Knightorday

Being Sued by Midland Funding in Louisiana

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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.) Eaton Group Attorneys, LLC

3. How much are you being sued for? $6300.00

4. Who is the original creditor? One Main Financial

5. How do you know you are being sued? Received summons

6. How were you served? (Mail, in person, Notice on door) Handed to my wife

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? NO Correspondence

9. What state and county do you live in? Louisiana, Vermillion Parish

10. When is the last time you paid on this account? January 2015

11. What is the SOL on the debt? 7 years

12. What is the status of your case? Suit served? Motions filed? Suit Served and I responded denying all allegations and asking for evidence. They have sent back a "NOTE INTERROGATORIES"

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? NO

15. How long do you have to respond to the suit? 30 days, but since it was given to my wife instead of me 40 days

 16. What evidence did they send with the summons? Nothing just the summons stating the wrong account number and "Note Interrogatories"

 

I received the summons and already responded and denied everything and asked for evidence. I have now received a Note Interrogatories. Before I respond to it I wanted to get some feed back of how to handle the situation. In the summons the listed the wrong account number does this effect anything (not even close to the original which I have)? Second I have a 2 page forced arbitration agreement that was signed during the original contract. I want to know do I bring that up now or how do I handle that is better to go to arbitration? Third, The original contract was signed and executed in Oklahoma. In the words of the arbitration agreement  Oklahoma law will be the guiding law. I have now moved to Louisiana and its in the court system here does that effect the case in anyway?

Last, Can anyone provide any links with examples of how to respond to the Notes Interrogatories?  (listed below)

 

NOTE INTERROGATORIES

This is a communication with a debt collector. Please answer the interrogatories pursuant to the Louisiana Code of Civil Procedure within thirty days:

I. The creditor indicates a balance on the note of $6500.00 as of January 22, 2017. Do your records reflect otherwise and if so, please describe.

II. The creditor indicates that all funds described in the note were advanced. Do your records reflect otherwise and if so, please describe.

III. The creditor indicates that all payments and credits have been applied to the balance. Do your records reflect otherwise and if so, please describe.

IV. The note includes various terms, including provision for interest and attorneys fees as reflected in the petition. These terms were agreed upon when you signed the note. Please fully describe any terms which you are not accurately reflected in the petition; fully detail the suggested accurate terms; and describe and attach any document which substantiates an agreement as to any different terms.

DOMESTIC INTERROGATORIES

This is a communication with a debt collector. Please answer the following interrogatories pursuant to the Louisiana Code of Civil Procedure within (30) days:

I. What is the present name and address of each person to whom you have been married?

II. On what date were you married, Physically separated, and petitioned for divorce relative to each person to whom you have been married?

III. Why do you feel the community should not be held responsible for this obligation?

IV. What community property did you retain after your marriage ended and what was the estimated value of the property on the date of the dissolution?

 

 

and that's where I am today. Any help with the above questions and how I should respond and proceed will greatly be appreciated. Thank you!

 

 

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Any Help would be appreciative. I only have 14 days left to respond and really don't know how to respond and try to file for arbitration (I have a 2 page arbitration forced arbitration agreement that was signed by both parties)

 

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On 7/19/2017 at 10:29 AM, Knightorday said:

In the summons the listed the wrong account number does this effect anything (not even close to the original which I have)?

It affects nothing.  When Midland bought the account legally they are required to assign it a new account number.  They cannot use One Main's.

On 7/19/2017 at 10:29 AM, Knightorday said:

Second I have a 2 page forced arbitration agreement that was signed during the original contract. I want to know do I bring that up now or how do I handle that is better to go to arbitration?

In some states not invoking arbitration in your answer waives the right to it.  You need to find out if that is true for LA.

If it isn't then you file a motion to compel arbitration ASAP.

On 7/19/2017 at 10:29 AM, Knightorday said:

DOMESTIC INTERROGATORIES

This is a communication with a debt collector. Please answer the following interrogatories pursuant to the Louisiana Code of Civil Procedure within (30) days:

I. What is the present name and address of each person to whom you have been married?

II. On what date were you married, Physically separated, and petitioned for divorce relative to each person to whom you have been married?

III. Why do you feel the community should not be held responsible for this obligation?

IV. What community property did you retain after your marriage ended and what was the estimated value of the property on the date of the dissolution?

These are based on LA being a community property state.   I would object to answering about any prior spouse(s) because if you are divorced before the debt they have NO legal obligation what so ever.

I would also object to number 4 on the basis it is a search for assets before any determination of liability has been made by the court.

On 7/20/2017 at 5:04 AM, Knightorday said:

Can anyone give me any information or link to help with the rest of my questions?

You really should consult a consumer attorney in your state.  LA is the one state that still bases a good part of their court system on Napoleonic (French) code vs. the English system the other 49 states use.  You cannot afford to get this wrong.

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2 hours ago, Knightorday said:

Any Help would be appreciative. I only have 14 days left to respond and really don't know how to respond and try to file for arbitration (I have a 2 page arbitration forced arbitration agreement that was signed by both parties)

 

Could you please state the allegations in the complaint word for word?  It might help.

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36 minutes ago, BV80 said:

Could you please state the allegations in the complaint word for word?  It might help.

This is the summons I first received 4 weeks ago and I answered and denied all, stating lacking evidence. They did not send any evidence.

 

Now into court, through the undersigned attorney, comes midland funding llc, domiciled in the state of Delaware, the owner of all rights, title and interest in this receivable issued through ONE Main, which with respect represents:

I. The defendant _________ individual account holder, domiciled in Louisiana is justly indebted unto your petitioner in the full sum of xxxx, together with all costs of these proceedings.

ii. The outstanding balance is due on the defendants consumer loan account bearing xxxxxxx. The interest and attorneys fees stated above were agreed to by the defendant when the account was opened. the defendant has defaulted and the balance remains after amicable demand on xxxxx

Wherefore, petitioner prays for service and citation pursuant to law and after all legal delays and judicial proceedings had, that there be judgment in favor of the petitioner and against the defendant in the full sum set forth above including principal, interest, attorneys fees, and all costs.

Request for admission of fact

Plaintiff herein calls upon the defendant to answer the following requests for admissions of fact within the delays allowed for in accordance with the code of civil procedure article 1466:

1. it is a fact that midland funding llc is the owner of all rights, title and interest in this receivable issued through one main.

2. it is a fact that your outstanding balance on the account is 6500, together with all costs of these proceddings.

3. it is a fact that you applied for and were an consumer loan account bearing #xxxxxxxxxxx (this is the account number that is totally wrong)

4. it is a fact that interest and attorneys fees are authorized either as a result of statute and notice or through your agreement with the creditor.

 

Then I received this letter asking for Note interrogatories

 

This is a communication with a debt collector. Please answer the following interrogatories pursuant to the Louisiana code of civil procedure within thirty days

NOTE INTERROGATORIES

This is a communication with a debt collector. Please answer the interrogatories pursuant to the Louisiana Code of Civil Procedure within thirty days:

I. The creditor indicates a balance on the note of $6500.00 as of January 22, 2017. Do your records reflect otherwise and if so, please describe.

II. The creditor indicates that all funds described in the note were advanced. Do your records reflect otherwise and if so, please describe.

III. The creditor indicates that all payments and credits have been applied to the balance. Do your records reflect otherwise and if so, please describe.

IV. The note includes various terms, including provision for interest and attorneys fees as reflected in the petition. These terms were agreed upon when you signed the note. Please fully describe any terms which you are not accurately reflected in the petition; fully detail the suggested accurate terms; and describe and attach any document which substantiates an agreement as to any different terms.

DOMESTIC INTERROGATORIES

This is a communication with a debt collector. Please answer the following interrogatories pursuant to the Louisiana Code of Civil Procedure within (30) days:

I. What is the present name and address of each person to whom you have been married?

II. On what date were you married, Physically separated, and petitioned for divorce relative to each person to whom you have been married?

III. Why do you feel the community should not be held responsible for this obligation?

IV. What community property did you retain after your marriage ended and what was the estimated value of the property on the date of the dissolution?

 

 

If there is anything else you need please let me know. As I said before this is all I have right now. I have the original contract and arbitration agreement as well if that makes any difference.

 

thank you for your help!

 

 

 

 

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43 minutes ago, Knightorday said:

ii. The outstanding balance is due on the defendants consumer loan account bearing xxxxxxx. The interest and attorneys fees stated above were agreed to by the defendant when the account was opened. the defendant has defaulted and the balance remains after amicable demand on xxxxx

Is the loan number in the above correct?

 

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52 minutes ago, Knightorday said:

No it is not. its not even close.

Okey dokey.

I have to agree and respectfully disagree with @Clydesmom.

Clydesmom is correct that Midland will assign its own account number to a debt because account numbers are company specific.   That applies to any company.  

For example, if you opened an account with ABC Bank, then ABC Bank folded and all its accounts (both current and defaulted) were sold to Capital One, a new account number would be assigned to the account to reflect that it's now a Cap1 account.

This is the same thing.   When an original creditor sells an account to a JDB, the JDB then assigns its own account number to the account.

HOWEVER, in a complaint (lawsuit), the plaintiff is supposed to provide enough information in order for him to know why he's being sued.   They did reference One Main Financial in their discovery requests, but what if you had more than account that went into default with that company?  You would not know for which account you were being sued.

 

Quote

3. it is a fact that you applied for and were an consumer loan account bearing #xxxxxxxxxxx (this is the account number that is totally wrong)

If it were me, I would "deny" and state that I "never had a consumer loan account with One Main Financial bearing #oooooooooo."

Another issue with which I agree with @Clydesmomis that you contact a consumer attorney.  

Do you have a copy of the loan agreement?   If so, does it have an arbitration provision?

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34 minutes ago, Knightorday said:

Yes I have a copy of the loan agreement and it has a separate 2 page arbitration agreement signed both by me and the rep for ONE Main

JDBs like Midland usually don't care for arbitration and will sometimes dismiss a lawsuit in the face of a motion to compel arbitration (as long as the provision applies to you).  There are members on this site that could help determine if the arbitration provision would be to your benefit. 

It would help if you'd upload the agreement or provide the arbitration provision word for word.

@fisthardcheese

@Harry Seaward

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3 hours ago, Knightorday said:

They did not send any evidence.

Does LA require them to?  Many states do not require that any evidence be attached to the complaint or summons.  You have to get that through discovery which is a separate process.

41 minutes ago, Knightorday said:

Yes I have a copy of the loan agreement and it has a separate 2 page arbitration agreement signed both by me and the rep for ONE Main

That is the BEST thing for you.  It allows you to make a very clear argument to the court that the suit is the wrong venue and that if Midland wants to pursue this they are required to arbitrate per the loan agreement.  

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I am going Monday to the Law Library they provide here to learn how to file a motion to compel arbitration. In the interrogates should I mention anything about the right contract number and also the motion to file arbitration?  

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This is a sample MTC that many people have used on this board.  You will want to check your local court rules to make sure this format will work for you, and you will want to change the specific information to fit your own case information and what your actual arbitration provision says.

At this point, if it were me, I would put all my focus into getting the MTC arbitration granted by the court.  I would not worry myself with details of the case, because if the court grants the motion and orders the case to arbitration there is a 99% chance Midland will drop the case instead of going through arbitration.

Does your arbitration contract list JAMS or AAA as the forum for arbitration?  Also, what does it say as to cost of filing?  The filing fee is capped at $200 or $250 for consumers,  but many contracts say they will pay all fees, which would make it free for you to file.

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

 

Respectfully submitted this day ________________, 2014


(Your name typed), Defendant, pro se

 

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I believe it is JAMS at least I saw that some where in the agreement. I will upload it this evening when I am home and hopefully someone can tell me a little more about it.

 

thanks again for all your help

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Ok so from my understanding I should file the motion to compel arbitration ASAP. My only questions are do I send in a copy of the agreement and file it with the court? And do I send a copy to the lawyer via certified mail?

 

thanks

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You need to amend that motion before you file/send it.  You cut and pasted someone else's work based on it being a suit over a credit card.  Your situation is based on a LOAN.  You cannot just use any old motion it has to be modified to be specific to YOUR facts.

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29 minutes ago, Clydesmom said:

You need to amend that motion before you file/send it.  You cut and pasted someone else's work based on it being a suit over a credit card.  Your situation is based on a LOAN.  You cannot just use any old motion it has to be modified to be specific to YOUR facts.

That was fish just giving me an example. I still have to see if that format will even work for here in Louisiana before I modify that example. My question was do I need to send a copy of the arbitration agreement to the lawyer to let them know I plan on pursuing arbitration?  

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19 minutes ago, Knightorday said:

That was fish just giving me an example. I still have to see if that format will even work for here in Louisiana before I modify that example. My question was do I need to send a copy of the arbitration agreement to the lawyer to let them know I plan on pursuing arbitration?  

Does the arbitration provision reference the Federal Arbitration Act?   Does it reference JAMS and/or AAA?

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This agreement you posted lists AAA, not JAMS.  It also has a small claims court exception.   If you are not in small claims, you will need to make sure your claims plus their claims against you exceed $15k.

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28 minutes ago, fisthardcheese said:

This agreement you posted lists AAA, not JAMS.  It also has a small claims court exception.   If you are not in small claims, you will need to make sure your claims plus their claims against you exceed $15k.

It lists JAMS in the appeal section. "Appeal. Either you or We may appeal the arbitrator's award in accordance with the then applicable Optional Appeals Procedures of Jams or in accordance with procedures otherwise agreed to by You and Us"

But if it is AAA ok what is the difference? IT is not in small claims court.

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