Jump to content

Midland Funding Civil Summons


hoponpop
 Share

Recommended Posts

Hi.  I had a heart attack and got behind on bills because there were so many.  I contacted this Company to ask for help and they wouldn't give any so I put my money to the accounts that would work with us. Now I have received a Civil Summons from Midland Funding and would appreciate any help I can get.  Due to a surgery, I don't have a lot of time left to figure this out.  My court date is November 29th.  According to other posts, I've tried to include information that was requested.

Who is the plaintiff?  Midland Funding LLC as successor in interest to Synchrony Bank

What's the name of the Law firm?  Finkelstein Kern Steinberg & Cunningham

How much is owed?  $1207.62

Who is the original creditor?  Synchrony Bank/Amazon Store Card

How do you know you're being sued?  A woman delivered a Civil Summons to my home

What state and county do you live in?  Tennessee, Montgomery

What is the last date of payment?  6-9-16

What is the SOL on the debt?  6 years

Have you disputed the debt?  No

Did you request validation?  No

How long do you have to respond?  Court date is 11-29-17

What evidence is included with the summons?  An affidavit of Jane Kellner showing: Balance owed-$1207.62 as of 8-22-17, Account opened on 12-1-13, Last payment made 6-9-16, Charged off on 1-11-17, Account sold from Synchrony Bank through entity Synchrony Bank formerly known as GE Capital Retail Bank to Midland Funding LLC on 2-27-17

Note:  Affidavit is from Minnesota, Stearns County 8-29-17

I would like to know what my option are if I have any.  I also would like to know what happens if I can't pay this?  Should I call to try and settle before the court date?  The account is in my name.  I don't work.  The mortgage is in my husbands name, but I am on the deed.  Can they come after my house?  I would like to know how to proceed so I don't make things worse.  

Link to comment
Share on other sites

First, look at  Midland's consumer bill of rights:

https://www.midlandcreditonline.com/who-is-mcm/our-pledge/

Specifically:  -We suspend collection activities when a consumer demonstrates that he or she is experiencing significant financial hardship due to medical issues.

It might be worth a try to contact the Midland attorney and explain your illness and hardship.

Second, arbitration is a powerful tool against JDBs like Midland.

The Synchrony agreements usually include a good arbitration clause, including JAMS and the creditor will pay all arb fees.  Midland won't arbitrate for a $1200 debt.

Link to comment
Share on other sites

On 11/16/2017 at 2:52 PM, hoponpop said:

If I contact them and they won't dismiss it or settle for a lesser amount, how would I go about doing the arbitration you mentioned? Thanks so much!!

File an answer denying everything but your name and address.  In the answer, include a section titled "affirmative defenses" and state the the claims Midland has made against you are subject to an arbitration clause of the original credit card agreement.  Then file a motion to compel private contractual arbitration.  In that motion point out that the agreement provides that any party may demand arbitration to resolve the claims, and in doing so, the case can no longer be heard in court and must be ordered into arbitration.  Attach to the motion a copy of the card agreement, and highlight the section I just described.  I also recommend people prepare an affidavit (must be notarized) that declares under penalty of perjury that the attached agreement is a true and correct copy of the agreement that was in effect during the life of the account.

If the court grants your motion, Midland will dismiss the case.

Link to comment
Share on other sites

Sorry if I'm being difficult, but I'm a bit confused.  If I contact them and say that I've had medical issues, then how could I later follow with an affidavit that says I'm denying it?  I've already told them basically it's mine due to medical issues.  Which of these is my best option? Or the option I should try first? 

Link to comment
Share on other sites

If this were me, I would not contact Midland right now.  I would just file the answer in court and a Motion to Compel Arbitration.  The Synchrony card agreements have free JAMS in them, which is great for you.  Midland does not arbitrate cases like this because it will cost them 10x the amount they are suing for to hold an arbitration hearing and they will have to pay the full bill for that.

Under your denial of all claims in your answer, I would add the Affirmative Defense of "Lack of subject matter jurisdiction.  The governing contract contains a private arbitration clause and therefore, this court lacks jurisdiction over this subject matter."

You are basically telling the court that this contract dispute is a matter for JAMS arbitration to hear and not the court.  Whether you owe the money or not, or whether Midland can prove they actually own the rights to collect on this account or not, are all matters to hear in arbitration since court is the wrong venue for this case.  That will be your essential argument.  You must think of it like this:  We will not even get into the merits of what, how and who may or may not be owed until we first get this case into the proper venue - and that venue is JAMS arbitration as described in the Synchrony card agreement.

Link to comment
Share on other sites

Sample MTC is below.  You will need to get a copy of your Synchrony Card agreement and change this sample to reflect what your actual agreement says about arbitration:

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND 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 moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

3. 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.


4. 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”.

5. 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 . . . "

6. 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

Link to comment
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.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.