brownpm85

Letter from South Carolina Law firm representing Midland Credit Management. Looking for advice.

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So a couple of months ago I received a pre legal notification from Midland credit management. I sent a debt verification letter to them. They sent me back a few statements and that is it. I have now received a letter from a law firm in Columbia South Carolina threatening to sue if I do not pay the entire amount which is just over $1,000. They have also given me an opportunity to send a debt verification letter to them. Should I send a debt verification letter to them as well? As I understand it Midland credit management is pretty quick to fold if I use the arbitration clause. I do have an arbitration clause in the original contract. If I didn't want to go through all the paperwork would settling be a good idea? Or should I just wait to be served and then do a motion to compel arbitration? Any help you guys could give me would be greatly appreciated!

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Should you send a DV letter to them?

Absolutely.  

This accomplished four things:

First, if they don't have anything, they will back off.  This is much less common than the old days, but it sometimes happens.

Second, it gives you time to plan your next steps.  

Third, sometimes if you elect arbitration in the DV letter, they will back off.  Again, this is less common than the old days, but it sometimes happens.  

Fourth, if they sue or threaten to sue after you elect arbitration, you may have a violation against them, which gets them to fold faster.  Sometimes when they reply to your DV letter, they mention what they will do if you don't initiate arbitration.  That may be a violation, and it at least can tip your hand.  I once got one of the OCs which are famous for going to the bitter end to settle for a mutual walkaway after their attorney threatened to sue if I didn't file in arbitration first.

 

 

As far as the arbitration goes -- check to see if there is small claims exemption.  If so, you need to file before they sue.  

 

Of course, there is the question -- what is more valuable to you, your time, or the money you can save by not settling.  If you decide that the trouble of filing arbitration, plus the POSSIBLE $250 fee, is too much for you to deal with, by all means settle.  If they insists on the full $1000, or they only agree to some amount you are not willing to pay, then DON'T settle.  I got an OC to settle for 25% once.  (That was FNBO).  That would be just north of $250.  If you could get that kind of settlement, what is the point of arbitration?

You need to decide your own price point -- what you are willing to pay to avoid dealing with this mess.  

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46 minutes ago, BackFromTheDebt said:

Fourth, if they sue or threaten to sue after you elect arbitration, you may have a violation against them, which gets them to fold faster. 

There is absolutely no case law to support the above.   There is nothing that supports that the mere election of arbitration can halt a lawsuit.

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6 hours ago, brownpm85 said:

Or should I just wait to be served and then do a motion to compel arbitration?

Yes. Since it's a Synchrony card it has an awesome (debtor-friendly) arbitration agreement that will make them go away. I suppose sending a letter indicating your intention to arbitrate might scare them away - they'd be stupid to waste time on money on a non-collectible debt, like this.

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15 minutes ago, Goody_Ouchless said:

Yes. Since it's a Synchrony card it has an awesome (debtor-friendly) arbitration agreement that will make them go away. I suppose sending a letter indicating your intention to arbitrate might scare them away - they'd be stupid to waste time on money on a non-collectible debt, like this.

Thanks. When I do the DV letter I just need 1 sentence like "I dispute, please validate." Correct?

If I add in something about arbitration in the DV letter how should I word that? Would something like "I am invoking my right to arbitration through JAMS (or AAA) per the original cardholders agreement". Could I attach a copy of the arbitration agreement with the letter? 

Thanks again guys for the quick responses. 

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6 hours ago, BV80 said:

There is absolutely no case law to support the above.   There is nothing that supports that the mere election of arbitration can halt a lawsuit.

Is there case law that says it can't, that election doesn't matter?  And is it in the proper district? This is a serious question. 

 

We are not talking about winning an FDCPA case here.  We are talking about scaring off a JDB from arbitration.  

In my final JAMS case, I managed to scare off one of the OC s that are famous for never giving in partly because of a threat of lawsuit after I had elected arbitration.  OK, that was years ago, and maybe this OC isn't as easily scared off now.  

However, what we are looking for is something that will scare off Midland.  

What is the more likely scenario with Midland?

1.  They will fight to the bitter end in order to get an arbitrator to say election of arbitration isn't an FDCPA violation.

2  They will slink away.  

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1 hour ago, brownpm85 said:

Thanks. When I do the DV letter I just need 1 sentence like "I dispute, please validate." Correct?

If I add in something about arbitration in the DV letter how should I word that? Would something like "I am invoking my right to arbitration through JAMS (or AAA) per the original cardholders agreement". Could I attach a copy of the arbitration agreement with the letter? 

Thanks again guys for the quick responses. 

No need to enclose the agreement.  KISS (Keep it Simple, Stupid!).  

In the old days we used to send really long, convoluted DV letters, until we realized those were no better than the really short ones. All you need is a few sentences.  Say you are demanding debt validation, and say you elect arbitration, and possibly mention JAMS.  

Just the mention of arbitration (esp. with JAMS) might scare them away.  

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49 minutes ago, BackFromTheDebt said:

Is there case law that says it can't, that election doesn't matter? 

There doesn't have to be because election is nothing more than a threat. It's the same as threatening to sue but not ever filing a lawsuit.

Bentrud v. Bowman, Heintz, Boscia, & Vician, LLC (7th Circuit Court of Appeals, 2015)

"Given the plain terms of that provision, Bentrud argues that it was unfair for Bowman Heintz to file its second motion for summary judgment after he had elected arbitration. So unfair, in fact, that by doing so it offended § 1692f of the FDCPA. We disagree.

The FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. But that is what Bentrud is attempting to do here; he seeks to transform the FDCPA into an enforcement mechanism for the arbitration provision in his credit card agreement."

Since you claim it's a violation, do you have case law that supports your claim?

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On 4/2/2018 at 6:12 PM, BV80 said:

There doesn't have to be because election is nothing more than a threat. It's the same as threatening to sue but not ever filing a lawsuit.

Bentrud v. Bowman, Heintz, Boscia, & Vician, LLC (7th Circuit Court of Appeals, 2015)

"Given the plain terms of that provision, Bentrud argues that it was unfair for Bowman Heintz to file its second motion for summary judgment after he had elected arbitration. So unfair, in fact, that by doing so it offended § 1692f of the FDCPA. We disagree.

The FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. But that is what Bentrud is attempting to do here; he seeks to transform the FDCPA into an enforcement mechanism for the arbitration provision in his credit card agreement."

Since you claim it's a violation, do you have case law that supports your claim?

You can avoid this issue by actually FILING the case in JAMS.

If this were me, I would respond to this letter with my DV that says "I dispute this alleged debt in it's entirety. Please see the attached demand for JAMS Arbitration".  I would then include the JAMS Demand form and required paperwork.  I would send JAMS the filing papers at the same time.

If these attorneys are smart, they would end it at that.  If they file suit after arbitration is already started, then it IS a violation of FDCPA.

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On 4/2/2018 at 2:51 PM, BackFromTheDebt said:

We are not talking about winning an FDCPA case here.  We are talking about scaring off a JDB from arbitration.  

AGAIN, those threats worked a decade ago.  They don't now.  JDBs are fighting back aggressively against these frivolous claims.  A LOT has changed while you have been gone you need to catch up.

Your giving advice based on what worked in the past not what is working NOW.  The maximum fine for an FDCPA violation is only $1k and if the debt is more than that they may not care.  Second  you have former posters who set really bad precedent winning razor thin FDCPA claims in Federal court with no monetary award.  The reality is Someone MIGHT get the maximum but JDBs are now fighting back knowing not only may they not get nothing but the JDB could be awarded their legal fees and costs for having to fight a frivolous claim.  

On 4/2/2018 at 2:51 PM, BackFromTheDebt said:

What is the more likely scenario with Midland?

The COST of JAMS is what turns off JDBs.  What gets them to back down is a signed MTC by the court.  Once they are pinned into a corner by the court they either have t comply or drop it there are no other options for them.  

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6 minutes ago, Clydesmom said:

AGAIN, those threats worked a decade ago.  They don't now.  JDBs are fighting back aggressively against these frivolous claims.  A LOT has changed while you have been gone you need to catch up.

Your giving advice based on what worked in the past not what is working NOW.  The maximum fine for an FDCPA violation is only $1k and if the debt is more than that they may not care.  Second  you have former posters who set really bad precedent winning razor thin FDCPA claims in Federal court with no monetary award.  The reality is Someone MIGHT get the maximum but JDBs are now fighting back knowing not only may they not get nothing but the JDB could be awarded their legal fees and costs for having to fight a frivolous claim.  

The COST of JAMS is what turns off JDBs.  What gets them to back down is a signed MTC by the court.  Once they are pinned into a corner by the court they either have t comply or drop it there are no other options for them.  

Of course the cost of JAMS is what scared off JDBs.

A possible FDCPA claim is icing on the cake.  In SOME cases, it can help.  I don't know of any cases where it would hurt.

I don't think a JDB will say --"hey, we were going to walk away from this, but they have an FDCPA claim, so let's spend tens of thousands of dollars fighting this in JAMS because the FDCPA case offends me"

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Hey guys thanks for all the great advice. I am preparing my letter today I have attached what I have so far. So I should go ahead and file with JAMS now before I am served? 

4 hours ago, fisthardcheese said:

You can avoid this issue by actually FILING the case in JAMS.

If this were me, I would respond to this letter with my DV that says "I dispute this alleged debt in it's entirety. Please see the attached demand for JAMS Arbitration".  I would then include the JAMS Demand form and required paperwork.  I would send JAMS the filing papers at the same time.

If these attorneys are smart, they would end it at that.  If they file suit after arbitration is already started, then it IS a violation of FDCPA.

 

 

20180409_114409.jpg

Edited by brownpm85
Edited to remove my specific information

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3 hours ago, fisthardcheese said:

You can avoid this issue by actually FILING the case in JAMS.

If this were me, I would respond to this letter with my DV that says "I dispute this alleged debt in it's entirety. Please see the attached demand for JAMS Arbitration".  I would then include the JAMS Demand form and required paperwork.  I would send JAMS the filing papers at the same time.

If these attorneys are smart, they would end it at that.  If they file suit after arbitration is already started, then it IS a violation of FDCPA.

I might do things a little differently.

IF you are having trouble getting your JAMS filing together, I would still suggest sending the DV, and using the time to prepare the filing in JAMS.  Not everyone is as experienced as fisthardcheese, and for some it takes a while to get everything ready.  

Once the DV is sent, sometimes they respond in a few days, sometimes a few weeks, sometimes never.  In one case, I got the response more than a year later.  I've even had some law firms walk away after a DV with arbitration election, but those were generally firms that didn't want to deal with me, and the response of over a year was due to chaos in the law firm.  

 

In other words, get your JAMS filing ready, so you can put it in the mail either (a) with your DV, (b) a few days after you send the DV, or (c) as soon as you hear back from the law firm.  

@fisthardcheese method of filing with the DV (a) is a little safer, and certainly the best option IF you have the JAMS filing ready. (b) and (c) are if you need the time OR are trying to delay for some reason.    I used (c) once when I was very close to the SOL, hoping the law firm wouldn't get back to me right away.  They did, so I filed in JAMS.  

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1 hour ago, brownpm85 said:

Hey guys thanks for all the great advice. I am preparing my letter today I have attached what I have so far. So I should go ahead and file with JAMS now before I am served? 

 

 

NOT a good idea to put your personal information out here, unless that is a pseudonym.  You should use a pseudonym instead.  Some of the law firms read this forum.  

 

I would suggest editing the post. 

This also affects your strategy.  You should probably file in JAMS ASAP, because you may have already tipped your hand.  

Edited by BackFromTheDebt
privacy of another poster

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23 minutes ago, BackFromTheDebt said:

NOT a good idea to put your personal information out here, unless that is a pseudonym.  You should use a pseudonym instead.  Some of the law firms read this forum.  

 

I would suggest editing the post. 

This also affects your strategy.  You should probably file in JAMS ASAP, because you may have already tipped your hand.  

Thanks! I edited my previous post. When I go to jams website I just just click the "submit a claim" link correct? When I file in jams do I just send the paperwork to jams and send a copy to the law firm? What about the $250 filing fee? Do I have pay that up front or does jams bill me only if the arbitration goes through? Sorry did all the questions, just trying to get my ducks in a row. 

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7 minutes ago, brownpm85 said:

Thanks! I edited my previous post. When I go to jams website I just just click the "submit a claim" link correct? When I file in jams do I just send the paperwork to jams and send a copy to the law firm? What about the $250 filing fee? Do I have pay that up front or does jams bill me only if the arbitration goes through? Sorry did all the questions, just trying to get my ducks in a row. 

Ha.  I noticed I quoted your unedited post, so I edited out your personal info.  

 

About half of my JAMS arbitrations I never payed the $250 fee.    I waited until the other side joined the case.  

Sometimes the arbitration was settled before the fees were paid.  Sometimes the case was closed for non-payment.  In those situations, I never paid.  

When the other side joined the case, I did pay.  

Some of the other arbitration experts may chime in as well.  

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8 minutes ago, BackFromTheDebt said:

Ha.  I noticed I quoted your unedited post, so I edited out your personal info.  

 

About half of my JAMS arbitrations I never payed the $250 fee.    I waited until the other side joined the case.  

Sometimes the arbitration was settled before the fees were paid.  Sometimes the case was closed for non-payment.  In those situations, I never paid.  

When the other side joined the case, I did pay.  

Some of the other arbitration experts may chime in as well.  

How do I know if they have backed off? Will they send anything stating that they don't want to participate in arbitration and won't bring suit or will I just never get served? 

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5 hours ago, fisthardcheese said:

You can avoid this issue by actually FILING the case in JAMS.

If this were me, I would respond to this letter with my DV that says "I dispute this alleged debt in it's entirety. Please see the attached demand for JAMS Arbitration".  I would then include the JAMS Demand form and required paperwork.  I would send JAMS the filing papers at the same time.

If these attorneys are smart, they would end it at that.  If they file suit after arbitration is already started, then it IS a violation of FDCPA.

What if the other party does not respond to JAMS?   Does JAMS close the arbitration?

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9 minutes ago, BV80 said:

What if the other party does not respond to JAMS?   Does JAMS close the arbitration?

Yes, JAMS will close the Arbitration, but you will have a solid paper trail showing that you clearly chose JAMS as the venue per the card agreement, therefore, any lawsuit filed thereafter would be intentionally filed in the wrong venue and an FDCPA violation.  An MTC would still be required, and JAMS will reopen your case with the court granted MTC.

 

1 hour ago, BackFromTheDebt said:

@fisthardcheese method of filing with the DV (a) is a little safer, and certainly the best option IF you have the JAMS filing ready. (b) and (c) are if you need the time OR are trying to delay for some reason.    I used (c) once when I was very close to the SOL, hoping the law firm wouldn't get back to me right away.  They did, so I filed in JAMS. 

I am only advocating a pre-emptive JAMS filing in THIS case because it appears that a lawsuit is imminent. (They generally follow these types of lawyer letters).  It is not necessary, as it is possible you have to deal with court anyway if they ignore JAMS.

1 hour ago, brownpm85 said:

Thanks! I edited my previous post. When I go to jams website I just just click the "submit a claim" link correct? When I file in jams do I just send the paperwork to jams and send a copy to the law firm? What about the $250 filing fee? Do I have pay that up front or does jams bill me only if the arbitration goes through? Sorry did all the questions, just trying to get my ducks in a row.

If this were me, I would either FILE in jams or I don't mention it at all.  I would not state in my DV that I "elect" JAMS.  You can really be shooting yourself in the foot as I almost did once, where after my DV, the JDB made some major FDCPA violations which I got an attorney involved on, but my own solid case against them was almost derailed because I stated in a letter to them that I wanted arbitration.  Unless I am FILING or I am in court with an MTC, I never speak of arbitration to a JDB before hand because I don't want to take any potential future action out of my own hands before it even gets there.

Follow the link in my signature for all information on filing in JAMS.  You do not file online, you must mail in the Demand Form and copies of the Card Agreement.  Before filing you need to read your card agreement and understand the arbitration clause and also understand at least the basics of how arbitration works.  You have a Synchrony Card Agreement in play here and are asking about sending $250.  If you read that card agreement you will see that it would be throwing away $250 to send in what the other side says they will pay for you. 

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18 minutes ago, fisthardcheese said:

Yes, JAMS will close the Arbitration, but you will have a solid paper trail showing that you clearly chose JAMS as the venue per the card agreement, therefore, any lawsuit filed thereafter would be intentionally filed in the wrong venue and an FDCPA violation.  An MTC would still be required, and JAMS will reopen your case with the court granted MTC.

 

I am only advocating a pre-emptive JAMS filing in THIS case because it appears that a lawsuit is imminent. (They generally follow these types of lawyer letters).  It is not necessary, as it is possible you have to deal with court anyway if they ignore JAMS.

If this were me, I would either FILE in jams or I don't mention it at all.  I would not state in my DV that I "elect" JAMS.  You can really be shooting yourself in the foot as I almost did once, where after my DV, the JDB made some major FDCPA violations which I got an attorney involved on, but my own solid case against them was almost derailed because I stated in a letter to them that I wanted arbitration.  Unless I am FILING or I am in court with an MTC, I never speak of arbitration to a JDB before hand because I don't want to take any potential future action out of my own hands before it even gets there.

Follow the link in my signature for all information on filing in JAMS.  You do not file online, you must mail in the Demand Form and copies of the Card Agreement.  Before filing you need to read your card agreement and understand the arbitration clause and also understand at least the basics of how arbitration works.  You have a Synchrony Card Agreement in play here and are asking about sending $250.  If you read that card agreement you will see that it would be throwing away $250 to send in what the other side says they will pay for you. 

Thanks again for the help. I just got the JAMS demand forms. If this were you would you just send the DV and file with JAMS without mentioning arbitration in the DV? Once I file file with JAMS the attorney for Midland with get a notice of my filing correct. If I'm understanding correctly, they can still file a lawsuit but filing with JAMS makes makes the MTC process easier? Thanks again for your help I'm just trying to get a good grip on the process so I do things correctly. 

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@fisthardcheese is right.

When you file, send a letter to their attorney demanding they pay the $250 as per the agreement.  

I once had a case where the other side neither paid my $250, which was in the agreement, nor did they pay their own fees.  So the case was closed in arbitration, meaning I never paid a penny.  

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1 hour ago, fisthardcheese said:

Yes, JAMS will close the Arbitration, but you will have a solid paper trail showing that you clearly chose JAMS as the venue per the card agreement, therefore, any lawsuit filed thereafter would be intentionally filed in the wrong venue and an FDCPA violation.  An MTC would still be required, and JAMS will reopen your case with the court granted MTC.

 

What is required to commence arbitration?  Will JAMS "commence" arbitration simply based upon your demand?

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25 minutes ago, BV80 said:
 

What is required to commence arbitration?  Will JAMS "commence" arbitration simply based upon your demand?

JAMS will assign a case number and a case manager upon your demand.  They will then bill the JDB for the $1200 filing fee. Once the filing fee is paid, JAMS sends a "commencement letter" to move forward.  Although the "commencement letter" comes only after the filing fee is paid, because a case is opened with a case number upon receipt of the Demand, for purpose of proper venue, I would believe this firmly determines that per the contract, the consumer has properly proceeded with dispute resolution in JAMS and anything outside of this is an action not legally allowed and/or deceptive.  I would add that the JDB/attorney would have been notified by CMRRR of this JAMS filing when you serve a copy to them as well as copies of JAMS sending the initial letter requesting the filing fee.

 

1 hour ago, brownpm85 said:

Thanks again for the help. I just got the JAMS demand forms. If this were you would you just send the DV and file with JAMS without mentioning arbitration in the DV? Once I file file with JAMS the attorney for Midland with get a notice of my filing correct. If I'm understanding correctly, they can still file a lawsuit but filing with JAMS makes makes the MTC process easier? Thanks again for your help I'm just trying to get a good grip on the process so I do things correctly. 

You have 30 days from the day you received their collection letter.  If you still have plenty of time, I would send the JAMS Demand WITH my DV letter.  If you need to get the DV letter off right away to make the 30 day deadline, then I would send it with no mention of arbitration and then determine if you want to file now or wait to see if they sue. They will be notified of your filing because YOU will be sending a copy of the Demand and Card Agreement per the filing instructions listed at the top of the demand form.

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