LabLady

Please HELP..being by Midland Funding in MI

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@LabLady

Well, in my non-attorney opinion, the plaintiff's attorney is full of horse hockey.

Her reference to "future" liability is not in the release.  If it had been in there, you would not be able to bring future claims against them.

However, it's not there.   Read Powerhouse Gyms Monroe, Inc. v. Powerhouse of Monroe, Inc. (MI Court of Appeals, 2008) and Stolaruk Corporation v. Central National Insurance Company of Omaha (MI Court of Appeals, 1994).

In those lawsuits, the releases included the word "future". 

However, in Hines v. G. Reynolds Sims & Associates, PC (E.D. of MI, 2013) (federal court), the release did not include the word future and was, therefore, ambiguous as to future claims.  The federal court referenced Stolaruk and determined that the court had to decide whether or not future claims were allowed or barred.

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@BV80

Ok, read some parts of the cases suggested above.... so do I want the word "future" or not? ...

I would yes, because they could come back on me for anything..... but the I say no, because I could not come back on them for anything either. I like the idea of having the latter open, in case they do end of violating some of the FDCPA's rules....

However, I do want this over with.... and I am happy that I do not have any garnishments..... I don't know what I should do.

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16 minutes ago, LabLady said:

@BV80

Ok, read some parts of the cases suggested above.... so do I want the word "future" or not? ...

I would yes, because they could come back on me for anything..... but the I say no, because I could not come back on them for anything either. I like the idea of having the latter open, in case they do end of violating some of the FDCPA's rules....

However, I do want this over with.... and I am happy that I do not have any garnishments..... I don't know what I should do.

I would not want the word "future".

They can't do anything more to you.  "Dismissed with prejudice" means no more lawsuits against you.

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Here is my answer to all questions:

I would sign this stipulated dismissal with prejudice as written.

I would not worry about credit reports right now, because you have 2 solid things in your favor -  #1 Dismissal WITH prejudice and #2 Release of liability.  Those 2 things mean that this is no longer your debt. Period.  Once this thing is signed by both parties and the court, it is final.  You can then use this to dispute the account with the CRAs and if they respond with anything other than full removal, you would have a right to sue midland for $1k PER credit report that it still remains on.

I would sign their Dismissal and send it back to them.  They will then sign and file it.  All you must do is verify that it has been filed by the court and then I would ask the court for a copy once signed by the judge.

As far as JAMS, no the court dismissal does not do anything.  You will need to file your own dismissal of the JAMS case.  I would wait until I have verified that the Dismissal is filed in court. and then just send a simple email to JAMS stating that the parties have reached a settlement and that you wish to dismiss all claims in this matter.

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https://mjieducation.mi.gov/documents/benchbooks/15-civilbb/file

Michigan Judicial Institute Page 2-61 Civil Proceedings Benchbook Section 2.16

B. Prerequisites for Applying Res Judicata
“There are three prerequisites to the application of the res judicata doctrine: (1) there must have been a prior decision on the merits; (2) the issues must have been resolved in the first action, either because they were actually litigated or because they might have been presented in the first action; and (3) both actions must be between the same parties or their privies. . . . Michigan courts apply the res judicata doctrine broadly so as to bar claims that were actually litigated as well as claims arising out of the same transaction which a plaintiff could have brought, but did not.” VanDeventer v Michigan Nat’l Bank, 172 Mich App 456, 464 (1988) (internal citations omitted).
“‘The transactional test provides that the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief.’” Adair v Michigan Dep’t of Ed, 317 Mich App 355, 366 (2016) (Adair III), quoting Adair v Michigan, 470 Mich 105, 124 (2004) (Adair II) (additional citation and quotation omitted). The same transaction test for res judicata is “‘whether the facts are related in time, space, origin or motivation, [and] whether they form a convenient trial unit[.]’” Marketplace of Rochester Hills Parcel B, LLC v Comerica Bank, 498 Mich 934 (2015), quoting Adair II, 470 Mich at 125 (additional citation and quotation omitted).

 

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@fisthardcheese

Thank you for answering my all my questions.... sounds good to me. 

I pulled  a credit report and Midland is on it as a closed account, but it says I have nothing in collections, as of Oct 9....  

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5 minutes ago, LabLady said:

@fisthardcheese

Thank you for answering my all my questions.... sounds good to me. 

I pulled  a credit report and Midland is on it as a closed account, but it says I have nothing in collections, as of Oct 9....  

Let me tell you a story:

Once upon a time I was sued by Midland.  I forced a dismissal with prejudice, much like you have.  Several months later, Midland was no longer reporting anything, but was still pull my credit report as "account review" inquiries.  Given that I had a "dismissal with prejudice", there was no longer any account for them to "review" and, therefore, they were illegally obtaining copies of my credit report each month. Midland suddenly found themselves on the other end of a lawsuit by me.  I can tell you, nothing is more satisfying than beating Midland in court when they sue you and then turning around and getting a settlement check from them when you sue them back.

Morale of this story:  When you get that golden ticket as you just have had delivered to your email, you make sure that Midland's name never appears on your credit report again or you collect a settlement from them.  :)

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@LabLady Your thread has so much valuable information in it. Before you skip off to live happily ever after, please make sure that the final drafts of your documents, plus any missing documents, are posted or linked to here. This is how you can pay it forward for the next person coming along. I have a feeling we'll be recommending Michigan newbies use your thread as a valuable resource. 

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Just now, fisthardcheese said:

Midland suddenly found themselves on the other end of a lawsuit by me.  I can tell you, nothing is more satisfying than beating Midland in court when they sue you and then turning around and getting a settlement check from them when you sue them back.

I couldn't agree more, although I'm not allowed to talk about it. ;)

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2 minutes ago, Brotherskeeper said:

@LabLady Your thread has so much valuable information in it. Before you skip off to live happily ever after, please make sure that the final drafts of your documents, plus any missing documents, are posted or linked to here. This is how you can pay it forward for the next person coming along. I have a feeling we'll be recommending Michigan newbies use your thread as a valuable resource. 

I would be more than happy to help! I'll work on that this weekend! Thanks you again so much! 

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7 hours ago, LabLady said:

@fisthardcheese

Thank you for answering my all my questions.... sounds good to me. 

I pulled  a credit report and Midland is on it as a closed account, but it says I have nothing in collections, as of Oct 9....  

You did well for yourself and saw this through a successful conclusion. And yes, do try to pay it forward.

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Here are the steps I took, along with their files.

First, I filed an answer and affirmative defenses. I attached an affidavit, a copy of the credit card agreement (Exhibit A), and also a copy of the letter (Exhibit B) that sent to Plaintiff's attorneys notifying them that I was electing arbitration.

LAWFIRM.ARB.ELECTION.LETTER.EXHIBIT.b.docx

ANSWER.DEFENSES.docx

AFFIDAVIT.docx

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That same day and time, I filed a Motion to Compel Arbitration, it was also attached to my affidavit and had the two exhibits attached.

I sent both the Answer and MTCA via USPS certified return receipt in a large pack, then sent the letter I sent to them notifying them of the arbitration election in a separate smaller envelope, also sent via certified return receipt.

MTC.ARB.docx

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After I received my green cards back in the mail, I filled out a JAMS application and sent it to them certified return receipt with a cover letter.

They contacted me via email in a few days, and said they would take the case. They also sent me documents by mail.

JAMS.app.pdf

JAMS.COVER.LETTER.docx

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The rest of the time, I tried to familiarize myself with the Michigan Court Rules and how/what to do in court, because I have zero experience. I spent a lot time reading threads on this website and taking notes, and probably absolutely annoying everyone on here with all my newbie questions :).

But everyone was great, and I owe my success to all them for all of the advice and help they gave me.

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Finally, only 5 days before my MTCA hearing I received a reply from the Plaintiff's attorney, opposing my motion. They filed it late and I filed a sur-reply in response to their opposition, noting first their late reply.

I sent a copy of my sur-ply to the Plaintiff's attorney's and also in good faith, contacted the attorney and sent them one via fax.

We, by this time had occasionally e-mailed back and forth thanks to the JAMS contact I had, and I printed and saved every email that I had and brought them with me to court.

SURREPLY.docx

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On the day of the hearing, the Judge spoke first, and it was pretty apparent that he was going to grant my motion. So, I listened and just tried not to make him mad, and only spoke when I was spoken to. The Plaintiff's late reply was never even brought up, but he did say that I had done everything I that I was supposed to do to initiate arbitration.

I had written an opening argument, and brought copies of all my paperwork and emails, and also brought copies of a proposed order for them to sign (attached below).

At the end, the Judge agreed to use my order and signed it right then, and it took less than a week for their attorney to contact me and let me know that the case was going to be dismissed without prejudice because they did not want to arbitrate.

 

JUDGES.COPY.docx

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On the same day that I was granted my motion, I contacted JAMS and let them know that the motion had been granted. The Plaintiff's attorney then told her they were dismissing the case, but my JAMS contact wanted to know what I wanted to do about the arbitration. After a couple of emails, which are copied in a few posts above, the attorney said that she would stipulate the dismissal, and relieve me of all liability and also dismiss with prejudice

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Right now I am waiting for the attorney to file the stipulation and for the Judge to sign it, then I will go get a copy and contact JAMS and let them know that I will be dismissing my claim. Then this will be over!

I apologize if I forgot anything and  for some reason I am no longer getting any notifications from this website when I have them. So, if I can ever be of help to anyone, you can reach me via email the fastest:   tiffany1758@gmail.com .

Thank you again all so much for all the help, especially @Brotherskeeper, I could never have done this on my own and you guys are all great! I am so glad I found this website!

Please do not hesitate to contact me, as I would love to help anyone do what I was able to do.

And to the newbies: this can be done! The worst part was waiting outside of the court room and then going in.... I was physically shaking the whole time, but I did it and it was so worth it!

Thank you!

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On 10/29/2017 at 9:30 PM, LabLady said:

Right now I am waiting for the attorney to file the stipulation and for the Judge to sign it, then I will go get a copy and contact JAMS and let them know that I will be dismissing my claim. Then this will be over!

I apologize if I forgot anything and  for some reason I am no longer getting any notifications from this website when I have them. So, if I can ever be of help to anyone, you can reach me via email the fastest:   tiffany1758@gmail.com .

Thank you again all so much for all the help, especially @Brotherskeeper, I could never have done this on my own and you guys are all great! I am so glad I found this website!

Please do not hesitate to contact me, as I would love to help anyone do what I was able to do.

And to the newbies: this can be done! The worst part was waiting outside of the court room and then going in.... I was physically shaking the whole time, but I did it and it was so worth it!

Thank you!

Post the arbitration process to my sticky about defending a lawsuit.

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On 10/31/2017 at 8:18 PM, bmc100 said:

Post the arbitration process to my sticky about defending a lawsuit.

I'm sorry. ...what's a sticky? 

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