Mx-52010

Going against Midland Funding tomorrow Please Help

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This is extremely helpful and I really hope it works. I'm going to be stone cold and say as little as possible and wear a suit. This is some intimidating stuff but you've helped a ton

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What do you think will be the outcomes of tomorrow (basically what will I know). Will the lawfirm and/or judge immediately dismiss it if they do not wish to move to arbitration? Will they threaten to go the distance with it on that route and I should just ignore them and eventually hopefully get something in the mail. Just trying to prepare myself mentally of outcomes because I can't imagine they will be happy I am doing this

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Oh my, two more thing

How much do the notaries cost, if anything at the clerk (should I have a check or money ready)

And what do I do if they ask why it took me so long to request motion for arbitration since i'm doing it the day of my court date to appear?  Just any feedback or "just shut up would be your best defense" responses are welcome. I do analyze a lot and don't want to say the wrong thing etc. Please advise! 

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1 hour ago, Mx-52010 said:

Can I just put midland funding as the plantiff or do I need to use names? Like I said there are two of them. two women

The plaintiff is "Midland Funding, LLC."  The women aren't plaintiffs.  They are merely employees or representatives of Midland.

49 minutes ago, Mx-52010 said:

What do you think will be the outcomes of tomorrow (basically what will I know). Will the lawfirm and/or judge immediately dismiss it if they do not wish to move to arbitration? Will they threaten to go the distance with it on that route and I should just ignore them and eventually hopefully get something in the mail. Just trying to prepare myself mentally of outcomes because I can't imagine they will be happy I am doing this

If it's a Midland lawyer that shows up tomorrow, they will do everything they can to convince you to drop the arbitration idea. They will swear on their mother's grave that they will see it all the way through to the end and will win everything and you'll be stuck with the full judgment and all of their costs and fees.  It's BS.  Per the agreement, they cannot stick you with their arbitration fees, which as I said are going to be around $5,000.  At most, they could get the arbitrator to order you to pay their legal fees, but even there, these lawyers have capped fee agreements with Midland, meaning that no matter how much time a lawyer spends on a case, Midland will never pay more than a capped amount (usually, $750-$1500 depending on a few factors). The agreement says you are only responsible for the amount Midland pays in legal fees (except for arbitration, when you pay none of the costs associated with arbitration).  If Midland only pays $750 to they lawyer, you can only be ordered to pay that amount.  So really, it's the lawyers that are taking it in the shorts on these lawsuits.  (All of this info on fees, etc is only if you were to go to trial and lose.  If the case is dismissed, you pay nothing at all.)

Chances are the person that shows up tomorrow won't be a Midland lawyer, but will instead be a 'rent-a-lawyer' that has been hired to stand in for Midland's actual lawyer.  In that case, he/she will have instructions to pressure you into settling but know little-to-nothing at all about your specific case.

In either case, what's likely going to happen is the court will set a deadline for Midland to respond to your motion to compel (usually 20 days, or whatever your local rules say).  You want to keep an eye on the case.  Midland has been known to claim they mail their response to you when they actually don't.  If you see a response has been filed with the court, you need to get a copy of it from the court ASAP because you only have a very few days to reply.  After you file your reply to their response, you then wait for the court to rule.  It can take several days or even weeks for this to happen, so just sit tight.  If you notice in the Tennessee Code I cited (29-5-303), paragraph 'd' says the proceedings in the case "shall" be stayed pending the court's ruling on the motion.

The court may set other dates, like a status conference for 60 days out or something and possibly a trial date for 90 days out.  If your MTC is granted, you won't see trial, and I would imagine Midland would dismiss before 60 days.

1 hour ago, Mx-52010 said:

and will they ask "WHY?" and what would one say that wants to move to arbitration that sounds like they know what they are doing?

Because the agreement says you can.  :)  You can say you believe arbitration to be a more friendly sounding place for someone representing themselves.  But really, you don't have to give a reason.  It's a right you have that was given to you by Synchrony that Midland has to go along with because they now own the debt and with it, all rights as well as responsibilities as what Synchrony had.

46 minutes ago, Mx-52010 said:

How much do the notaries cost, if anything at the clerk (should I have a check or money ready)

I don't know, and I don't even know if a clerk can notarize something.  I usually have it done at my bank for free.

47 minutes ago, Mx-52010 said:

And what do I do if they ask why it took me so long to request motion for arbitration since i'm doing it the day of my court date to appear?  Just any feedback or "just shut up would be your best defense" responses are welcome. I do analyze a lot and don't want to say the wrong thing etc. Please advise! 

How long has it been?  It sounds like so far you've only been served and filed an answer. So like a month ago you were served?  If that's all it's been, don't sweat it.  If they act like it's been a long time, say you didn't know arbitration was an option until yesterday.  Unless your rules or caselaw says that filing an answer waives your right to arbitration, you're fine.  

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I sat  there for hours while they called out all the people that didn't show up then waited my turn thinking i'd actually be talking to a judge and a lawyer but it was just this old man that said i'd need to update my response to the complaint to the law office in a letter. I got everything filed in the court (my whole packet) so they will have that, I got my copies stamped. My new court date is in early march which means I have time to research more and prepare. Will that be a for-sure go or do you think they may back off after I send the letter and arbitrary section to the law firm? 

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I bet they hit you with a motion for summary judgment (MSJ) in the next month.  Thing is the proceedings have been stayed by your pending motion to compel so the court can't rule on anything until you have a ruling on your MTC. If the court grants the MTC, it's my opinion that the court has to either deny a MSJ or set it aside until arbitration is done. 

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We've them go both ways. Smart ones will fold rather than waste anymore time. All those people that didn't show up today - that is where they make all their money. They could get a 100 default judgments in less than the time it will take them to oppose your motion. 

I believe you may want to open a case with JAMS and provide that information to Midland's lawyer and court. Others can provide more detail, but I think you ask for Midland to pay your fee. This shows both sides you are serious.

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11 minutes ago, Goody_Ouchless said:

They won't follow.

Even if they did and you lose, it's no different than if you had stayed in court. You would lose either way.  The card agreement and capped fee agreement ensures you won't pay anything more in court/legal fees either. 

But, I concur.  They won't follow you for $3,000.

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You guys have been awesome. I guess I'll keep you posted. Will they for sure have me at least go to the court date to provide the packet or do you think they would jump ship just because of my change of avenue? I guess I'm probably def going to court haha

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Oh hey I havn't been served yet just a letter from Cavalry on behalf of Citibank. Seems like ya'll have experience with cavalry. Obviously I will wait until they serve me. However, Barclay sent me mail that said "Upon the Plaintiff's Motion, it is Ordered that this civil action is non-suited without prejudice, at the Plantiff's cost". In  a nutshell, they stopped trying but can re-open it (isn't that what without prejudice means?)

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2 hours ago, Mx-52010 said:

Will they for sure have me at least go to the court date to provide the packet

Did you not file the packet with the court today? 

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I'm not sure then why you're asking about going to court to provide the packet.  You just mail Midland's copy to their lawyer and you're done.  They will then file their response with some nonsense about it costing them too much or the agreement doesn't apply to them or whatever.  You reply accordingly and hope you have a judge that knows how to read statutes.

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19 hours ago, Mx-52010 said:

Oh hey I havn't been served yet just a letter from Cavalry on behalf of Citibank. Seems like ya'll have experience with cavalry. Obviously I will wait until they serve me. However, Barclay sent me mail that said "Upon the Plaintiff's Motion, it is Ordered that this civil action is non-suited without prejudice, at the Plantiff's cost". In  a nutshell, they stopped trying but can re-open it (isn't that what without prejudice means?)

Yes, they can re-sue, but I don't think we've ever seen that. They have so many new cases that going back to one they found problematic doesn't make sense, and Midland doesn't re-sell debts and I assume Cavalry would follow same practice.

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1.  Midland will not just fold until your MTC is granted by the court.  This will likely require another court appearance.  Do not miss court.  Show up and make sure your MTC is GRANTED by the court.

2.  Is Barclay's the same account as Citi that Calvary now has?  If this were me, I would file a JAMS case right now on that before they could sue me again.  It may make things easier later.

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36 minutes ago, fisthardcheese said:

1.  Midland will not just fold until your MTC is granted by the court.  This will likely require another court appearance.  Do not miss court.  Show up and make sure your MTC is GRANTED by the court.

2.  Is Barclay's the same account as Citi that Calvary now has?  If this were me, I would file a JAMS case right now on that before they could sue me again.  It may make things easier later.

@fisthardcheese Thank you for responding the day before Christmas.  You always go the extra mile to help others.  Happy Holidays to you.

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Like spending the 250 or 275 whatever on the JAMS site? Should I call the court to find out if it was granted? Would they be able to tell me?

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I never send money into JAMS (or AAA) to file.  If they determine I am responsible for the $250, they will let me know and I can decide to pay it at that time.  But just to start the process and get a case number for proof of filing, no money is needed up front.

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On 12/13/2017 at 6:39 PM, Harry Seaward said:

@Mx-52010

If I were you, I would:

1. Write a letter to Midland's lawyer notifying them you demand arbitration to settle their claims against you.  One line is fine. "I demand arbitration in accordance with the governing credit card agreement."  Give this to Midland's lawyer as soon as you encounter them.  (They will tell you arbitration costs more or doesn't apply or some other nonsense to talk you out of it.  Smile and say that's fine or you don't agree or whatever you need to say to get past them so you can let the court know you want to arbitrate the claims per your Motion to Compel.)

2. Write a Motion to Compel Private Contractual Arbitration that looks like the one attached, print out a copy of a Synchrony credit card agreement (find one here: https://www.consumerfinance.gov/credit-cards/agreements/) and prepare an affidavit that swears under oath that the arbitration provision of the attached agreement is materially identical to that which was in effect during the life of your account.  The affidavit is not necessary, but stops Midland from claiming there is no agreement or the agreement you included is not the right one for the account.  If you use an affidavit, it must be notarized to be worth anything.

3. Print 3 copies of the Motion, Agreement and Affidavit and take them with you to court tomorrow.  Get all 3 stamped by the clerk.  One goes to the court, one to Midland's lawyer (per the certificate of service on the last page) and one you keep for your records.

4. As soon as your case is called before the court, let the judge know you have filed a Motion to Compel Private Contractual Arbitration and want the proceedings stayed until arbitration has been completed.

The attached file is all part of the same motion.  Staple all 4 pages together.  Be sure you fill in all of the fileds to match your name, plaintiff's name, court name, case number etc.  there are fields on each page!  You DO NOT date or sign the proposed order (page 3).

Good luck.

Motion to Compel Arbitration Template.odt

is this fine for the letter to send to the attorney?

 

To whom it may concern,

 In regards to the claims you have made against me in the Tennessee General Sessions Court, Case# XXXXXXXX, I demand arbitration with JAMS in accordance with the governing credit card agreement and request dismissal of this case.

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