swanlake

Midland Funding suing me in FL

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Good Morning, My husband was served in person for a suit against me.  I am trying this morning to see if I can find a local attorney to perhaps file all this for me.  

However I have been reading this site and this is my details.  Any recommendations for what I should expect to pay an attorney to do this?  I have found a Credit card agreement from Paypal which my card was branded.  It does include an arbitration agreement.  I have 20 days to file my reply. I was served on the 2nd. So I have 7 days down and of course the weekend is here. So I have to handle this in some way next week.   

Thank you for any advise.   

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.) its not a firm but a bunch of lawyers

3. How much are you being sued for?  5070.69

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?)  They served my husband. I was not home.

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? none

9. What state and county do you live in?  Polk County, FL

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)?  2014

12. What is the SOL on the debt? To find out:  4 years

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  Not sure

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

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').  No

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?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

They provided a copy of a credit card statement from Synchrony Bank 

a statement / bill of sale (with redacted part) of them buying the debt. 

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Wow... just wow.  I was just reading the whole complaint incase I wind of answering the summons myself and I am still shaking my head to complaint

Items 8-10. They are a plea to how wonderful Midland is and nobody loves them or understands how good they are... poor us. 

8 . Plaintiff MIDLAND FUNDING LLC owns portfolios of consumer receivables, which it attempts to collect. When working with individual consumers, Plaintiff MIDLAND FUNDING LLC and its affiliates (collectively, “Midland”) generally attempted to contact consumers like Defendant through several means, all in an effort to establish contact and to resolve the underlying obligation. In doing so, Midland attempts to assess each consumer’s willingness to pay, through phone calls, letters or other means. Midland attempts to exclude consumers from its collection efforts, where Midland believes those consumers are facing extenuating circumstances or hardships that would prevent them from making any payments.

9. When Midland contacts consumers, it strives to treat consumers with respect, compassion and integrity. Midland works with consumers in an effort to find mutually-beneficial solutions, often offering discounts, hardship plans, and payment options. Midland’s efforts are aimed at working with consumers to repay their obligations and to attain financial recovery. Midland strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumers’ lives.

10. Despite Midland’s efforts to teach consumers and resolve the consumer’s obligations, only a percentage of consumers choose to engage with Midland.Those who do are often offered discounts or payment plans that are intended to suit their needs. Midland would prefer to work with consumers to establish voluntary payment arrangements resulting in the resolution of any underlying obligations. However, the majority of Midland’s consumers ignore calls or letters, and some simply refuse to repay their obligations despite an apparent ability to do so. When this happens, Midland must decide then whether to pursue collection through legal channels, including litigation like the present action against Defendant. Although the Account is now in litigation, Plaintiff remains willing to explore a mutually-beneficial solution through voluntary payment arrangements, if possible.

 

 

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Midland will win the lawsuit, whether you have a lawyer or not.  (Of course a lawyer will probably tell you he can win because he wants your money.) Since synchrony is the OC, I'd suggest taking a stab at arbitration to make them dismiss the case.  It may or may not work, but it's your only real shot at not having a judgment against you. Otherwise, you can try to settle. 

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Isn't FL a state where the slightest action on the part of the defendant is construed as waiving the right to arbitrate?

Yes, that Midland verbiage looks new in a complaint. I suspect they have run into judges that don't like being used as glorified debt collectors, so they use that flowery verbiage to cover the stench. Frankly, if I was a judge, it would make me angry. They say that no one responds to their calls and letters, and in the next breath talk about how suing is like a rare, last resort. Which is it?

 

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8 hours ago, Goody_Ouchless said:
Isn't FL a state where the slightest action on the part of the defendant is construed as waiving the right to arbitrate?

That's my understanding.  Any filing other than a motion to compel can be construed as waiver in FL.  An answer in FL is likely a fatal mistake if arbitration is desired.

8 hours ago, Goody_Ouchless said:
.. that Midland verbiage looks new in a complaint.

Midland has used that flowery self-complimentary language in some complaints for at least five years, at least is select jurisdictions.  A search for some snippets of the language turns up results here on this forum (and on the other forum) dating back to 2012.  Also this sample complaint.

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It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration. Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992).


In this regard, this Court, as well as the other district courts, has held that "propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration." Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009), 15 So.3d at 688; Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) ("[T]he active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived."

"[E]ven when a motion to compel arbitration and a counterclaim are filed at the same time, without some other indicia of waiver such as participating in discovery, a waiver is not proper." Price v. Fax Recovery Sys., Inc., 49 So.3d 835, 837 (Fla. 4th DCA 2010).

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So if I am unlikely to win, and I had a lawyer suggest I declare bankruptcy, which I do not want to do.

What would be my best option for negotiating with them.  If arbitration doesn't scare them off, and it costs them more money, I am likely to get a worst payment agreement.

Any advice on how to proceed if I want to try and talk to them into a payment arrangement? 

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On 2/9/2018 at 10:10 AM, Harry Seaward said:

Midland will win the lawsuit, whether you have a lawyer or not. 

Not necessarily in Florida and @LawKitty would disagree with you.  FL is one of the few states that has a very specific requirement that must be met before a suit will be successful and the OC and JDB often skip it hoping the consumer doesn't know.

FL requires that the consumer be notified 30 days in advance of their account being sold.  Did that happen?  It also must be 30 days prior to filing suit.

The OP needs a consult with a good Consumer Attorney such as @LawKitty as statistics show that 70% of the time or more when a lawyer gets involved for the consumer the JDB folds.  They are after the low hanging fruit not having a protracted fight for their pennies.

From a collection/judgment standpoint FL is also consumer friendly allowing a Head of Household to exempt out of garnishment and levy for judgments if they meet the income requirements which is not difficult.  They are also required to notify the consumer BEFORE garnishment so that the exemption can be applied for.  

 

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Who is the attorney on the lawsuit?  If it's an inhouse attorney that is good.  Lately the JDBs are farming out their lawsuits to collection law firms and some of them can be a real bear. 

Also the statutory notice that used to be a condition precedent has now had an appellate court rule it is NOT a condition precedent anymore so it's no longer a valid defense.  Generally we can still attack standing, of course, and also the requirements of an action for Account Stated, which in Florida generally requires that they be able to show the entire accounting, including payments and purchases, from the account inception until present day.  A lot of these JDBs can't do that because they only get 6 months to maybe a year of statements from the original creditor. 

Also, some of these collection law firms are getting wise to the arbitration method and arguing that account stated does not require a written agreement so trying to bring in a cardmember agreement with arbitration provisions can sometimes be stricken because the cause of action is based on the account stated of mailing statements and agreeing to a balance to be paid, etc.  So just be mindful of that.

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32 minutes ago, LawKitty said:

arbitration provisions can sometimes be stricken because the cause of action is based on the account stated

Are you saying Account stated lawsuit in FL negates an underlying written agreement?

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47 minutes ago, LawKitty said:

Also the statutory notice that used to be a condition precedent has now had an appellate court rule it is NOT a condition precedent anymore so it's no longer a valid defense. 

That stinks but good to know.

 

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I responded with the attorney list to LawKitty in a pm.  They all have a mcmcg.com email address, which resolves to Midland Credit Management website.  So it looks like its a bunch of inhouse lawyers. 

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2 hours ago, LawKitty said:

Also, some of these collection law firms are getting wise to the arbitration method and arguing that account stated does not require a written agreement so trying to bring in a cardmember agreement with arbitration provisions can sometimes be stricken because the cause of action is based on the account stated of mailing statements and agreeing to a balance to be paid, etc.  So just be mindful of that.

I don’t understand their argument.  The balance to be paid is still dependent upon the terms in the agreement (interest-rate, fees, etc.).  

 Also, arbitration provisions usually state that any dispute is subject to arbitration. A dispute regarding the balance should still be subject to arbitration. 

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4 hours ago, Clydesmom said:

statistics show that 70% of the time or more when a lawyer gets involved for the consumer the JDB folds

That has to be an ancient stat. In the majority of recent cases, about all that's missing is video highlights of the debtor using the card. A good lawyer is going to lose against better facts.

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I'm just stating that I've seen collection lawyers get past an arbitration demand with that argument and I've seen judges go along with it. I didn't say it was right.  Debtors don't usually appeal those decisions though. As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.

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1 hour ago, Goody_Ouchless said:

That has to be an ancient stat. In the majority of recent cases, about all that's missing is video highlights of the debtor using the card. A good lawyer is going to lose against better facts.

I wouldn't say ancient.  I would say that now it is more dependent on where you are.  In GA hiring a lawyer almost guarantees they fold.   Perhaps it is also who is hired and what court it is in.  I have seen several threads on sites that once a lawyer got involved in the past year the Plaintiff dismissed.  

1 hour ago, LawKitty said:

As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.

What would a good counter argument to this tactic be?

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1 hour ago, Goody_Ouchless said:

... about all that's missing is video highlights of the debtor using the card.

That's probably coming in the relatively near future.  Home Depot, Target and other stores are saving video recordings of all POS transactions at self-checkout terminals.  Wayne and Gilbarco now have video recording as a standard feature on all new self-serve fuel dispensing equipment.  Once this equipment becomes entirely ubiquitous, card issuers will probably require a copy of the video record if the merchant wants to avoid charge backs.

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7 minutes ago, Clydesmom said:

What would a good counter argument to this tactic be?

This came up in a recent thread - somewhere in the midwest, as I recall. I believe the argument is that there is a complete lack of legal basis for an account to magically divorce itself from the contract that created that account. The argument of the debt buyer was that each bill is a self-contained IOU with no connection to any previous agreement.

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3 minutes ago, Xerxes said:

Home Depot, Target and other stores are saving video recordings of all POS transactions at self-checkout terminals.

Literally every time I check out at Home Depot, I look at that video on the card terminal, relive my old debt collection woes, and am thankful that I was sued at the tail end of  the "bad documentation/frequent violation" era.

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59 minutes ago, Clydesmom said:

In GA hiring a lawyer almost guarantees they fold.

Why? What does a lawyer bring to the table in GA that doesn't seem to happen virtually anywhere else in the country?

"Resistance" isn't a good enough explanation. Pro ses give plenty of resistance. Often more than any lawyer.

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17 minutes ago, Harry Seaward said:

Why? What does a lawyer bring to the table in GA that doesn't seem to happen virtually anywhere else in the country?

In some of the counties the Magistrates are extremely over the lawsuit mills clogging their courts and having no documentation.  There are several good consumer law firms that look forward to being hired to take on these mill attorneys and when they file their notice of appearance for their client the JDB and firm fold because they don't want other consumers knowing they can be fought.  They want that easy default judgment.  

It isn't EVERYWHERE this statistic holds.  There are very creditor friendly courts in Texas that hiring a lawyer is a waste of money because the Judge is going to rubber stamp it for the Plaintiff unless you can show you paid or it is identity theft.  

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Unless firms like Midland have a blanket policy of providing no evidence in certain states, I can't see how it makes a difference. Are we (again? still?) forgetting that Midland sues people over debts that Midland owns and the defendant owes? Defending one of these cases is nothing more than trying pull a fast one on the "man."

I mean, seriously, can anyone show me a case where a defendant pointed out an actual mistake to Midland, and Midland replied "so what - we hate you. It's personal, not business."

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9 hours ago, LawKitty said:

I'm just stating that I've seen collection lawyers get past an arbitration demand with that argument and I've seen judges go along with it. I didn't say it was right.  Debtors don't usually appeal those decisions though. As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.

Oh, I know you don't believe it's right.  It's just that I'm a bit surprised that the argument would succeed at all.   But, after thinking about it, I understand that it could succeed if a judge doesn't understand the connection between balances and credit card agreements and/or if the defendant doesn't explain it and also doesn't point out the language in the agreement that shows that ANY dispute must be resolved by arbitration.

Perhaps, in the future, a defendant who loses due to that argument will appeal and the appeals court will resolve the issue.

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17 hours ago, LawKitty said:

I'm just stating that I've seen collection lawyers get past an arbitration demand with that argument and I've seen judges go along with it. I didn't say it was right.  Debtors don't usually appeal those decisions though. As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.

It is good to know that attorneys are using this defense to arbitration.  It means that perhaps when pro-se defendants respond to an opposition to the MTC they should spell out that regardless of the "account stated", if Plaintiff asserts that they have purchased said account, then they are a party to the contract of that said account and can not step outside of that contract when it no longer suits them.

15 hours ago, Harry Seaward said:

Why? What does a lawyer bring to the table in GA that doesn't seem to happen virtually anywhere else in the country?

"Resistance" isn't a good enough explanation. Pro ses give plenty of resistance. Often more than any lawyer.

Because the creditor attorneys in GA still work like lawsuit-mills which are mostly automated.  They show up in court with a stack of 75 - 100 cases at a time and expect that 85 of them are simple defaults and the other 15 will be consent judgements with payment agreements after they scare the consumer into it.  They are not willing to do any more work than this, because they aren't paid enough to spend any more time than this.  When a consumer attorney gets involved, they are now dealing with (in their minds) someone who "knows what they are doing" and will at minimum tie them up for several months with proper procedure and discovery and they just don't want to mess with that.  Also, I believe that they fear the consumer attorneys know how to easily spot the legal violations as they occur with the creditor law firms corner cutting automated procedures (which almost no pro-se knows to look for or that it is even a violation).  For those reasons, they still just like to avoid the entire thing and cut the loss of that one case out of 100 when someone hires an attorney.

14 hours ago, Goody_Ouchless said:

Unless firms like Midland have a blanket policy of providing no evidence in certain states, I can't see how it makes a difference. Are we (again? still?) forgetting that Midland sues people over debts that Midland owns and the defendant owes? Defending one of these cases is nothing more than trying pull a fast one on the "man."

I mean, seriously, can anyone show me a case where a defendant pointed out an actual mistake to Midland, and Midland replied "so what - we hate you. It's personal, not business."

I don't think anyone who has been on this board for any length of time thinks like this.  However, I DO very much believe that the automated process makes mistakes that Midland can't or won't correct to be a very real issue and where most of the violations come from.  I think that some individual employees of Midland (call center) act in a way that makes it personal for the consumer and comes extremely close to the edge of violations if not crosses it sometimes.

It is the automated process that Midland uses which caused 2 of the violations I filed lawsuits on in the past.  Midland did not correct the problem and allowed the computer systems to continue repeating errors (such as pulling credit reports every 60 days when they no longer had legal permission to do so).  So I very much disagree that we should just pass on fighting back and attempting to call midland on their violations in court.  I say the same thing for forcing them to produce the proper chain of custody and accounting of any account they sue on.  Yes, they likely legally own the account, but that does not mean there aren't multiple errors in their documentation.  You have the right to force someone to prove their case against you in court or arbitration, so why not make them if that is all you have left?

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