Sued by Midland in Missouri, need help on short notice

[S.A.J.]

1. Who is the named plaintiff in the suit? Midland Funding LLC

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

3. How much are you being sued for? $1812.56

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent letters and phone calls. Can't recall if I ever spoke to them.

9. What state and county do you live in? Missouri, Cass County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) November 2016 I believe

11. When did you open the account (looking to establish what card agreement may be applicable)? Papers with petition say 2010. I don't think I have anything of my own that shows if that's correct but that sounds about right.

12. What is the SOL on the debt? To find out: 5 years in Missouri I think

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Account stated, not disposed is the status on casenet. I was served back in October. In Missouri you aren't required to file an answer, summons just states to show up at court to answer the petition. I went to court on Nov. 6 with what I thought were the correct answers (just realized recently that I've been reading outdated info on here about the best way to answer). For the few of us that actually showed up, the lawyer just continued cases. When he called me all he did was point at the amount I'm being sued for and ask "what do you want to do about this?" I said I didn't see enough proof in the papers they included with the summons to know whether I owed that amount, or that I owed it to Midland. Then he had me sign the memorandum to continue the case to January 7, 2019.

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? 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'). No

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

This is one thing I'm confused about. As stated above, I responded by appearing in court to answer, but then I don't think I technically answered, just got continued.

As far as charges, what I received with summons was titled Petition - Account Stated, saying I owe the amount shown above. (Did eventually receive interrogatory, request for admistions, and request for documents, see below.)

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Affidavit from a legal specialist employed by Midland Credit Management.

Sheet with my information (such as name, last 4 of account number, contract/last payment/last purchase/chargeoff dates, balance) that says at the bottom "data printed from electronic records provided by Synchrony Bank pursuant to the bill of sale/assignment of accounts transferred on or about 08/28/2017"

Bill of Sale from Synchrony to Midland (no specific mention of my account on this).

Purchase price reconciliation/funding instructions (again no specific mention of my account).

NLEX Statement Synchrony Midland, all information blacked out except the funding date.

Affidavit of sale of account from an affidavit documentation specialist of Synchrony Bank in Minnesota. States the sale of a pool of accounts. No mention of my account.

Certificate of conformity basically saying the above affidavit conforms to the laws of Minnesota.

Verification that I'm not an active duty member of the armed forces.

Two statements from Synchrony: One is dated 8/12/16. The other is the final statement dated 7/11/17 showing the chargeoff with a new balance of $0

18.  How did you find out about this site?

Searching online for help

18. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[S.A.J.]

Now here's the current situation. On December 13 I received a packet with Request for admissions, Interrogatories, and Request to produce documents. The paperwork is dated November 16, 2018 and states they mailed it to me on that date. The envelope is actually postmarked December 7, 2018. This looks sneaky to me.

I looked on casenet after I received the packet and found the information at the bottom of this post, added to the docket entries. I called the circuit clerk to ask about it, and she thought it was unusual as well, as far as the dates, and told me to hang onto the postmarked envelope.

Since the packet was actually mailed on December 7, not on November 16 as stated on the Certificate of Mailing that was included, I assume the 30 day clock didn't start ticking until that true mailing date of December 7. So while I was trying to figure out how to answer their requests, that's when I stumbled across the newer posts that say the information I was using (from this forum) is no longer the best way to beat Midland. I understand the best thing to do is file a MTC Arbitration, but I'm confused on how to do it in general, whether I'm still in the time frame to file it (not sure if I've technically answered the charges just by appearing in court and them continuing the case), and if I file the MTC does that mean I don't answer their requests at all?

I know I'm running really short on time, especially with all these days lost due to the holidays. I wish I'd run across the Arbitration information back in October when I first got served and started looking for help, but I thought I had it covered and under control. Now I'm like a deer in the headlights, totally frozen and unsure what to do next. I do plan on filing bankruptcy eventually, but am waiting on some final medical bills from my recent hospitalization. So I don't know if I should just ignore this and let them have their default judgement, and wipe it out with the bankruptcy. I think I'm pretty much judgement proof since I don't have much of value and am self-employed but currently not working. Still I wonder if it's better to do Arbitration and put this off/keep it from showing up on public record, as well as just for the fact that I hate the way JDBs work. So many questions, so little time. Help please!

12/07/2018		Cert Serv Req Prod Docs Things
		CERTIFICATE OF SERVICE; Electronic Filing Certificate of Service.
		Filed By: DAVID REID GAMACHE
		On Behalf Of: MIDLAND FUNDING LLC

[Harry Seaward]

You need to decide what course you ultimately want to take re: bankruptcy, etc, but in the mean time, you can wipe this debt out with arbitration, provided you can get a court to order the parties into arbitration.

Read the first couple posts of this thread:
https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[S.A.J.]

Thanks for your reply. Yes I've read that thread. I'd like to attempt the arbitration route at this point, since I don't know how long it will be before I can file bankruptcy. I'd like to try everything I can, instead of just rolling over and giving them a default judgement.

Can you comment on the date issue....when they stated they mailed the discovery forms vs. when they actually mailed them? Can they be in trouble over that? Is my real deadline to answer 30 days from the date mailed (and filed with the court coincidentally), not the date they stated they mailed?

If I get the MTC filed before the continued court date, does that mean I don't need to answer their request/interrogatories? What about the initial answer, which was supposed to be at the first court appearance on Nov. 6, which got continued to Jan. 7. Does that mean I never officially answered yet, and can they send those discovery requests even if I haven't officially answered the charges?

I saw, and commented on, your template for an MTC on another thread, but then realized it was specifically worded for Tennessee. Was hoping to use a template as I'm concerned about formatting and wording the MTC correctly, and I can't find information about how to do this in Missouri.

 

 

[S.A.J.]

BTW Im searching for the agreement with the arbitratition clause and so far no luck. This was a Synchrony Sutherlands account.

[BV80]

23 minutes ago, S.A.J. said:

BTW Im searching for the agreement with the arbitratition clause and so far no luck. This was a Synchrony Sutherlands account.

https://www.consumerfinance.gov/credit-cards/agreements/

Check the archives.  

[Harry Seaward]

1 hour ago, S.A.J. said:

Can you comment on the date issue....when they stated they mailed the discovery forms vs. when they actually mailed them? Can they be in trouble over that? Is my real deadline to answer 30 days from the date mailed (and filed with the court coincidentally), not the date they stated they mailed?

I would go by the date it was filed with the court, but answering discovery requests could be considered a waiver of your right to arbitration, so I wouldn't admit or deny any of their requests. My typical advice to respond an objection on the grounds that answering may waive your right to arbitration.

1 hour ago, S.A.J. said:

If I get the MTC filed before the continued court date, does that mean I don't need to answer their request/interrogatories? What about the initial answer, which was supposed to be at the first court appearance on Nov. 6, which got continued to Jan. 7. Does that mean I never officially answered yet, and can they send those discovery requests even if I haven't officially answered the charges?

I don't know your court rules.  What do they say about filing an answer? 

1 hour ago, S.A.J. said:

I'm concerned about formatting and wording the MTC correctly, and I can't find information about how to do this in Missouri.

They're all pretty much the same.  You're just telling the court you want it to order the parties into arbitration in accordance with the credit card agreement.

[S.A.J.]

20 hours ago, Harry Seaward said:

I would go by the date it was filed with the court, but answering discovery requests could be considered a waiver of your right to arbitration, so I wouldn't admit or deny any of their requests. My typical advice to respond an objection on the grounds that answering may waive your right to arbitration.

I don't know your court rules.  What do they say about filing an answer? 

They're all pretty much the same.  You're just telling the court you want it to order the parties into arbitration in accordance with the credit card agreement.

Are you saying I should asnwer the discovery requests but write that objection as the answer to every single statement? Or again, do I even need to respond to their requests if I file the MTC before the deadline? Does the MTC temporarily put everything on hold until the judge rules on whether or not it gets granted?

Next, as I mentioned in my original questionaire above, in Missouri we apparently aren't required to file an answer with the court. Summons says show up to court to answer the petition (pic below of original summons instructions). So I showed up to court that day with my answers, but it never went that far. Only got continued to January 7, 2019, which I assumed that meant they would want my answers at that continued date. Then I get the packet of discovery documents and am confused if they should even be sending them yet, since I never officially answered due to the continuance.

And for the MTC, could I use that template you supplied in a previous thread... "Going against Midland tomorrow" was the title...and just fill in the correct information, and omit the part about the Tennessee code? Do I have to supply a Missouri code? My county court rules that I found online are pretty basic, mostly they say "No local rule" and I'm not finding any specific section about filing answers or motions. I'm including a page from our local court rules so you can see what I mean.

Sorry I'm so confused. I have anxiety issues and am probably over thinking alot of this, but I don't want to screw it up. Thanks for your help. Is there anyone here with Missouri experience that could chime in as well?

 

Local Court Rules with Index 10.2018.pdf

[S.A.J.]

Oops, sorry, the pdf appears to be the entire court rules. I thought I only saved one page to share here.

[S.A.J.]

On 12/26/2018 at 10:22 PM, BV80 said:

https://www.consumerfinance.gov/credit-cards/agreements/

Check the archives.  

I'm downloading the archive from 3rd quarter 2017, which is when Synchrony charged off my debt, so I hope that's the right one and I hope Sutherlands is in there somewhere.

[S.A.J.]

I did find the current Synchrony/Sutherlands agreement, and it sounds iffy on whether they pay all the arbitration fees or not. From the agreement....

4.

The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator

charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you

prevail on claims you assert against us in an arbitration proceeding which you have commenced.

[BV80]

19 minutes ago, S.A.J. said:

I did find the current Synchrony/Sutherlands agreement, and it sounds iffy on whether they pay all the arbitration fees or not. From the agreement....

4.

The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator

charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you

prevail on claims you assert against us in an arbitration proceeding which you have commenced.

You’re assuming Midland will arbitrate.

[S.A.J.]

27 minutes ago, BV80 said:

You’re assuming Midland will arbitrate.

From what I'm reading here, they won't arbitrate because it costs them from the beginning. But that clause makes it sound like they only pay if I win. Still waiting for the archived agreements to download. Huge file.

[Goody_Ouchless]

28 minutes ago, S.A.J. said:

But that clause makes it sound like they only pay if I win.

Maybe if you had actual claims against them. In this case they will have to pay more than the debt is worth, so you will win if you listen and follow.

 

[S.A.J.]

The Synchrony/Sutherlands agreement isn't included in the 2017 archive that I downloaded, so I'm downloading a 2016 archive to look through. I did amazingly find the original agreement from when I applied in 2010, but that's when they were called GE Money Bank. I'm sure this was updated at some point, so would the original agreement be too old to use in the MTC?

On 12/26/2018 at 10:47 PM, Harry Seaward said:

I would go by the date it was filed with the court, but answering discovery requests could be considered a waiver of your right to arbitration, so I wouldn't admit or deny any of their requests. My typical advice to respond an objection on the grounds that answering may waive your right to arbitration.

Back to this question, can you give me more information on how to object to the discovery? Do I need to file paperwork with the court stating my objection in general to any discovery? Or do I answer every point on the discovery with the objection and return it to the lawyer (or possibly give it to their rent-a-lawyer in court on Monday)? Or will filing the MTC be enough to stay everything until the judge rules on that?

I checked casenet and once again there are over 100 people listed for the same court time as me, 17 specifically being sued by Midland. Most are showing "civil setting" but mine is showing "hearing". Don't know if that makes any difference as to how to handle this. There's only one other person being sued by Midland that has the same certificate of service/discovery requests on the docket entries, and her's also shows "hearing". I know I'm all over the place here, but just want to include any info that might be helpful.

[Harry Seaward]

1 hour ago, S.A.J. said:

Do I need to file paperwork with the court stating my objection in general to any discovery?

No

1 hour ago, S.A.J. said:

Or do I answer every point on the discovery with the objection and return it to the lawyer (or possibly give it to their rent-a-lawyer in court on Monday)?

Yes, but then you should also file a certificate of service with the court so it's on the record that you did in fact respond.

1 hour ago, S.A.J. said:

Or will filing the MTC be enough to stay everything until the judge rules on that?

It's supposed to, but I wouldn't risk it.

1 hour ago, S.A.J. said:

Most are showing "civil setting" but mine is showing "hearing".

Have there been any motions filed in your case, by either side?

[S.A.J.]

20 hours ago, Harry Seaward said:

No

Yes, but then you should also file a certificate of service with the court so it's on the record that you did in fact respond.

It's supposed to, but I wouldn't risk it.

Have there been any motions filed in your case, by either side?

I don't see any motions filed. Basically all that shows on docket entries is I was served, went to first court date, lawyer continued it, and they sent me the discovery documents. 

If I mail the discovery with objections, they likely won't get them before the next court date on Monday Jan. 7. I guess that's fine as long as it's mailed by the 30 day deadline? You are saying to mail it, not hand it to the lawyer that shows up in court, right?

 Still irks me that they dated the documents and certificate of service November 16, 2018 but didn't actually mail or file with the court until December 7. I expect them to say the deadline was December 16.

 

 

[Harry Seaward]

4 hours ago, S.A.J. said:

I don't see any motions filed. Basically all that shows on docket entries is I was served, went to first court date, lawyer continued it, and they sent me the discovery documents. 

So what's probably happened is the automatic function on the second court appearance is a hearing.  You're on your second appearance, it was entered as a hearing on the docket by default.

4 hours ago, S.A.J. said:

You are saying to mail it, not hand it to the lawyer that shows up in court, right?

You can hand it to him.  What I was saying is that you don't file the actual discovery responses with the court.  But you do need to file a certificate of service with the court to be sure there is a record that you did serve your responses on them.

4 hours ago, S.A.J. said:

Still irks me that they dated the documents and certificate of service November 16, 2018 but didn't actually mail or file with the court until December 7.

You might file a notice with the court to clarify the date discrepancies.  Include whatever evidence you have to show when it was actually mailed.  If you want.  It's really not necessary as long as you bring that stuff to your court appearances as proof should they try to claim otherwise.

[S.A.J.]

1 hour ago, Harry Seaward said:

You can hand it to him.  What I was saying is that you don't file the actual discovery responses with the court.  But you do need to file a certificate of service with the court to be sure there is a record that you did serve your responses on them.

 

This is probably a dumb question. They sent the original, 2 copies, and a cd of the discovery requests. Do I need to hand write my answers on the originals and return those, or can I use the CD docs to fill in and print out from my computer (retaining the originals for myself)?

[S.A.J.]

On 12/26/2018 at 10:47 PM, Harry Seaward said:

I would go by the date it was filed with the court, but answering discovery requests could be considered a waiver of your right to arbitration, so I wouldn't admit or deny any of their requests. My typical advice to respond an objection on the grounds that answering may waive your right to arbitration.

I'm trying to figure out how to word the objection on each of the documents. You said to object on every point. Does that include the statement about living in my County?

Pics below are parts of Request for Admissions, Interrogatories, and Production of Documents, just for reference. On Interrogatories, since I'm objecting to all questions on Request for Admission, do I type Not Applicable or Does Not Apply? Or still just state an objection on everything? Can you please use my pics to give an example of just how to word the objection?

Sorry again for what is probably overthinking on my part, but I want to do this right. Thanks for your help so far!

 

[S.A.J.]

I'm also still stuck on finding the credit card agreement from when the card was last active (2016 or 2017). The archives don't contain Synchrony/Sutherlands, maybe because Sutherlands is not a huge nationwide company.

As I mentioned before, I did find the original agreement from when I first applied (2010 when it was GE Money Bank) and Synchrony does have the current agreement on their website. But I don't know if either of those would work. I'm stuck.

 

 

[S.A.J.]

Just an update. After starting this thread, and having no confidence in my ability to properly do the MTC, I was searching for info on what happens after Midland gets a judgement. Somehow I ran across some links to posts on this forum about Midland's "pledge" and how they actually stand behind it, so I called Midland asking about this pledge and how I claim hardship.

The person I spoke to at Midland was friendly about it, but told me I had to call the attorney, that the attorney is aware of the Midland hardship clause, and that they would be able to help me. So I did that yesterday morning and at first the woman at the attorney office was very rude and acted like she didn't know what I was asking about. I explained again about Midland having a hardship clause, etc. She eventually said the person I needed to talk to was on another call and would call me back.

I hadn't received a call back as of this afternoon, so I looked at casenet just to see if anything had changed. I was surprised to see that my case has been continued from next Monday (Jan 7) to March 4. I don't think its because of my call since there are only 5 of the original 15 Midland cases left on the docket. The only other person who was sent discovery is also continued to March 4. The rest are MIA, I have no idea what happened to their cases.

So thanks to everyone who tried to help. If I have a good or bad experience with Midlands hardship clause, I'll try to share that in the right place.