keepingitsimple

CA Resident - Midland Credit Management - PRE LEGAL NOTIFCATION

75 posts in this topic

Just caught up on the thread - basic understanding is that Midland alleges they purchased a (relatively small) debt in 2017, so it is not past the SOL.

I'd start preparing to defend the suit. Find your onine case file and keep an eye on it for any updates regarding serving you with the complaint. They do need to serve you for the process to move forward. If they have a legit address for you it'll happen sooner or later, either personally or thru substitute service to someone at your home - don't stress when it does, it's just a part of the process. All it does is start the timelines.

You can look up the attorney that contacted you and see what they do (Google, Yelp, etc). Some consumer attorneys want to help people beat entities like Midland at no cost to the consumer - the law allows them to bill the plaintiff when you win. Others are more interested in offering debt relief/bankruptcy services, which come at a cost to you. CA laws are advantageous to consumers and CA members have an excellent record beating debt buyers like Midland without the help of an attorney.

You can fight via arbitration or straight-up. Do you know if arbitration is an option for you? If you don't have a copy of the original terms of the card, you can probably still find generic copies of the terms (for the year the acct was opened) online. I don't know much about arbitration, but there are some threads that cover it. Read this thread if you haven't yet: How I beat Midland in California - basic strategy for fighting via the non-arbitration route.

You can start working on a BOP if you like and have that ready once you are served. I wouldn't bother talking to them on the phone, those calls are only meant to help them. Midland called me once when they filed suit against me, I let them know phone calls were not welcome and that anything they needed communicate they could do in writing, and I would be doing the same.

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2 hours ago, keepingitsimple said:

Hi, so I just got a letter in the mail from a law firm telling me I'm being sued by midland and that they'd like to represent me.

Their firms name is Hyde & Swigart. 

I haven't been served though. How does this process work? Online, it shows Midland filed something on December 10th. I still haven't officially been served, or contacted by them.

Whats the best way to proceed, and can they legally go to trial, without serving me?

Depending on where you live, you may be able to check online, search your court docket for any lawsuits filed against you; there may be a small fee per search, but definitely a fee to print out online documents. or you can walk to your court and request from the clerk a copy of the lawsuit. 

regardless or whether or not you have been served you need to get a copy of those documents ASAP. 

 

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Hyde and Swigart is a CA consumer law firm... I have used them in the past. Did OK work and got me out of an LVNV lawsuit.

 

Based on what I read, you may have a Rosenthal violation in the phone call that was recorded. This could be a basis for a counterclaim, for which you could potentially receive up to $1,000 in damages.

 

Midland may then try to negotiate to make this all go away...

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On 1/3/2019 at 12:04 PM, RyanEX said:

Just caught up on the thread - basic understanding is that Midland alleges they purchased a (relatively small) debt in 2017, so it is not past the SOL.

I'd start preparing to defend the suit. Find your onine case file and keep an eye on it for any updates regarding serving you with the complaint. They do need to serve you for the process to move forward. If they have a legit address for you it'll happen sooner or later, either personally or thru substitute service to someone at your home - don't stress when it does, it's just a part of the process. All it does is start the timelines.

You can look up the attorney that contacted you and see what they do (Google, Yelp, etc). Some consumer attorneys want to help people beat entities like Midland at no cost to the consumer - the law allows them to bill the plaintiff when you win. Others are more interested in offering debt relief/bankruptcy services, which come at a cost to you. CA laws are advantageous to consumers and CA members have an excellent record beating debt buyers like Midland without the help of an attorney.

You can fight via arbitration or straight-up. Do you know if arbitration is an option for you? If you don't have a copy of the original terms of the card, you can probably still find generic copies of the terms (for the year the acct was opened) online. I don't know much about arbitration, but there are some threads that cover it. Read this thread if you haven't yet: How I beat Midland in California - basic strategy for fighting via the non-arbitration route.

You can start working on a BOP if you like and have that ready once you are served. I wouldn't bother talking to them on the phone, those calls are only meant to help them. Midland called me once when they filed suit against me, I let them know phone calls were not welcome and that anything they needed communicate they could do in writing, and I would be doing the same.

Hi @RyanEX

A process server just knocked on the door, but no one answered so they left. Should I allow them to serve me? What are their rules? Ive read that some places will eventually post something in a local newspaper or something of that nature. Is that allowed in Cali? What happens if they cant serve me?

I did look up the attorneys and its 5 of them, all just graduated from law school.

Here are the cards terms, scroll down to section 11 for Arbitration: https://www.citi.com/CRD/PDF/CMA/cardAgreement/CMA_CostcoConsADA-3.pdf <-- what's your take on this?

Ya, they haven't called me in a long time, and if they did, I would tell them the say, and record it.

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On 1/3/2019 at 1:20 PM, sadinca said:

Depending on where you live, you may be able to check online, search your court docket for any lawsuits filed against you; there may be a small fee per search, but definitely a fee to print out online documents. or you can walk to your court and request from the clerk a copy of the lawsuit. 

regardless or whether or not you have been served you need to get a copy of those documents ASAP. 

 

Hi @sadinca

I did see online and have the case number. I will go to the courthouse and get the documents possibly tomorrow morning.

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On 1/5/2019 at 8:28 PM, 1stStep said:

Hyde and Swigart is a CA consumer law firm... I have used them in the past. Did OK work and got me out of an LVNV lawsuit.

 

Based on what I read, you may have a Rosenthal violation in the phone call that was recorded. This could be a basis for a counterclaim, for which you could potentially receive up to $1,000 in damages.

 

Midland may then try to negotiate to make this all go away...

hi @1stStep

Do you think I should reach out to Hyde and Swigart and see what they say?

I still haven't been served and someone tried stopping by around 7:30 tonight to serve, but no one opened the door. Should I let them serve me, or avoid at all costs? Do you know if there is a timeframe of when they cant serve?

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For everyone coming here, here are the arbitration terms of my card:

ARBITRATION

Explains that you cannot go to court, have a jury trial or initiate or participate in a class action if you have a dispute with us. Instead, this provision tells you that the dispute must be resolved by a professional arbitrator, not a judge or jury. This section also explains how arbitration works and some of the differences between resolving a dispute in arbitration and resolving one in court.

For its detailed terms, please go to this link, section 11: https://www.citi.com/CRD/PDF/CMA/cardAgreement/CMA_CostcoConsADA-3.pdf

Please let me know your thoughts and what I should do.

 

 

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Accept the service. Do NOT contact the attorneys. They are not there to help you and, in fact, they will intentionally pressure, confuse or outright deceive you.

Type a proper answer to the lawsuit and file it within the deadline (usually 20-30 days after being served).

Type up an MTC if you want to use arbitration and file that either with or very soon after you file the answer.

Mail a copy of everything you file in court (answer and MTC) to the attorney listed on the complaint you are served.

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1 hour ago, fisthardcheese said:
 

Accept the service. Do NOT contact the attorneys. They are not there to help you and, in fact, they will intentionally pressure, confuse or outright deceive you.

Type a proper answer to the lawsuit and file it within the deadline (usually 20-30 days after being served).

Type up an MTC if you want to use arbitration and file that either with or very soon after you file the answer.

Mail a copy of everything you file in court (answer and MTC) to the attorney listed on the complaint you are served.

Hi @fisthardcheese

I sent a response in our PM thread. Please take a look when you get a moment. Thank you again for the time and help!

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What do you make of this rule:

(b) No debt collector shall collect or attempt to collect a consumer debt, other than one reduced to judgment, by means of judicial proceedings in a county other than the county in which the debtor has incurred the consumer debt or the county in which the debtor resides at the time such proceedings are instituted, or resided at the time the debt was incurred.

does this mean midland can’t take someone to court outside of the county where the debt occurred? So if I incurred my debt in a different state, then moved, does that mean they can’t legally take me to court in the state I currently reside in?

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2 hours ago, keepingitsimple said:

What do you make of this rule:

(b) No debt collector shall collect or attempt to collect a consumer debt, other than one reduced to judgment, by means of judicial proceedings in a county other than the county in which the debtor has incurred the consumer debt or the county in which the debtor resides at the time such proceedings are instituted, or resided at the time the debt was incurred.

does this mean midland can’t take someone to court outside of the county where the debt occurred? So if I incurred my debt in a different state, then moved, does that mean they can’t legally take me to court in the state I currently reside in?

They can sue you in the county where you currently live.

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Hi all, @RyanEX @BV80 @fisthardcheese @Anon Amos @millyann @sadinca

I was finally served. I'm filing my answer Monday. Could you please take a look and let me know what you think?

I'm requesting to move this to arbitration. This isn't my MTC, just my answer to their allegations. However, I have a question.

I believe Midland violated the Rosenthal act and I've included a countersuit for damages. If I'm asking the court to move this to arbitration, can I still ask for 1000 in damages, or would that void arbitration and keep this before a judge? I'm willing to remove the violation to ensure this gets moved to arbitration, so I just want to make sure I'm not shooting myself in the foot by including this violation and asking for damages.

Is there anything else I should add or remove from this response?

Also, if you look at the other image I've included, the paper for ADR was included with the packet that I was served. Do I also have to fill this out and return with my answer and/or MTC Arbitration?

answer-1.png

alternative dispute resolution.png

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If you were just served, I'd recommend you take more time to put your answer together. You have 30 days. I'm not familiar with the arbitration route. The one thing I remember being discussed about arbitration is that JAMS is better for us than AAA - sorry  I don't remember the reason why. You do want to make sure you take the proper steps, whatever direction you want to take. The Pros/Cons of arbitration vs. trial vary from state to state, as some states are more/less consumer friendly than others when it comes to the rules of evidence for trial. California has favorable laws for consumers in these cases (being sued by a junk debt buyer).

What is the Rosenthal violation you believe they committed?

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4 minutes ago, RyanEX said:

If you were just served, I'd recommend you take more time to put your answer together. You have 30 days. I'm not familiar with the arbitration route. The one thing I remember being discussed about arbitration is that JAMS is better for us than AAA - sorry  I don't remember the reason why. You do want to make sure you take the proper steps, whatever direction you want to take. The Pros/Cons of arbitration vs. trial vary from state to state, as some states are more/less consumer friendly than others when it comes to the rules of evidence for trial. California has favorable laws for consumers in these cases (being sued by a junk debt buyer).

What is the Rosenthal violation you believe they committed?

I believe they violated this because when I called them and asked them if they would send me a DV, they said they will not do so, because they had apparently sent me one a year prior. The guy said he does not have to send one.

i believe in California the courts are more favorable towards consumers and arbitration. Also, arbitration will cost the JDB much more than trial which makes them more inclined to settle and dismiss.

citibank specifically says it’s AAA

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I agree that I would take up as much of your 30 days to respond as you can.  There is no point in rushing this through.  Take your time and be slow and deliberate in everything you do in court.

Ignore the ADR.  That is very different than arbitration. 

If you file a counterclaim, it is likely that the court could say you are waiving your right to arbitration.  Counterclaims should be brought up in your arbitration claims after the MTC is granted, UNLESS you have a very strong counterclaim that an attorney would be willing to take on, in which case, you may be able to work out a contingency deal with an attorney and that is better than arbitration since you will not have to do any of the work on the case.

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1 hour ago, fisthardcheese said:

I agree that I would take up as much of your 30 days to respond as you can.  There is no point in rushing this through.  Take your time and be slow and deliberate in everything you do in court.

Ignore the ADR.  That is very different than arbitration. 

If you file a counterclaim, it is likely that the court could say you are waiving your right to arbitration.  Counterclaims should be brought up in your arbitration claims after the MTC is granted, UNLESS you have a very strong counterclaim that an attorney would be willing to take on, in which case, you may be able to work out a contingency deal with an attorney and that is better than arbitration since you will not have to do any of the work on the case.

Hi @fisthardcheese Ok, I'll slow it down and take my time. Is there an advantage in making them wait a little longer? 

I'll ignore the ADR as mentioned. I'll also remove the counterclaim. I don't know how strong the claim is, so maybe I would bring it up during arbitration, if its is approved.  EDIT: What if I removed the counterclaim, but mentioned I believe they have a violation? If I'm not asking for damages, might that still get in the way of arbitration?

Do I need to add anything else to my response? If all I'm doing is denying allegations and mentioning arbitration, I'm not sure what else I could put on there. 

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19 hours ago, keepingitsimple said:

Is there an advantage in making them wait a little longer? 

The advantage is that you are less likely to make a mistake and you have more time to continue reading as much as you can to learn more about this and to gather more information.

19 hours ago, keepingitsimple said:

What if I removed the counterclaim, but mentioned I believe they have a violation? If I'm not asking for damages, might that still get in the way of arbitration?

You either use the court OR you use arbitration.  You can not do both or you will shoot yourself in the foot.  Damages are irrelevant. If you ask the court to adjudicate any counter claim, then you are availing yourself to the court and the court will deny your request for arbitration based on the fact you willingly accepted the court's jurisdiction to hear your case.

 

19 hours ago, keepingitsimple said:

If all I'm doing is denying allegations and mentioning arbitration, I'm not sure what else I could put on there. 

Since that is all your doing, why would you need anything else?  The opposite as above applies.  If you are using arbitration, you are stating that the court has NO authority over this case, so there is nothing the court needs to decide on OTHER than "is there a valid arbitration agreement between the parties".  When they determine that there is, then that remove the case from the court's hands and they must order the case to arbitration.

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5 hours ago, fisthardcheese said:

The advantage is that you are less likely to make a mistake and you have more time to continue reading as much as you can to learn more about this and to gather more information.

You either use the court OR you use arbitration.  You can not do both or you will shoot yourself in the foot.  Damages are irrelevant. If you ask the court to adjudicate any counter claim, then you are availing yourself to the court and the court will deny your request for arbitration based on the fact you willingly accepted the court's jurisdiction to hear your case.

 

Since that is all your doing, why would you need anything else?  The opposite as above applies.  If you are using arbitration, you are stating that the court has NO authority over this case, so there is nothing the court needs to decide on OTHER than "is there a valid arbitration agreement between the parties".  When they determine that there is, then that remove the case from the court's hands and they must order the case to arbitration.

Hi @fisthardcheese

Ok, thank you for all that info and breaking it down. Makes a lot more sense. 

I'm going to take some time and revise my response, and will post an updated one in the next few days. 

I'm going to remove the violation and stick specifically to objecting the allegations and requesting arbitration, while providing specifics from the card terms regarding arbitration.

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15 hours ago, keepingitsimple said:

Hi @fisthardcheese

Ok, thank you for all that info and breaking it down. Makes a lot more sense. 

I'm going to take some time and revise my response, and will post an updated one in the next few days. 

I'm going to remove the violation and stick specifically to objecting the allegations and requesting arbitration, while providing specifics from the card terms regarding arbitration.

The answer only needs to deny everything they listed in their complaint and then list an affirmative defense of Lack of Subject matter jurisdiction due to a valid arbitration clause.

The rest of the details including what the card agreement states about arbitration should be saved for your motion to compel arbitration.

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9 hours ago, fisthardcheese said:

The answer only needs to deny everything they listed in their complaint and then list an affirmative defense of Lack of Subject matter jurisdiction due to a valid arbitration clause.

The rest of the details including what the card agreement states about arbitration should be saved for your motion to compel arbitration.

Ok, I'll make sure to remove what I listed for arbitration details, and copy it over for the MTC. 

Do I need to individually list each complaint and object to it, or is it sufficient enough to keep it as "objecting to all allegations and complaints made by Plaintiff"?

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On 1/15/2019 at 2:04 PM, sadinca said:

a simple General Denial form should suffice to answer the complaint, if the complaint is not verified. 

https://www.courts.ca.gov/documents/pld050.pdf

 

hi @sadinca and @fisthardcheese

so should I file that general denial form along with my response?

I haven't really changed the response I wrote by much, just removed the counterclaim. (see attached)

Does this suffice for my response? I really don't know what else I should add, especially if I file this with the general denial form.

 

 

Screen Shot 2019-01-17 at 12.14.22 PM.png

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Use this form.   https://www.courts.ca.gov/documents/pld050.pdf

Check the General Denial box. Print 3 copies and sign.

File a day or 2 before the due date. Take the copies to court and have them stamped. Court will keep 1 copy. You send 1 copy to attorney with someone else signing certificate of service.

 

 

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