matahari

Do I have to pay the JDB filing fees? MIDLAND ARBITRATION

14 posts in this topic

Hello, 

First off, I would like to thank you all on here from the bottom of my heart. I have learned so much from this forum and it helped me get through the fear and shock that is getting sued by a JDB. I have learned so much.

Here is my info -

1. Who is the named plaintiff in the suit?

Midland Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

No firm, it's a single attorney handling this (can provide name if necessary) 

3. How much are you being sued for?

$1340.83 plus interest, court costs, attorney fees (works out to about~$2300 per the attorney)

4. Who is the original creditor? (if not the Plaintiff)

Citibank (Best Buy) 

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?

I think so

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Some letters, many phone calls

9. What state and county do you live in?

Southeast Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

10/2014

11. When did you open the account (looking to establish what card agreement may be applicable)?

7/2014

12. What is the SOL on the debt? To find out:

6 years I believe for Michigan

13. What is the status of your case? Suit served? Motions filed? 

I submitted my answer to the Summons and Complaint (with the help of this forum!!) essentially denying all their complaints, listed arbitration as my first affirmative defense and filed a motion to compel arbitration and to stay proceedings pending arbitration

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes - collection agency; I don't think I did it for the OC

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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

Not an official DV letter, but I did do a dispute with the credit bureaus (which in hindsight was probably a huge mistake because I'm thinking it is the reason why I got sued) 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Two account statements, three pages of account contract, Midland affidavit, one page of bill of sale of a "pool of accounts" from Citibank to Atlantic Credit and Finance along with affidavit, Certificate of conformity, Bill of sale for "purchased accounts" from atlantic Credit and Finance to Midland Funding, Page of supposed purchased accounts essentially blank but what looks like is supposed to be a ledger with the first line blacked out, Affidavit of transfer of accounts, certificate of conformity and the record of the last payment I made

___________________________________________________________________________________________________________ 

I can provide my answer to the summons and complaint and my motion to compel arbitration if you guys want.

So I went to court yesterday for the motion hearing, of course had to get through Midland's lawyer trying to get me to settle and lying about how expensive arbitration is. He tried to tell me the cost would be split between us. I said nothing cause I knew it was a lie. He was a very good talker and I'm glad I did so much research on this forum cause I knew I would have folded if I didn't know better. When we got in front of the judge, the judge was very skeptical also saying it was expensive and took a long time. He asked me again if I was sure I wanted to do arbitration, I said yes. 

From what I understand, he didn't necessarily grant the motion YET, he told me I have to file first and come back in 2 weeks? 

I was reading the arbitration clause and it says I have a choice between JAMS and AAA. It also says:

"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."

.....Maybe I'm over thinking this but I would interpret that to mean I have to pay for Midland's filing fees too since I'm the one filing for arbitration? 

Here is the language of the Arbitration clause in the Best buy card agreement:

1439695691_ScreenShot2018-12-06at5_02_00PM.png.edba52bfe09db682f19b57d569439ae3.png

643651615_ScreenShot2018-12-06at5_03_18PM.thumb.png.0c66da3921a1dc3eaa608775c0356ed0.png

 

So what do you guys think? Also, should I choose JAMS or AAA? Should I send in the filing fee with the consumer demand form or wait for them to ask for payment? 

Thank you again guys, you don't know how grateful I am for you all taking time out of your lives to help people like me!!

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@matahari

You do not pay the JDB filing fees.  Just go to the arbitration websites and read the consumer rules.  It’s the business that pays the costs.  Your cost is limited to a filing fee of somewhere around $250.00.

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I filed with JAMS, and never sent any filing fees. I recommend that you just file and don't send any fees. They will ask for payment if necessary. It seems like the agreement says that they will pay fees if you ask. I would request that they pay filing fees when you send them notice.

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@matahari Congratulations on getting this far! Do you know if you may be eligible for court fee waiver due to indigency? https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc20.pdf

If you haven't read this pinned thread on arbitration, please do so. (Even if you have read it, reread it.) @fisthardcheese may have a different opinion, but since AAA will likely reject a claim with Midland as a respondant without a court order, and you don't have a court order yet, perhaps filing with JAMS would be smoother for you. 

"When filing arbitration, I very strongly recommend filing some claim against the JDB.  Remember that when you ask for arbitration and file it, you have now flipped the roles.  YOU are the "Claimant" and THEY are the "respondent".  This is essentially like you are now "suing" the JDB, only in arbitration instead of court.  Think of it just like that.  You would not file a lawsuit against yourself, so do not do it in arbitration.  I would never mention THEIR claims against me, nor the debt in any way.  Instead, I only file MY claims against the JDB.  Do not worry at this stage about the details of your claims because this initial claim is allowed to be changed, added to or dropped at any time before an arbitrator is assigned to the case (and even after, you can still make changes with the arbitrator's permission).  If you have nothing very strong with proof against the JDB, I would file with something such as "violations of state and federal consumer debt collection laws"  or perhaps, "Violation of the Fair Debt Collection Practices Act", etc.  Or even a simple "Billing dispute" will do if you have no violations of law against them. Again, it doesn't need to be more detailed then that at this stage and if your claims never pan out, you have the ability to drop them later (or you may find NEW claims to add if the JDB violates the laws during the ongoing case).

When sending in the Demand for Arbitration, I never send money initially.  If you are required to pay the $200/$250 consumer filing fee (or any portion of it), then the arbitration firm will tell you to submit that in order to continue.  They will never reject your filing, but will send you a case number and request for payment to move forward.  Having the case number is key evidence that you filed the case (which may be needed for Court later). If the Card Agreement states that "they" will pay for your filing fee, I will include a cover letter with my Demand form stating that per the Agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS.

Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time.  I send both CMRRR and retain the green cards.  Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail.  If there is ever a question about service after I file, I will have the green card to submit as proof if needed.

Remember, that this is now YOUR case against the JDB.  It will be up to the JDB to file a COUNTER CLAIM in arbitration for the alleged debt. . ."

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UPDATE:

I filed with JAMS- sent out the paperwork yesterday and sent copy of JAMS paperwork to JDB attorney certified mail. Did not send filing fee.

@Brotherskeeper I don't think I will qualify for the court waiver fee unfortunately :/ would be a stretch for sure. I did read fist's arbitration guide, but it kind of tripped me up cause AAA says on their website that the filing fee is due at time of filing or else you have to file a whole new case.

The initial motion for arbitration hearing was adjourned until next Wednesday (12/19) for me to file for arbitration, so now just awaiting the hearing and will update this forum accordingly!

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17 minutes ago, matahari said:

The initial motion for arbitration hearing was adjourned until next Wednesday (12/19) for me to file for arbitration, so now just awaiting the hearing and will update this forum accordingly!

I'm sure Midland will argue that, by not paying the fee, you didn't follow the rules and your MTC should be denied. They've done it this way several times. Because the court stayed the case specifically for you to file arbitration, I think Midland has a valid argument and I would pay the fee.

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1 hour ago, matahari said:

I filed with JAMS- sent out the paperwork yesterday and sent copy of JAMS paperwork to JDB attorney certified mail. Did not send filing fee.

@matahari As per the terms of the Citi arbitration clause "Who pays?" section you posted, did you include a request that Midland advance (or reimburse) your filing fee in the materials you sent the attorney? Under the contract's terms, if Citi or its assignor is asked to do so by you, and "we determine there is good reason for doing so," they may pay your fee. If this becomes an issue in court, you might be able to persuade the judge that you're following the contract's terms if you've asked for an advance on the fee. However, you do remove the possibility of losing this argument by paying the JAMS consumer filing fee before the hearing, as @Harry Seaward advises. 

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So I actually met with the court clerk today and she basically told me that once they receive confirmation from JAMS that they have received my case (i.e case number and such), that the case will most likely be dismissed without prejudice. I asked if it could be stayed pending arbitration and she said usually it's dismissed since arbitration is binding...?

She told me to call her number once I receive JAMS confirmation and I will most likely not have to show up in court on Wednesday since it will probably be dismissed without prejudice. She didn't ask for proof of filing fees. 

I did receive an email from JAMS today asking for $250 filing fees - 

"I am in receipt of your demand for arbitration concerning the above referenced matter.  In order to proceed, I need to receive the $250 filing fee on your behalf.  This is the only fee that you will be required to pay, all other fees will be covered by Midland Funding."

@Brotherskeeper I did not put fee reimbursement in my motion as I was unaware I had this option. Given the circumstances, I'm unsure how to go about asking for fee reimbursement at this stage in the game since I already filed my motion and will likely not get another hearing according to the clerk. 

Would it be reasonable to ask JAMS to pay my fee after Midland pays theirs? (which we know won't happen - $1500 for them 😂)

I guess worst case scenario if I have to pay $250 to get out of this situation I'd be ok with it. 

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I wouldn't rely on what the court clerks tell you.  If this were me, I'd be sending in the $250, or at the very least sending Midland's lawyers a certified letter asking that they pay your portion, per the agreement.

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13 hours ago, matahari said:

@Brotherskeeper I did not put fee reimbursement in my motion as I was unaware I had this option. Given the circumstances, I'm unsure how to go about asking for fee reimbursement at this stage in the game since I already filed my motion and will likely not get another hearing according to the clerk

I did not say that you should've included a request (as a "Wherefore" prayer for relief) in the actual court motion to compel for Midland to advance your JAMS filing fee. The contract language I quoted in the above post I interpret to mean that you would make the request directly to Midland via its attorney in the cover letter that accompanied the motion and JAMS demand claim. Also, I raised this issue of asking plaintiff to advance the fee, rather than you paying it, because your contract allows for that; this contract "advance or reimburse" clause could support your position if plaintiff or the judge were to claim you did not file your JAMS claim as ordered by the court. 

13 hours ago, matahari said:

Would it be reasonable to ask JAMS to pay my fee after Midland pays theirs? (which we know won't happen - $1500 for them 😂)

You are the claimant; Midland is the respondant. (I am not a lawyer.) IMO there is an audience of one that you need to satisfy: your judge. Harry has given you some excellent advice.  

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On 12/14/2018 at 10:34 AM, Brotherskeeper said:

Under the contract's terms, if Citi or its assignor is asked to do so by you, and "we determine there is good reason for doing so," they may pay your fee.

@matahari Reread the "Who pays?" section again. Do you have a "good reason" (i.e. hardship rather than indigency) that you can state to Midland? (You said you didn't think you'd qualify for an indigency waiver in court, which would likely satisfy JAMS fee waiver as well, without Midland's prior approval.) Only you are in the position of predicting how your judge will view your failure to pay the filing fee prior to the next court date, and whether it's worth the risk.

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3 hours ago, matahari said:
 

Ok makes sense, I will just pay the $250 then. Perhaps I can negotiate Midland paying my $250 back if they try to settle. 

That is exactly what you do.  Pay the $250 now because JAMS has already asked you for it.  You must comply or you will be in violation of the court's order that you asked for.  Don't do that. 
 

Show up at your next court hearing prepared to argue that the court should continue the stay because, while you have complied with everything by filing the case and paying the filing feed, Midland has yet to properly respond to JAMS (pay their fee - but I wouldn't say pay the fee I would just say "properly respond"), so the arbitration case is not yet officially under way.

The entire goal from this point on is to use the court and the fact that you have a granted MTC as a pressure point to leverage a settlement wherein Midland will release you of all liability of the alleged debt and also pay you a sum of $250.

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