Just served papers. Lawsuit from Midland

[Yungskeeme]

Hi all, 

I was recommended to this forum after finding out I was being sued by Midland. They filed a lawsuit last year but never served me and it was dropped. They recently just refilled and I was served the papers today. It's for a GameStop (Community) credit card I opened back in 2014. The amount is for $935. I've requested for them to validate the debt and all they provided was the last statement. I honestly think the SOL had past but can't proof it. Not sure if it's going by the last day I made a payment, purchase or when it was charged off. I'm going to file an answer so an automatic judgement isn't put on me. I'm trying to find the best way to beat this. Keep seeing people on here talking about arbitration. Not sure what it is. Sorry I'm a very new to this and freaking out.

[Clydesmom]

5 hours ago, Yungskeeme said:

I've requested for them to validate the debt and all they provided was the last statement.

Once they sue it is way too late for validation but they did so anyway by providing that last statement.

5 hours ago, Yungskeeme said:

I honestly think the SOL had past but can't proof it. Not sure if it's going by the last day I made a payment, purchase or when it was charged off.

In Maryland it is 3 years from the first missed payment.  When did you make your last payment on the account?

5 hours ago, Yungskeeme said:

Keep seeing people on here talking about arbitration. Not sure what it is.

Search the forums.  There are many threads on it and how to use it.

[Yungskeeme]

18 minutes ago, Clydesmom said:

Once they sue it is way too late for validation but they did so anyway by providing that last statement.

In Maryland it is 3 years from the first missed payment.  When did you make your last payment on the account?

Search the forums.  There are many threads on it and how to use it.

Sorry, I was saying with the first lawsuit they filed I requested validation. Don't they also need to send me the application I signed or something to show this is really my debt.

 

Yup 3 years in MD. A paper at the back of my serving papers say my last payment date was 4/14/16.

Ill search other posts. I did search a little bit but still confused about what it is exactly

[Clydesmom]

13 minutes ago, Yungskeeme said:

Sorry, I was saying with the first lawsuit they filed I requested validation.

Same answer still applies for anyone who reads this thread.  Once you have been sued it is WAY too late for validation and the Plaintiff does not have to comply and it is not a violation of the FDCPA.

14 minutes ago, Yungskeeme said:

Don't they also need to send me the application I signed or something to show this is really my debt.

Depends on what the Judge feels is sufficient to prove their case.  Some want the application showing you opened the account others will simply ask if the name/address on the statements are yours and if it is that is sufficient to establish the account is yours.  Unless you are claiming identity theft it is not really that difficult to establish the debt is yours.

16 minutes ago, Yungskeeme said:

A paper at the back of my serving papers say my last payment date was 4/14/16.

Then they filed timely.  The SOL is not a defense you can use.

16 minutes ago, Yungskeeme said:

I did search a little bit but still confused about what it is exactly

The point is not to actually arbitrate the case.  When it comes to a JDB like Midland the cost of arbitration is way more than they paid for the debt.  If a consumer can get a court to compel them to arbitrate they always drop the entire case and cease collections because it is way too expensive compared to what little if anything they might collect.

[Yungskeeme]

1 hour ago, Clydesmom said:

Same answer still applies for anyone who reads this thread.  Once you have been sued it is WAY too late for validation and the Plaintiff does not have to comply and it is not a violation of the FDCPA.

Depends on what the Judge feels is sufficient to prove their case.  Some want the application showing you opened the account others will simply ask if the name/address on the statements are yours and if it is that is sufficient to establish the account is yours.  Unless you are claiming identity theft it is not really that difficult to establish the debt is yours.

Then they filed timely.  The SOL is not a defense you can use.

The point is not to actually arbitrate the case.  When it comes to a JDB like Midland the cost of arbitration is way more than they paid for the debt.  If a consumer can get a court to compel them to arbitrate they always drop the entire case and cease collections because it is way too expensive compared to what little if anything they might collect.

I understand it's too late to validate now.

Didn't know different judges went by different standards. 

My trial is two days after the 3 year mark. Understand now that the lawsuit has to be filed before the SOL.

I must've read it wrong but I thought I read somewhere that I would have to pay a fee for the arbitration. I really do need to do some research. With the information you provided me what would you do? Just pay it or go the arbitration route?

[Clydesmom]

9 minutes ago, Yungskeeme said:

With the information you provided me what would you do? Just pay it or go the arbitration route?

File an answer to the suit using arbitration in JAMS as an affirmative defense.  You can start a case in JAMS without paying the fee immediately.  Then file a MTC arbitration with the court.  If the motion is approved Midland will ask what you want to drop it.  You want a mutual walk away.  If the MTC is denied by the court you can appeal that or settle at any time prior to trial.  I would try arbitration before settling.

[Yungskeeme]

36 minutes ago, Clydesmom said:

File an answer to the suit using arbitration in JAMS as an affirmative defense.  You can start a case in JAMS without paying the fee immediately.  Then file a MTC arbitration with the court.  If the motion is approved Midland will ask what you want to drop it.  You want a mutual walk away.  If the MTC is denied by the court you can appeal that or settle at any time prior to trial.  I would try arbitration before settling.

Thank you so much. I'll start reading more into the arbitration. I know MTC is Motion to Compel but what is JAMS? So you're saying for my reply back to the courts should mention the arbitration? I'll look into it more.

[fisthardcheese]

9 hours ago, Yungskeeme said:

Thank you so much. I'll start reading more into the arbitration. I know MTC is Motion to Compel but what is JAMS? So you're saying for my reply back to the courts should mention the arbitration? I'll look into it more.

You need a copy of the Comenity Card Agreement.  The Arbitration section of that card agreement explains your right to arbitration.  You must file an answer on time in court and deny all allegations so that they do not get a default judgement.  After that you can work on your motion to compel arbitration.

Explanation for using arbitration is in the link in my signature below.

[Yungskeeme]

40 minutes ago, fisthardcheese said:

You need a copy of the Comenity Card Agreement.  The Arbitration section of that card agreement explains your right to arbitration.  You must file an answer on time in court and deny all allegations so that they do not get a default judgement.  After that you can work on your motion to compel arbitration.

Explanation for using arbitration is in the link in my signature below.

Just downloaded it from the CFPB site. Confused about fees that I may have to pay. The arbitration section states they will pay the fees but I thought I read something about me having to pay something. Like you said, first step is to file my answer. Still researching on what to put in it

Gamestop.pdf

[fisthardcheese]

6 minutes ago, Yungskeeme said:

Just downloaded it from the CFPB site. Confused about fees that I may have to pay. The arbitration section states they will pay the fees but I thought I read something about me having to pay something. Like you said, first step is to file my answer. Still researching on what to put in it

Gamestop.pdf

The arbitration section says they will pay fees that are "required by law".  This means you will have to pay the consumer filing fee, which is $200 for AAA and $250 for JAMS.   For this account, I would use AAA.

But first, you must file an answer and then an MTC before you even worry about that part.  For the answer, you just either go line by line down their complaint and deny each allegation that they make (using the same paragraph numbers for your response to each of their numbered paragraphs in their complaint), or, if your court allows, you can file a general denial that just says you deny each and ever allegation made in their complaint.  You would then list your affirmative defenses as a seperate section. You have one affirmative defense and that is "lack of subject matter jurisdiction due to a private arbitration clause in the underlying contract".

[Yungskeeme]

1 hour ago, fisthardcheese said:

The arbitration section says they will pay fees that are "required by law".  This means you will have to pay the consumer filing fee, which is $200 for AAA and $250 for JAMS.   For this account, I would use AAA.

But first, you must file an answer and then an MTC before you even worry about that part.  For the answer, you just either go line by line down their complaint and deny each allegation that they make (using the same paragraph numbers for your response to each of their numbered paragraphs in their complaint), or, if your court allows, you can file a general denial that just says you deny each and ever allegation made in their complaint.  You would then list your affirmative defenses as a seperate section. You have one affirmative defense and that is "lack of subject matter jurisdiction due to a private arbitration clause in the underlying contract"

Cool I'll get right on it. So there's a possibility that I pay the filing fee and still have to pay them back? I've read that they using drop the case at arbitration time. Just want to know all the situationd I may face

[fisthardcheese]

17 hours ago, Yungskeeme said:

Cool I'll get right on it. So there's a possibility that I pay the filing fee and still have to pay them back? I've read that they using drop the case at arbitration time. Just want to know all the situationd I may face

Put it this way, you would be the first person we have heard of who got a court to grant an MTC, filed for arbitration and then had an arbitration award issued against them by a JDB.

Read up on arbitration in the link in my signature below.

[Yungskeeme]

1 hour ago, fisthardcheese said:

Put it this way, you would be the first person we have heard of who got a court to grant an MTC, filed for arbitration and then had an arbitration award issued against them by a JDB.

Read up on arbitration in the link in my signature below.

Thanks for all your help. I'll read up on it. I'm on mobile and doing see a lot of link in your description

[Yungskeeme]

On 1/20/2019 at 11:40 AM, fisthardcheese said:

The arbitration section says they will pay fees that are "required by law".  This means you will have to pay the consumer filing fee, which is $200 for AAA and $250 for JAMS.   For this account, I would use AAA.

But first, you must file an answer and then an MTC before you even worry about that part.  For the answer, you just either go line by line down their complaint and deny each allegation that they make (using the same paragraph numbers for your response to each of their numbered paragraphs in their complaint), or, if your court allows, you can file a general denial that just says you deny each and ever allegation made in their complaint.  You would then list your affirmative defenses as a seperate section. You have one affirmative defense and that is "lack of subject matter jurisdiction due to a private arbitration clause in the underlying contract".

Found your strategy for the arbitration. Mailed off my Intention to Defend. For my defense I put deny debt per lack of proof and the reason you gave above". I was thinking of requesting a Request fir Production at this point would be good? I was thinking of sending this and if they don't reply then file the MTC.

[BV80]

1 hour ago, Yungskeeme said:

Found your strategy for the arbitration. Mailed off my Intention to Defend. For my defense I put deny debt per lack of proof and the reason you gave above". I was thinking of requesting a Request fir Production at this point would be good? I was thinking of sending this and if they don't reply then file the MTC.

I would hesitate to send a request for production.  Depending upon how your courts have ruled, requesting production could be considered engaging in litigation which could waive your right to demand arbitration.

You need to determine how your courts have ruled on the issue. 

[Yungskeeme]

52 minutes ago, BV80 said:

I would hesitate to send a request for production.  Depending upon how your courts have ruled, requesting production could be considered engaging in litigation which could waive your right to demand arbitration.

You need to determine how your courts have ruled on the issue. 

Ok, I'll hold off then. Pull the rules up but hard to understand. Ill just stick with the arbitration route. I'll mail my Intention to Defend to the plantiff Monday. I'm guessing my next step would be to file the MTC.

[Yungskeeme]

On 1/26/2019 at 1:43 PM, BV80 said:

I would hesitate to send a request for production.  Depending upon how your courts have ruled, requesting production could be considered engaging in litigation which could waive your right to demand arbitration.

You need to determine how your courts have ruled on the issue

Just received Notice of intent to rely on certified business records from Midland. What is that exactly.? Still waiting on my MTC to be granted.

[fisthardcheese]

5 hours ago, Yungskeeme said:

 

Just received Notice of intent to rely on certified business records from Midland. What is that exactly.? Still waiting on my MTC to be granted.

Did you check your court's rules on filing motions?  Does your court require you to set a hearing for your motion?  Also, did you mail a copy of the MTC to the Defendant's attorney?

Midland can say they are going to rely on whatever evidence they want.  It is essentially pointless because you are claiming that court is not the proper jurisdiction.  They will need to introduce their business record evidence in arbitration, which of course, cant happen until they pay the $5000 arbitration fee first and they won't.  Don't let them confuse the issue.  You have now filed an MTC, which means that the ONLY matter to be discussed in court now is whether there is a valid arbitration agreement between the parties.  If the court finds that a valid arbitration agreement exists, then the court MUST order the parties to arbitration.  All other matters regarding the debt should be reserved for arbitration only.  Remember this if you go to a hearing and the attorney starts to talk about the debt and argue points about it.  Just object and remind the court you have a pending MTC speaking to jurisdiction and that it should be heard first before other matters.

[BV80]

On 2/7/2019 at 3:23 PM, Yungskeeme said:

Just received Notice of intent to rely on certified business records from Midland. What is that exactly.? Still waiting on my MTC to be granted.

If that notice was from the attorney representing Midland, it seems to me  and that the law firm is simply informing you of its intent to rely on the certified records, just like it says. 

As @fisthardcheese has pointed out, it’s meaningless if you have not scheduled a hearing for your MTC.

[Yungskeeme]

7 hours ago, fisthardcheese said:

Did you check your court's rules on filing motions?  Does your court require you to set a hearing for your motion?  Also, did you mail a copy of the MTC to the Defendant's attorney?

Midland can say they are going to rely on whatever evidence they want.  It is essentially pointless because you are claiming that court is not the proper jurisdiction.  They will need to introduce their business record evidence in arbitration, which of course, cant happen until they pay the $5000 arbitration fee first and they won't.  Don't let them confuse the issue.  You have now filed an MTC, which means that the ONLY matter to be discussed in court now is whether there is a valid arbitration agreement between the parties.  If the court finds that a valid arbitration agreement exists, then the court MUST order the parties to arbitration.  All other matters regarding the debt should be reserved for arbitration only.  Remember this if you go to a hearing and the attorney starts to talk about the debt and argue points about it.  Just object and remind the court you have a pending MTC speaking to jurisdiction and that it should be heard first before other matters.

I looked at the rules and didn't see anything about setting up a hearing before hand. I mailed the copy of the the Demand for Arbitration to the attorney. Not the actual motion.

 

Was worried about the notice just wanted to know what it meant. Just waiting to get the decision on my motion.

[Yungskeeme]

4 hours ago, BV80 said:

If that notice was from the attorney representing Midland, it seems to me  and that the law firm is simply informing you of its intent to rely on the certified records, just like it says. 

As @fisthardcheese has pointed out, it’s meaningless if you have scheduled a hearing for your MTC.

No hearing. I'll look into that again. Was confused on why the form meant. Do they not have to send me whatever evidence they have?

[Yungskeeme]

Quick question. When filling your MTC did you have to request a hearing? Trying to figure out how I would find out the decision

[Brotherskeeper]

7 hours ago, Yungskeeme said:

I looked at the rules and didn't see anything about setting up a hearing before hand. I mailed the copy of the the Demand for Arbitration to the attorney. Not the actual motion.

Maryland Circuit Court rules

What do I do with the motion?

You must file your written motion with the court.  You must also give or mail a copy to the other parties in the case.  If another party is represented by a lawyer, you must give or mail that party’s copy to their lawyer.  After being served with a motion, another party has a set amount of time, usually 15 days, to file a written response with the court.  Generally, the court will not decide your motion until the other party has had this chance to respond. Read the Rules: Maryland Rule 1-321,  ("Service of pleadings and papers other than original pleadings"), Maryland Rule 1-322,  ("Filing of pleadings, papers, and other items"), Maryland Rule 2-311  ("Motions")

How will the court handle the motion?

In many cases, after leaving time for the other parties to respond, the court will simply read the motion and response(s) and issue an order.  In some cases, the court will schedule a hearing, to give you and the other party a chance to explain your arguments further.  In most cases, the court does not have to grant a hearing.

Remember, if you want the court to hold a hearing before deciding your motion or response, you have to ask for that.  First, the title of your motion or response must state that you are requesting a hearing.  Second, in the body of your motion or response, you must request a hearing under the heading “Request for Hearing.” Read the Rules:Maryland Rule 2-311  ("Motions"), Maryland Rule 1-301  ("Form of court papers")

[Yungskeeme]

4 minutes ago, Brotherskeeper said:

Maryland Circuit Court rules

What do I do with the motion?

You must file your written motion with the court.  You must also give or mail a copy to the other parties in the case.  If another party is represented by a lawyer, you must give or mail that party’s copy to their lawyer.  After being served with a motion, another party has a set amount of time, usually 15 days, to file a written response with the court.  Generally, the court will not decide your motion until the other party has had this chance to respond. Read the Rules: Maryland Rule 1-321,  ("Service of pleadings and papers other than original pleadings"), Maryland Rule 1-322,  ("Filing of pleadings, papers, and other items"), Maryland Rule 2-311  ("Motions")

How will the court handle the motion?

In many cases, after leaving time for the other parties to respond, the court will simply read the motion and response(s) and issue an order.  In some cases, the court will schedule a hearing, to give you and the other party a chance to explain your arguments further.  In most cases, the court does not have to grant a hearing.

Remember, if you want the court to hold a hearing before deciding your motion or response, you have to ask for that.  First, the title of your motion or response must state that you are requesting a hearing.  Second, in the body of your motion or response, you must request a hearing under the heading “Request for Hearing.” Read the Rules:Maryland Rule 2-311  ("Motions"), Maryland Rule 1-301  ("Form of court papers")

Wow so I missed the part about making the motion to them. I was reading another post about arbitration and only the demand was sent. I'll send the motion asap. If I'm reading what you posted correctly, a hearing can be requested but it's not mandatory. Is that correct?

[Brotherskeeper]

1 hour ago, Brotherskeeper said:

In many cases, after leaving time for the other parties to respond, the court will simply read the motion and response(s) and issue an order.  In some cases, the court will schedule a hearing, to give you and the other party a chance to explain your arguments further.  In most cases, the court does not have to grant a hearing.

@Yungskeeme I am not a lawyer and have no experience with Maryland courts, so I don't know how common it is for a motion to compel arbitration to be decided at a hearing. If I understand you correctly (since we haven't seen any of your drafts, right?) you've only written a "demand for arbitration" and sent it to the plaintiff's attorney, not filed a formal motion. Did you receive any response to your arb demand from the plaintiff's attorney? If not, I might suggest you include this information in your motion to compel, along with a fact-descriptive paragraph in an affidavit and a copy of the arb "demand" letter, noted as a true and correct copy and marked as an exhibit.  This step would demonstrate to the court that your attempt to move to arbitration without involving the court was ignored. @fisthardcheese or @Harry Seaward may have a different opinion, but if I were in your shoes, I'd include in your motion the "Request for Hearing" under a separate heading as your rules require--if those are the rules of your specific court. The plaintiff needs to file a written response to your motion if they oppose it. In that case, having requested a hearing will come in handy. If no response in opposition is filed, the court may grant your motion by signing the order included with your motion papers.