually try the case.  Or if the debt is 20 years old and they wait until then to sue.  Then you have the SOL and a laches defense together.

3 hours ago, JDBgoAway said:

Statute of Frauds

Again, NO.  Utah is the only state that allows the use of Statute of Frauds as a defense in a credit card case.

3 hours ago, JDBgoAway said:

Unjust Enrichment

No.  The JDB industry is known for buying for pennies on the dollar.  That is not the issue.  If they can prove standing then they are in the "shoes" of the original creditor and there is no unjust enrichment.  The one who was unjustly enriched was you.  You used the card, got the purchased goods and services and defaulted on the obligation to pay.  Expect them to throw that one back at you.

3 hours ago, JDBgoAway said:

Failure to provide copies of contract/statement(s)/etc.

NOT a defense or counter claim.  If you want those things you have to do discovery.  

3 hours ago, JDBgoAway said:

Lack of Standing

This is the only affirmative defense you have that holds any chance of success providing you can effectively argue it and Midland is completely unprepared.

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You're case is still in the early enough stages that you can absolutely file a Motion to Compel Arbitration if this  a viable option.  The CFPB credit card database is offline for maintenance as I'm typing this, but you need to find out if your credit card agreement has an arbitration clause.

While it's true that by citing the credit card agreement, you are in fact admitting to having had an account with the original creditor, this does not establish that a debt is still owed (perhaps it was paid before Midland bought it, for example) or that Midland is the rightful owner of the debt.  If you can prove you paid it, that's one thing, but the much more likely reality is that you have a much smaller chance of beating this lawsuit if you try to challenge Midland's ownership of the debt in court.  On the other hand, we've yet to see a granted Motion to Compel  Arbitration fail to send Midland packing.

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8 hours ago, Harry Seaward said:

While it's true that by citing the credit card agreement, you are in fact admitting to having had an account with the original creditor

Not necessarily.    The OP is only admitting that one of the parties is a party to the contract. 

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I really appreciate everyone's quick response.

After some additional research on this board and further contemplation I decided I'm going to file a Motion to Compel Arbitration.

The attached Credit One Bank cardholder agreements I found on previous posts from this forum both have similar arbitration rules since the CFPB website didn't seem to have anything in their archive for 2015.  

If anyone knows where I can get a copy of a 2015 Credit One Bank cardholder agreement let know please. Thanks again for your help

 

2016Credit1Agreement.pdf

2014Credit1Agreement.pdf

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