Midland in IL

[PaigeAnn_IL]

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.) None, Kevin Mortell (Encore Employee)

3. How much are you being sued for? 9.1K

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? DV Letter, they ignored it.

9. What state and county do you live in? Illinois, Macon

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 07/17

11. When did you open the account (looking to establish what card agreement may be applicable)? 02/09

12. What is the SOL on the debt? To find out: 5 Years

13. What is the status of your case?  Served

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? Yes, they did not provide.

16. How long do you have to respond to the suit? 1/11 is first appearance, claim is for account stated

17. What evidence did they send with the summons? Rule 280.2 Affidavit, last couple of statements

18.  How did you find out about this site? Random internet browsing.

Basically, I have read a lot of the information here and other places.  The agreement allows for arbitration.  Though, given the amount I believe they may be more inclined to follow me (I could be wrong).  In court challenging assignment might be my best course; though they may bring the needed people and documentation to trial.  I guess, does anyone have any experience in arbitration that proceeds to hearing/appeal, should they follow.....will the arbitrator be as hard on them to establish assignment as a court MAY be.  Thanks for any input you may have.

[Harry Seaward]

2 hours ago, PaigeAnn_IL said:

Though, given the amount I believe they may be more inclined to follow me (I could be wrong).

They haven't yet.

2 hours ago, PaigeAnn_IL said:

In court challenging assignment might be my best course; though they may bring the needed people and documentation to trial. 

I would definitely count on them bringing the goods. It's very(!) rare they make a mistake like that anymore. 

2 hours ago, PaigeAnn_IL said:

I guess, does anyone have any experience in arbitration that proceeds to hearing/appeal, should they follow

No. Because they never follow. 

[Goody_Ouchless]

3 hours ago, PaigeAnn_IL said:

In court challenging assignment might be my best course; though they may bring the needed people and documentation to trial.

It will never get that far. With broad adoption of adoptive business records doctrines, they don't need to bring "people" or have a trial. They already have everything they need to be granted Summary Judgement. Just arbitrate this into oblivion.

 

[BV80]

@PaigeAnn_IL

Synchrony has a great arbitration provision. In what year did you default?

[PaigeAnn_IL]

Default was in 2017.  Thanks Harry and Goody, it appears arbitration is indeed the best path forward.

[Goody_Ouchless]

Yea - I was really scared back when we were going through this. It just seemed like there had to be a "catch." This year so many people have won with zero arb participation by debt buyers. (Well, there was one case but it was a business loan and the plaintiff didn't seem to know what they were getting in to. That was different because the question of who had to pay was different than consumer debt, as I recall.)

[PaigeAnn_IL]

Great; seems as though the same issues with assignment can be raised in arbitration anyway.

Three quick questions. 

First, the agreement indicates that to elect arbitration you must send notice to "Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission,  KS 66201-5320, ATTN: ARBITRATION DEMAND." I assume I will elect arbitration by notifying plaintiffs counsel of the same and through case motions; but should I copy this address or is that not needed at this point?  

Second, the agreement states:  "The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267."  Is the current belief that AAA is the choice to make given the limit on consumer costs? 

Lastly, the agreement states: "If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding."  To me this would indicate it is their responsibility to commence the proceeding using my choice of arbitrator.  However, it would seem a better tactic to just initiate the proceeding myself; or am I wrong?

Thanks for all your help.

[Goody_Ouchless]

I'll take the last one. That clause about what they must do is why we refer to Synchrony cards as "Golden Tickets." They are essentially uncollectible. I believe AAA has a policy of not accepting any debt collection arbitration cases brought by lenders, so they are stuck. If the court grants your MTC, you select AAA and AAA will refuse to take the case that the plaintiff must commence.

(Please correct me if my facts/logic are wrong, but I believe that is what AAA's recent letter of refusal ultimately means.)

[nobk4me]

First:  do not send anything to the Synchrony address.  The OC is out of the picture at this point.  The JDB has stepped into the OC's shoes.

Second:  It is generally thought that JAMS is the better choice for the consumer. as their overall fees (all but $250 to be paid by the JDB) are higher.  Making debt collection very expensive in arb is the name of the game here.

Third:  the agreement language does indicate that the party filing the lawsuit should initiate.  But you may face a judge who wants you to initiate.  It wouldn't hurt to do that, plus by initiating you get to choose the arb forum.  "To me this would indicate it is their responsibility to commence the proceeding using my choice of arbitrator."  Actually, if they initiate, it would be with their choice of arbitrator.

[Goody_Ouchless]

12 minutes ago, nobk4me said:

"To me this would indicate it is their responsibility to commence the proceeding using my choice of arbitrator."  Actually, if they initiate, it would be with their choice of arbitrator.

Which one could say is all moot, since they won't participate. AAA is becoming more attractive due to (1) the fact that they won't take any case brought by lender and (2) their language about fees/costs isn't as ambiguous as JAMS.

 

[Harry Seaward]

2 hours ago, Goody_Ouchless said:

If the court grants your MTC, you select AAA and AAA will refuse to take the case that the plaintiff must commence.

A JDB won't commence anyway, so it would never get to the point of AAA refusing the case.