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Sued by Midland - Georgia


TargSnow
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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.)

            Greene & Cooper

3. How much are you being sued for?

            ~$2100

4. Who is the original creditor? (if not the Plaintiff)

            Synchrony Bank

5. How do you know you are being sued? (You were served, right?)

            Dozens of letters from bankruptcy attorneys -_-

Served 11/27/2017

6. How were you served? (Mail, In person, Notice on door)

            In person. Guy gave my mom the papers

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

            Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

            Around June, midland sent a letter saying to pay them or my account will go to an attorney. Around August I got a letter from G&C saying they represent midland and I could request DV. I did. They sent a bunch of forms that were 75% redacted.

9. What state and county do you live in?

            Cobb County, GA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

            2016

11. When did you open the account (looking to establish what card agreement may be applicable)?

            2015

12. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

            6 years

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

            suit served

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

            with the collection agency

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

            Yes

16. 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. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

            30 days.

            I did not receive an interrogatory regarding the lawsuit.

            “That said claim is in the amount of ‘~$2100’ and all costs of this action. Midland Funding LLC purchased this account. The original credit grantor is to Synchrony Bank. The original account number is ****. All exhibits attached hereto support the foregoing allegations and by reference are made part of this statement of claim.”

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

            Exhibit A: Statement from 5/16

            Exhibit B: Statement from 9/16

            Exhibit C: Bill of Sale from OC, Affidavit of Sale from OC, and Blanket Certificate of Conformity for Notary

            Exhibit D: Field Data (name, dob, charge off date, contract date)

            Exhibit E: Affidavit from Midland’s legal specialist stating that she reviewed the account

 

 

The statement of claim is throwing me off because there isn’t a list of allegations for me to admit or deny like I've seen in other posts. How can I properly answer this?

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UGH the software on this site sucks.

You do not need a formal answer like you see for other courts.  If you are in Magistrate Court Cobb County has a preprinted answer form where you just check off "Denied" and sign/submit it to the clerk.  They will give you a court date about 30 days out.

In the mean time type up a Motion to Compel Arbitration and have 3 copies with you the day of the hearing.  Study up on using arbitration in the GA courts to defeat a junk debt buyer on the forum here.

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Thanks! I submitted my answer to the clerks but they didn't give me a court date. The clerk initially said she didn't see my service sheet in the system and wasn't going to let me file my answer. Then a different clerk told her that because I had my packet it meant I had to have been served and to let me submit the answer. There's no court date listed on the docket report online either. I'll call in a few days to see what they say. 

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14 hours ago, TargSnow said:

Thanks! I submitted my answer to the clerks but they didn't give me a court date. The clerk initially said she didn't see my service sheet in the system and wasn't going to let me file my answer. Then a different clerk told her that because I had my packet it meant I had to have been served and to let me submit the answer. There's no court date listed on the docket report online either. I'll call in a few days to see what they say. 

They do not usually issue the court date right then and there.  The Magistrate Calendar has to be checked for an open docket day.  Given how close it is to the end of the year and the holidays coming it might be next year before you are heard.  Usually takes 30-60 days to have a date on the calendar. The court will notify you and the Plaintiff but watch the docket on line to be safe.

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  • 2 weeks later...

I just got a letter saying my court date is January 3rd. They helped me out a bit because I was having trouble finding the right credit card agreement. Last week G&C sent a proposed consent judgement with the full credit card agreement enclosed. So that helps. 

I've been reading similar posts. So far I need to type up an MTC arbitration and make 3 copies, make 3 copies of the credit card agreement, and show up to court in hopes that the judge grants arbitration . Am I missing anything?

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11 hours ago, TargSnow said:

I've been reading similar posts. So far I need to type up an MTC arbitration and make 3 copies, make 3 copies of the credit card agreement, and show up to court in hopes that the judge grants arbitration . Am I missing anything?

That is what you need to do.

11 hours ago, TargSnow said:

I just got a letter saying my court date is January 3rd. They helped me out a bit because I was having trouble finding the right credit card agreement. Last week G&C sent a proposed consent judgement with the full credit card agreement enclosed. So that helps. 

If you want to really push boundaries you can send a CMRR letter to G&C stating you decline their offer of consent judgment and after reading the copy of the card agreement they attached you are filing for arbitration in JAMS.  I would see what their response is.  BUT, keep in mind sometimes not disclosing your intentions is better.  You have to weigh which option will bring you the best success:  ambushing them at the court hearing with the motion or telling them in advance hoping Midland drops the whole thing before court.  Option 1 gives them no opportunity to craft a defense to your motion that might sway the magistrate to deny it.  Option 2 could end it without ever having to go to court but there is a risk that it gives them time to defend the motion.  (You would have to be prepared to appeal the denial to a higher court if that did happen.  The strategy is not for everyone)

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Okay so I have a really dumb question. 

On the MTC I found, it says, "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below.”

On the credit card agreement they sent it says, "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or v  if it relates to your account, except as noted below.”

Its just the letter v... Should I assume that's a typo in the agreement? And should I change the MTC to match the typo even though it probably should say Amazon.com?

 

 

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1 hour ago, TargSnow said:

Should I assume that's a typo in the agreement?

Yes.

1 hour ago, TargSnow said:

And should I change the MTC to match the typo even though it probably should say Amazon.com?

Yes, but add [sic] after v like so:
".......and us, our affiliates, agents and/or v [sic]  if it relates to your account......."

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If they sent an agreement to you, use that one.  They can't then make their usual argument that you don't have the correct one.

When the attorney meets with you prior to the hearing, they will immediately ask you how you want to settle or make payments.  Don't answer that, instead just say that you still deny their allegations and wish to use your right to arbitration per the card agreement they included with their complaint.  Then present your MTC to them.

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  • 2 weeks later...
10 minutes ago, TargSnow said:

Help. The attorney just told the judge that I would’ve had to file my mtc before the court date. And the judge allowed a break for the attorney to provide case law stating such. What can I do?

 

No you were not required to do so if you are in Magistrate Court.  Magistrate Court does not allow discovery without special permission or motions filed in advance.  Had you tried to file in advance the clerk would have told you to bring the motion with you on the scheduled date.  Even if you forced the issue NO Magistrate would have reviewed it nor would the court have sent a copy to the attorney.  They would have stamped it and put it in the file for the actual court date.  

The attorney is not even familiar with Magistrate Court Rules of Civil Procedure.

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https://law.justia.com/cases/georgia/court-of-appeals/2010/a10a0621.html

This looks like the case. Appears they will argue that the provided CC Agreement doesn't clearly establish arbitration as an option, and that both parties have to agree to arbitration, or it stays in court.

Quote

Under both Georgia and federal law,

[a]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Therefore, the question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination.

They go on to say that the plaintiff (the debt buyer initiated arbitration in this case) didn't provide clear evidence of a contract that set forth the terms of arbitration.

Quote

The only evidence of an arbitration agreement was an undated, unauthenticated photocopy of certain "additional" terms and conditions of an MBNA credit agreement that CACV attached to its amended petition to confirm the arbitration award. There was no evidence, however, showing that Yates's contract with MBNA was governed by these provisions. Specifically, CACV did not submit a copy of any credit card application or agreement executed by Yates; nor did it submit an affidavit or other evidence showing the date Yates entered into a credit agreement with MBNA and that the photocopied terms and conditions represented the terms and conditions in effect for all MBNA credit agreements at that time.

The contract bit seems desperate, as in Yates it sounds like they provided various amendments, rather than an actual contract with an affidavit. We've seen the "judicial determination" thing in AZ when a defendant was being a jerk and judge ruled against arbitration on personal grounds. That case was reversed on appeal. 

If you have a clear copy of CC agreement that was in force at time account was in good standing, it seems the Yates arguments should fail.

I'm curious what part of Yates they will argue, or if it's just a smoke screen.

 

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Quote

Moreover, because it had purchased the debt from MBNA, CACV was required to submit not only documentary evidence of its assignment but also an affidavit authenticating such documents. See Roberson, supra, 250 Ga.App. at 351(1)(a), 553 S.E.2d 162. See also MBNA America Bank v. Straub.[14] Here, CACV attached to its petition a photocopy of a document titled "Bill of Sale and Assignment of Loans" as evidence that it was the assignee of MBNA's rights under the bank's credit agreement with Yates. CACV, however, did not file a supporting affidavit authenticating that document. Furthermore, the alleged assignment stated that it was an assignment of MBNA's rights "to each of the Loans identified in the loan schedule ("Loan Schedule") attached hereto. . . ." The photocopied document submitted by CACV, however, did not have an attached Loan Schedule and therefore did not demonstrate that Yates's loan had been assigned to CACV.

If I'm Midland's lawyer, I probably use this. I would argue that, since the debt is being disputed, it is up to the court to determine if any agreement exists between the parties, let alone any agreement to arbitrate. Basically I would use same argument, as a debt buyer, that we used to use against them: "Your honor, you can't make us arbitrate an account that your court has not determined that we even own."

It's totally ridiculous, but that's the crux of Yates.

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1 hour ago, TargSnow said:

Help. The attorney just told the judge that I would’ve had to file my mtc before the court date. And the judge allowed a break for the attorney to provide case law stating such. What can I do?

Maybe I'm really missing something, but there is nothing in Yates about not filing an MTC on time. Yates concerns an arbitration that already took place - no case law about when to compel.

 

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The opposing case law is what is already in your MTC:  Conception v ATT Mobile.  It says that arbitration MUST be the method of resolution if a contract contains an arbitration agreement.  In your case, there is a clear arbitration agreement.  The FCC nor the Supreme Court says anything about WHEN the arbitration should be ordered, and I would point out that this case has not yet been tried or heard in court, therefore, the objection to proper venue is timely and arbitration should be ordered.

 

Although I have a feeling this has probably already been resolved in court by now.  If it did not go your way, let us know and we can tell you how to appeal if need be.  The GA Magistrate appeal is de novo and fairly simple.  It means essentially you get another shot at it and nothing from the Magistrate Court case is brought into the appeal. Everything starts over new and the "real" court should grant your MTC upon appeal.

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Yates is all over the map, but the only issue of substance is that the appeals court found that CACV did not provide enough evidence to allow the lower court to find that an agreement to arbitrate existed. It seems that a CC Agreement from the time in question, along with an affidavit, should be enough to clear all hurdles presented by this ruling.

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2 minutes ago, Goody_Ouchless said:

Yates is all over the map, but the only issue of substance is that the appeals court found that CACV did not provide enough evidence to allow the lower court to find that an agreement to arbitrate existed. It seems that a CC Agreement from the time in question, along with an affidavit, should be enough to clear all hurdles presented by this ruling.

I think this is just the usual "make any argument possible against arbitration" tactic in hopes that it flusters a prose into not being able to retort and/or they get a pro-creditor judge who uses it as an excuse to rule in their favor.

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Geez that was stressful. Thanks to everyone my motion was granted! 

The lawyer tried to lie in the hallway. She said that the agreement doesn't apply to her client because the agreement was between me and Synchrony. I told her that they're claiming to have purchased the account so that means they've stepped in Synchrony's place.  Its funny how her tone changed from sweet and caring when offering a payment plan to flat and short once I pulled out my MTC. 

She didn't bring that argument to the judge, but instead went with "The defendant waived her right to arbitration when she answered without filing the motion." The judge gave her time to provide the case law she claimed to have. Luckily I overheard her tell the clerk(who might've been her friend) that she was going with "the SunTrust case" because they never showed me these files. I had a chance to google it and write down some points before the judge called us back up. However, I didn't have to say anything about the SunTrust case being irrelevant to mine because the judge made all of those points for me. 

The judge did say something that confused me a bit. She said, "We are not dismissing the case. We don't dismiss these cases. We'll stay the case for 60 days. You'll be responsible for starting the JAMS proceedings and of course if that doesn't go anywhere we'll let the case play out in court." So this clearly means if I don't follow the required steps, I'll lose my case. But if nothing happens in JAMS due to non-payment by Midland, will the judge dismiss the case(with prejudice??) I don't mind paying the $250 filing fee. The judge was reaaaalllly hesitant about granting the motion so I don't want to do anything to jeopardize this. 

(sorry for the novel haha)

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You did a great job.  The attorney lying about arbitration is normal.  As is the sneaky ambush of case law/evidence in magistrate court.

Don't worry about the stay in court. That is normal as well.  File the JAMS case.  I would not send any money, as that Synchrony agreement says you don't have to.  Let JAMS decide who owes the filing fees (HINT: It won't be you).  Once you file and get your case number from JAMS, you will have great leverage over this JDB.

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