Sued by Midland Funding, MTC arb filed, hearing Thursday, Have a few Questions!

[rcat17]

Hello all,

My wife is being sued by Midland, and we filed her MTC Arb with the court 2 days after being served. I had most of the info saved and ready to go from being sued 2 years ago so it didn't take too long. We actually got served a second time the day we filed the MTC for Midland, but that one has already been dismissed. We did send everything to Midlands attorney via CMRRR, and surprisingly we haven't received the receipt back. I know they received it because of the tracking numbers, but no receipt. As I mentioned, we were served a second time by Portfolio Recovery, we filed an MTC Arb with the court 2 days later, and we've received the receipt from them, and a letter requesting dismissal already. The hearing for Portfolio wasn't until later this month, so that leads me to believe that with only 4 days until our hearing with Midland, they're probably going to show up and argue the MTC.

So my question is, what arguing points should my wife bring up, or points to make to try and convince the judge to grant the MTC? What can she expect the attorney's to say? We've never had to go to court before, this is the third MTC we've filed and the other 2 were dismissed before the hearing. 

A little info that may help:

Location: Michigan

JDB: Midland Funding, LLC

Attorney: About an hour away from the court

Debt: $4461

I'm fully aware that I will be unable to speak for my wife as I was not on the card. I'm the one who's done all the research and put together all of the paperwork up to this point. I have most of the info, but again, we've never been in front of a judge so I have no experience on what to say to convince them to grant the MTC.

Any help is greatly appreciated. Thank You!

[Brotherskeeper]

@rcat17 This thread and her previous thread have some useful info. Midland's MTC arb oppo response is in the bottom link:

 

[rcat17]

5 hours ago, Brotherskeeper said:

@rcat17 This thread and her previous thread have some useful info. Midland's MTC arb oppo response is in the bottom link:

 

Thanks a ton! I'm going to look it over and see what I can find.

[rcat17]

My wife has court in the morning, and I was pretty confident up until a few hours ago. I was rummaging around on some of these threads and I came across a thread by a user who had 2 Motions denied because the attorneys said they were suing "the account stated".  If this is brought up tomorrow, how can my wife defend against it so the motion doesn't get denied?

[Goody_Ouchless]

Also who was the Original Creditor? Arguments against arbitration depend on the contract.

 

[rcat17]

Thank you for your reply. The OC was Synchrony, which made me panic even more considering the user who's 2 motions were denied were also Synchrony.

[Goody_Ouchless]

Synchrony has best arbitration clause. I can't recall that specific case, but each time this comes up the judge is making the incorrect ruling that the "final balance" in an Account Stated claim is somehow separate and distinct from the underlying contract (CC Agreement) that governed the creation of the debt, in the first place.

We did see one case where, and maybe that was the MI one, where the plaintiff argued that the defendant answered in such a way as to admit there was no dispute, hence, there was nothing subject of arbitration.

It seems that a general denial of everything (except you name and address) and a basic MTC should be enough - even if it has to go to appeal. When this stuff happens (denial of valid MTC) it is most likely a case of a judge angry that someone is using a "loophole" to skate on a valid debt. He may believe that all he wants, but the law and contract say otherwise.

 

 

[BV80]

3 hours ago, rcat17 said:

My wife has court in the morning, and I was pretty confident up until a few hours ago. I was rummaging around on some of these threads and I came across a thread by a user who had 2 Motions denied because the attorneys said they were suing "the account stated".  If this is brought up tomorrow, how can my wife defend against it so the motion doesn't get denied?

 

Whether a matter is subject to arbitration is determined by applying the following three-part test:

    1) is there an arbitration agreement in a contract between the parties; 2) is the disputed issue on its face or arguably within the contract's arbitration clause; and 3) is the dispute expressly exempted from arbitration by the terms of the contract. [In re Nestorovski Estate, 283 Mich App 177, 202; 769 NW2d 720 (2009).]

They may try to claim that an "account stated" is not based upon the contract.  Look at number 1 of the three-part test.  Are they going to admit that there is no contract between the parties?  

They may try to claim that your wife never disputed the balance.  Does the agreement state that ANY dispute is subject to arbitration?  Well, she can dispute the balance now.   Where in the agreement does it say that an account stated cause of action renders the arbitration provision unenforceable?

The parties' agreement determines the scope of arbitration. Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146, 163; 742 NW2d 409 (2007).

Where is the plaintiff's proof that an account stated cause of action renders invalidates the credit card agreement and renders the arbitration provision unenforceable? 

[rcat17]

Thank you guys so much for all the help. I will update in the morning after the hearing.

[BV80]

22 minutes ago, rcat17 said:

Thank you guys so much for all the help. I will update in the morning after the hearing.

In addition, the arbitration provision does NOT provide a time limit for a dispute.  In fact, it may state that the provision survives the closing of the account. 

It doesn’t say that if you’re sued in court, it’s too late to dispute and enforce the provision.   

[rcat17]

Just wanted to give everyone an update on what happened at the hearing yesterday morning. My wife and I arrived at the courthouse, the attorney for Midland was standing in line waiting on the clerk, we went into the courtroom and waited. As we were waiting the attorney looked over at my wife and asked her name, then asked if they could go out into the hallway to talk. My wife was a little hesitant so the attorney told her they didn't have to if she didn't want to, and my wife shook her head no.  When the judge called them up the attorney started speaking and let the judge know that my wife filed and MTC and they did not file an opposition and to grant the MTC and they would like to Dismiss without prejudice. My wife just had to state her name for the judge and that was pretty much it. They didn't say anything about the case being dismissed pending arbitration, but I'm going to have my wife call up to the court today just to make sure.

On the Dismissal paper there are 3 sections. The 1st says "NOTICE OF DISMISSAL BY PLAINTIFF" with some checkboxes and letters below. The 2nd says "STIPULATION TO DISMISS", and the 3rd is checked and says "ORDER TO DISMISS" followed by "without" checked, and "Conditions if any Defendants Motion To Grant ARBITRATION IS GRANTED".

So again, just to be safe I'm going to have her call the court to make sure we don't have to follow through with the arbitration process and make sure it's dismissed. I'd hate to think that it's over with and then Midland tries to argue that she never filed a claim or something of that sort.

 

Thank you all for your help, you guys are awesome.