robf270 Posted May 23, 2018 Report Share Posted May 23, 2018 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.) Lloyd & McDaniel, PLC 3. How much are you being sued for? $1169.36 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?) served 6. How were you served? (Mail, In person, Notice on door) in person 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? nothing 9. What state and county do you live in? Kentucky Hardin County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Feb 2016 11. When did you open the account (looking to establish what card agreement may be applicable)? June 2015 12. What is the SOL on the debt? To find out: believe 6yrs 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 looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) yes 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 with OC 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? need file a answer in 20 days. But only have 12 days left to file 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. Affidavit of Melissa Smelter from Midland, Affidavit of sale of account by the OC( Shannon Wiltgen), Certificate of Conformity under NYS CLS CPLR 2309(c) and NYS CLS RPL 299-a ( signed by a Ronan Blaschko an attorney in Minnesota), field data sheet, and one statement ( date is 9-2016) Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted May 30, 2018 Report Share Posted May 30, 2018 You are in luck because that Synchrony card agreement has a good arbitration clause that Midland hates. First thing is first, make sure you file your answer on time in the next 12 days. If this were me, I would deny all allegations in their complaint and then add a section titled "affirmative defense" wherein I state "Lack of subject matter jurisdiction. The underlying contract that is the basis of Plaintiff's allegations contains a private arbitration agreement and Defendant has elected to exercise the arbitration clause, therefore, this court lacks jurisdiction over this subject matter". After you answer is ready to file, I would work on a Motion to Compel Arbitration. Detail on the arbitration strategy and a sample MTC is found in the link in my signature below. If you don't have time to get the MTC ready in the next 12 days, then just file your answer and then file your MTC in a week or 2 after. But if you have time to complete your MTC and understand the arbitration strategy, then you can file both the answer and the MTC at the same time. You will need to mail copies of both to the Midland attorney when you file them. Quote Link to comment Share on other sites More sharing options...
robf270 Posted June 1, 2018 Author Report Share Posted June 1, 2018 Thanks for the information. This site has a lot of great information and people on it. The only thing I'm having a problem with is finding a credit card agreement for Synchrony Bank from 2015. Any information on finding it would be helpful. Quote Link to comment Share on other sites More sharing options...
robf270 Posted June 3, 2018 Author Report Share Posted June 3, 2018 Turned in my answer and MTC on Friday with my affidavit with a credit card agreement. Now it's up to the judge. Hope I did everything right. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted June 3, 2018 Report Share Posted June 3, 2018 10 hours ago, robf270 said: Turned in my answer and MTC on Friday with my affidavit with a credit card agreement. Now it's up to the judge. Hope I did everything right. We could have checked it over if you copied it here, but hopefully everything is fine. Let us know what happens or if they file an opposition to your MTC. Quote Link to comment Share on other sites More sharing options...
robf270 Posted June 3, 2018 Author Report Share Posted June 3, 2018 Yes I should of posted a copy of my answer and MTC. But I had a lot going on this weekend. With my daughter graduation and party. Wanted to get in and over with so I didn't have to worry about over the weekend. I really do appreciate all the help. Will keep everyone posted on my progress with this fight. Quote Link to comment Share on other sites More sharing options...
robf270 Posted June 23, 2018 Author Report Share Posted June 23, 2018 Just checking in to let you all know that I have to be in court on July 3 for my motion to compell arbitration. Just have one question. What should I bring with me to this hearing? Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 3, 2018 Author Report Share Posted July 3, 2018 Well that didn't go as planned. The judge gave them 7 days to write arguments to the MTC. Then I have 7 days or the 20th of July to answer. The attorney brought up that arbitration is not allowed if the case was in small claims. Going to need some help with this one. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 3, 2018 Report Share Posted July 3, 2018 On 7/3/2018 at 1:36 PM, robf270 said: The attorney brought up that arbitration is not allowed if the case was in small claims. Going to need some help with this one. @robf270 Does the Synchrony agreement you attached to your motion to compel include this language at #2? "RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. • What claims are subject to arbitration 1. 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 PayPal, Inc., if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide." 1 Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 4, 2018 Author Report Share Posted July 4, 2018 @Brotherskeeper Sorry for not answering in a timely matter. I work third shift. So after I posted my question I went to get some sleep. And yes that is what my agreement says. Word for word. Any help would be appreciated. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted July 4, 2018 Report Share Posted July 4, 2018 First, wait to see what their written opposition to arbitration says in it. Copy what they say to us and we can help you find the best counter arguments. This should not be too difficult because there is an overwhelming amount of case laws, including 2 supreme court rulings that go in your favor on wanting arbitration. If they include the small claims nonsense in their written opposition, then that is an easy one to counter if you simply read exactly what the arbitration clause says. "We will not REQUIRE you to arbitrate any claims in small claims". First, THEY are not the ones asking or requiring arbitration at all, YOU are. Second, there is no element of requirement, as you are voluntarily asking for the arbitration. Therefore, there is no preclusion to arbitration due to the case initially being in small claims court. 1 Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 4, 2018 Report Share Posted July 4, 2018 3 hours ago, fisthardcheese said: Second, there is no element of requirement, as you are voluntarily asking for the arbitration. Therefore, there is no preclusion to arbitration due to the case initially being in small claims court. Oops, Midland's attorney might have told the judge something that wasn't true. 19 hours ago, Brotherskeeper said: 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. @robf270 Funny, they reserve the right to "require" you to arbitrate a case they bring in court if your Answer to their Complaint alleges any "wrongdoing" on their part. Charitably, that Midland attorney needs to put on his reading glasses or take a refresher course in contract law. 1 Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 4, 2018 Author Report Share Posted July 4, 2018 @Brotherskeeper @fisthardcheese Thanks for the post and information. The judge did look at the attorney in a weird way when he said that. I will post what they send me. Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 16, 2018 Author Report Share Posted July 16, 2018 @Brotherskeeper @fisthardcheese Just wanted to check in. Called the court house and they just received papers from Midland's attorney. Waiting on my copy. Probably will get it tomorrow in the mail. So I will post what they send me. Should I ask for an extension? I'll probably only have a couple of days to answer. So I'm going to need your help. Thanks in advance. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 16, 2018 Report Share Posted July 16, 2018 @robf270 Post it as soon as you can. Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted July 17, 2018 Report Share Posted July 17, 2018 Is there a hearing scheduled on the 20th? If yes, then I would get their opposition paper and see what the filing date is on it and then file a motion for continuance and state that the Plaintiff has only just now filed their opposition, beyond the 7 days ordered by the judge (I would make sure to point this out specifically, not only the date they filed late, but the date your received the copy of it too). I would then ask that I be given my full 7 days to respond and continue the hearing scheduled for July 20, or in the alternative to strike their opposition as untimely. Or heck, for that matter, I would go with a Motion to Strike as the first action or in the alternative to continue to the hearing set for July 20th. It might be better to make the argument first that due to their failure to adhere to the judge's ruling of filing an opposition within 7 days that their late filing only days before the hearing should be stricken as untimely. And then add in, or in the alternative, the hearing should be continued to allow your full 7 days to respond. Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 17, 2018 Author Report Share Posted July 17, 2018 @fisthardcheese @Brotherskeeperno hearing on the 20th. That's when I have to have my answer to their opposition turned in. Still haven't received it. Will the clerk at the courthouse give me a copy?? Should I proceed to strike their opposition and ask for a continuance anyways or just strike their opposition? Thanks for all the help Quote Link to comment Share on other sites More sharing options...
fisthardcheese Posted July 18, 2018 Report Share Posted July 18, 2018 If the judge clearly gave them 7 days to file and they filed after that time, then I would file a motion to strike their response as untimely or in the alternative motion for more time to answer. I would ask for 7 days from the date you actually receive their motion. If you don't get it by the 20th, I might go up to the clerk's office on the 20th to file my motion and to ask for a copy of what the plaintiff filed. That's just what I would do. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 18, 2018 Report Share Posted July 18, 2018 Make sure to save the postmarked envelope when you receive their response. Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 18, 2018 Author Report Share Posted July 18, 2018 @fisthardcheese @Brotherskeeper Went down to the courthouse today and got a copy of their opposition. Plus I finally got it in the mail today. It was post marked on the 16th not the 13th like the Certificate of Service said it was. Can I used this in anyway??? Here is what they sent me. Thanks in advance for the help.. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 19, 2018 Report Share Posted July 19, 2018 On 5/23/2018 at 4:03 PM, robf270 said: 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) yes Please explain ^^^ Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 19, 2018 Author Report Share Posted July 19, 2018 @Brotherskeeper @fisthardcheese Back in Sept. 2017 I had to put a freeze on my credit report. Got a Fraud Alert from Experian about me trying to open a line of credit in Florida. So I sent letters to all 3 credit bureaus to dispute all accounts, addresses, work place history. The bad thing is. The computer I used to write letters crashed. The computer shop was able to get some of my files, but not the one with the letters to the credit bureaus. I sent dispute letters to the OC and the collection agency in March 2017 Then I also sent a dispute letter to the law firm when I got their notice in the mail back in Feb of this year. Hope this helps out Quote Link to comment Share on other sites More sharing options...
BV80 Posted July 19, 2018 Report Share Posted July 19, 2018 @robf270 If it's not too much trouble, could we please see a copy of the complaint? Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted July 19, 2018 Report Share Posted July 19, 2018 6 minutes ago, robf270 said: I sent dispute letters to the OC and the collection agency in March 2017 Then I also sent a dispute letter to the law firm when I got their notice in the mail back in Feb of this year. Hope this helps out Did you submit disputes with the OC and the collection agency before or after the account was sold to Midland? Do the accounts show as disputed on your credit reports? What notice did you receive from the law firm that you replied with a dispute? Notice of the filing of the summons and complaint? Quote Link to comment Share on other sites More sharing options...
robf270 Posted July 19, 2018 Author Report Share Posted July 19, 2018 @Brotherskeeper It was after it was sold to Midland. My credit report says "Account information disputed by consumer, meets FCRA requirements" that's TransUnion. Equifax has it as Consumer disputes this account information. The law firm sent the basic letter saying the account was put with the them to collect and I had 30 days to dispute. Quote Link to comment Share on other sites More sharing options...
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