Sued by midland and now msj

[Gregaz]

Sued by midland. Only income is SS. Read their bill of rights and sent them a SS statement & bank statement showing SS deposit. Said reply was not sufficient for hardship. No assets either. 

Sent anwser to lawsuit. 

Pretrial conference this week, cant attend plan on filing a motion to continue   

They filed for msj. 

original creditor in 1968 was a gas card and now Citibank then midland. 

They sent statements of last payment in 2014  and some redacted bill of sale from 2016

just read the arbitation clause.  

Should i file mtc arb? 

Debt is a little over $2000..

what do i do about discovery?

I really thought i would get hardship with age, medical issues and no house or car.  

 

 

 

 

 

 

 

 

[Gregaz]

Any mtc examples? 

 

[Goody_Ouchless]

That is surprising - perhaps try Midland again and speak to a manager? It will be annoying to live without a bank (or keep changing accounts), but since they can't garnish SS, they are wasting their time. 

The problem with arbitration, at this point, is that they may argue that you waived your right by engaging in litigation.

[Harry Seaward]

18 hours ago, Gregaz said:

original creditor in 1968 was a gas card

Holy moley! You win the prize for the oldest debt I've ever seen on the board. 

I'd go take another swing at the hardship angle. Maybe talk to the lawyer directly. If that doesn't work out, arbitration is the only real shot you'll have. They may try the "engaged in litigation" argument Goody talked about, but the bar for them to win that argument in AZ is set pretty high. People have answered lawsuits and responded to discovery requests, and our appellate courts have struck down the waiver argument. That doesn't mean your court can't make a mistake and side with Midland, but you should have a pretty easy time getting it reversed on appeal if that were to happen. 

[Goody_Ouchless]

It might also help to see the arb clause. Some have clear language that arb can be elected at any time. Harry is right about trying to talk to their lawyer - he's already looking at an uncollectible debt, and when you mention arbitration he'd be a fool to waste his time.

[Gregaz]

how ro get to talk to attorney is tricky. Same number as Letter.  

[Pericles]

28 minutes ago, Gregaz said:

how ro get to talk to attorney is tricky. Same number as Letter.  

Is there a law firm identified in the complaint (lawsuit)?  Is there an e-mail address in the complaint?

Or is it "midland internal legal" with a P.O. Box as the local address for the attorney?

[Gregaz]

41 minutes ago, Pericles said:

Is there a law firm identified in the complaint (lawsuit)?  Is there an e-mail address in the complaint?

Or is it "midland internal legal" with a P.O. Box as the local address for the attorney?

No law firm identified. 

Midland internal with a po box in tempe. 

[Gregaz]

Can anyone post a mtc link ?  

[Gregaz]

1 hour ago, Goody_Ouchless said:

It might also help to see the arb clause. Some have clear language that arb can be elected at any time. Harry is right about trying to talk to their lawyer - he's already looking at an uncollectible debt, and when you mention arbitration he'd be a fool to waste his time.

“At any time you or we may ask an appropriate court  to compel arbitration of claims, or stay the litigation of claims pending arbitration, even if claims are part of a lawsuit, unless a trial has begun or a final judgement has been entered. Even if a party fails to exercise these rights  at any particular time, or in connection with any particular claims, that party can still arbitration at a later time or in connection with any other claims.”

[Pericles]

1 hour ago, Gregaz said:

Midland internal with a po box in tempe. 

That means that the plaintiff's attorneys in your case are directly employed staff attorneys of Encore Capital Group’s operating subsidiary, Midland Credit Management, Inc.

Note that Midland Credit Management, Inc. is distinct from the entity that is suing you, Midland Funding LLC.

There probably is an e-mail address in the complaint, ending in "mcmcg.c0m"

And the phone number in the complaint (attributed to the attorney) is probably the same as Midland Credit Management, Inc.'s out-of-state collection call center (ending in 8750 or others).

And the P.O. Box address in tempe is an address for Midland Credit Management, Inc.

You'll likely have tremendous trouble making any direct contact with the actual attorney in your case, unless it is in court.  And the attorney will likely be different from appearance to appearance.

The attorney in your case won't respond to any e-mail sent to the mcmcg.c0m e-mail address or to any mail sent to the P.O. Box in tempe.

It is possible to communicate with MCM, but only with their collection people.  They won't forward a call to the actual attorney in your case.

MCM's internal division attorney will be likely be difficult to deal with until your motion to compel is granted.

[Pericles]

22 hours ago, Gregaz said:

They filed for msj.

Make sure you that you file a response to the msj, even if you file a mtc.  You might not have much time left to file a response to the msj.

How much time elapsed between your filing of an answer and their msj?

[Gregaz]

38 minutes ago, Pericles said:

Make sure you that you file a response to the msj, even if you file a mtc.  You might not have much time left to file a response to the msj.

How much time elapsed between your filing of an answer and their msj?

Just got the msj yesterday. 35 days from anwser & receiving msj.  Date filed on msj is last week. 

 

[Harry Seaward]

2 hours ago, Pericles said:

You'll likely have tremendous trouble making any direct contact with the actual attorney in your case

@Gregaz Given the fact that Midland is using in-house counsel, I think I'd scrap the attempts to contact the attorney directly, and go straight to arbitration.

 

2 hours ago, Gregaz said:

Can anyone post a mtc link ?

Things are slightly more complex in your case because an MSJ has already been filed, but even still, a MTC in AZ is stupid simple.  A single page is all you need.

"Midland has sued me on a credit card debt they claim was previously owned by Citibank.  Because Midland claims to have purchased the debt, they are now bound by the original agreement, attached hereto. The Citibank card agreement provides that either party may demand private contractual arbitration any time before trial.  I have made Midland aware that I want to use arbitration to settle their claims against me, and now move this court pursuant to Arizona Revised Statutes 12-1502 to 1.) order the parties into private contractual arbitration in accordance with the governing credit card agreement; and 2.) stay these proceedings, including any and all other pending motions currently before this court, while awaiting the outcome of said private contractual arbitration."

Attach to your motion a copy of the Citi agreement and an affidavit swearing under oath that the agreement is a true and correct copy of the agreement that was in effect during the life of the account.  You'll have to get the affidavit notarized to be effective.

Be sure you also send a letter to Midland's lawyer telling them you want to use arbitration to settle the claims they have made against you.

 

The biggest issue you're going to have is one of timing.  The court has 60 days to rule on your MTC.  In the past when Midland beats us to the punch on a MSJ, we have seen the courts grant the MSJ and either deny the MTC or just ignore it altogether.  It hasn't yet made it to appeal (that I'm aware of), but this seems like a pretty blatant violation of 12-1502, especially when Midland never expressly denies the existence of an agreement to arbitrate. 

[Gregaz]

7 hours ago, Goody_Ouchless said:

It might also help to see the arb clause. Some have clear language that arb can be elected at any time. Harry is right about trying to talk to their lawyer - he's already looking at an uncollectible debt, and when you mention arbitration he'd be a fool to waste his time.

Also this: 

who pays? Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file you pay, unless you get a fee waiver under the applicable rules of the arbitration firm. If you have paid the intial filing fee and prevail we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of arbitration  firm and applicable law.  However we will advance or reimburse your fees if the arbitrator or arbitration firm determines there is a good reason for requiring us to do so, or if you ask us and we determine there is good reason for doing so.  Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any and all expenses from another party if the arbitrator applying applicable law, so determines.” 

 

[Gregaz]

Confused to what i should be doung about discovery. Am i supposed to provide defenses again? 

[Harry Seaward]

You don't need to do anything about discovery, especially if you're going to be using arbitration.