Midland Funding Suing In NY

[SHELLY7]

Hi Everyone! New here, but have found so much useful information! I have kind of a bizarre question to ask since my case is somewhat strange?  I recently received a letter in the mail addressed to me stating that I was being sued (by Midland funding) this was from a lawyer who does bankruptcy.

I have never received anything in the mail from Midland etc so was quite in shock.  In my county, Suffolk County, New York you must file electronically. So I was able to see that I have indeed been "filed under" for a summons and complaint by Midland Funding (original creditor Synchrony Bank.) I have yet to been "served" actual papers, but can see my summons file on the e-filing site.  I have searched extensively with people stating once you receive a letter from Midland you should then send one back to ask for debt verification etc. yet, I've never got any mail from them? I suppose in my round about way, what I'm asking is there something I should do before I get served the papers legally?  I have 120 days apparently to be served so sort of feel like I'm just sitting here waiting to be served. I've called multiple debt lawyers in the area and the only thing they will do is offer to settle with Midland, which to me seems unlawful considering they haven't done anything by the book.

If anyone has any advice if there is action to take before "being served" or if you should just wait and see if they do indeed serve me the papers. It should also be noted, they filed a summons against me in NYC, of which I had no knowledge and never served me papers, so am wondering if they'll do same thing again? Just found the old case online too which they voluntarily dismissed and I literally lived for a year with no knowledge of?

Any advice or insight would be greatly appreciated and sorry for bizarre long-winded explanation.

[Clydesmom]

26 minutes ago, shellsnyc said:

I have never received anything in the mail from Midland etc so was quite in shock.

They are not required to contact you in NY prior to suing.

26 minutes ago, shellsnyc said:

I have searched extensively with people stating once you receive a letter from Midland you should then send one back to ask for debt verification etc. yet, I've never got any mail from them?

Had they sent you a dunning letter this would be accurate.  There is no requirement they ask you to pay first.  They can simply sue you.

27 minutes ago, shellsnyc said:

I suppose in my round about way, what I'm asking is there something I should do before I get served the papers legally?

Decide if you are going to defend the suit, let it go to default, try for arbitration or file bankruptcy.  Since they have already filed the suit it is WAY too late for validation.

28 minutes ago, shellsnyc said:

I've called multiple debt lawyers in the area and the only thing they will do is offer to settle with Midland, which to me seems unlawful considering they haven't done anything by the book.

Not sure what "book" you are referring to but based on what you have said they have not violated collection laws so far.

Who is the original creditor they bought the debt from?

[SHELLY7]

Thanks Clyde, I meant "by the book" as in I read in NY new laws that were amended in 2014 stating that they "had to provide evidence to the court that they actually purchased the debt from the original creditor" "have a valid assignment or bill of sale from the original creditor that actually shows that your specific account was transferred" "that they must have an affidavit or testimony from the original creditor attesting that the bill of sale is true and accurate."

I guess that's what I mean but perhaps they don't need all that just to file a summons and complaint, they have to do that in court perhaps? Sorry am such a novice and I am sure you are much more educated then I am.  The original creditor is Synchrony Bank PayPal-branded account for a debt of $3400.

So I guess there is nothing I can do then wait to be served the papers officially and then go to court or decide if I even want to or try to settle before?

Thanks again ever so much for the insight. No lawyers I have contacted have been able to help and this forum has been so insightful, really appreciate it and getting back to me @Clydesmom

[Clydesmom]

25 minutes ago, SHELLY7 said:

I guess that's what I mean but perhaps they don't need all that just to file a summons and complaint, they have to do that in court perhaps?

Correct.  Not all states require the evidence be attached to the complaint.  They DO have to prove their case at trial.

26 minutes ago, SHELLY7 said:

The original creditor is Synchrony Bank PayPal-branded account for a debt of $3400.

Synchrony has the BEST arbitration clause of all creditors.  Once you are served I would file an answer with a general denial and invoking my right to arbitration in JAMS per the card agreement to the account alleged in the complaint.

27 minutes ago, SHELLY7 said:

So I guess there is nothing I can do then wait to be served the papers officially and then go to court or decide if I even want to or try to settle before?

Not at all.  Read my answer above.  Start researching arbitration on the forum.

 

[SHELLY7]

Thank you so much for this @Clydesmomsorry I'm so not with it and I will DEFINITELY search the forum, could you answer me this-can you do the JAMS thing before you are served or do you have to wait before you are formally served the papers? Could I do it now or would you wait? They've filed a summons and complaint, but I haven't been "served" (like in person having the papers handed to me) nor did they serve me the last time?

Also, might I ask and I guess this is kind of just a general opinion question, but if, like in NY state for instance there are all these new rules whereby in order to win a case they must have this bill of sale etc in order to get a default judgement...if they don't have this, or assuming they don't have this, then why do they file all these suits? To scare the citizen into paying them do you think? 

Thanks again for all your help, I've gained more from this afternoon then I have tons of hours on the phone!

[nobk4me]

Wait until you are served.  Then file an answer to the lawsuit and your MTC Arbitration.   The MTC Arb is key.  File that first, and if it is granted (which it should be), then file in JAMS.  In fact, it may not even be necessary to go to JAMS.  The plaintiff may dismiss after the MTC Arb is granted and the case is stayed.

[SHELLY7]

@nobkme ok, thank you SO much! I read that MTC Arbitration doesn't like Midland, but in essence I would be filing with Synchrony bank is what you are saying? Do you know if I can do all this myself (it's with NY Supreme Court of Suffolk County) and is all done on e-file, also is there somewhere on here or online where I can see how people do this MTC thing?

My GOODNESS you people are wondrous humans and I hope the world pays it forward for you-if you ever come to NY drinks on me!

Oh, and also, where can I find this synchrony bank stuff-I think mine was with PayPal smart connect like in 2005 so have no clue? THANK YOU SO MUCH!

[SHELLY7]

4 minutes ago, nobk4me said:

Wait until you are served.  Then file an answer to the lawsuit and your MTC Arbitration.   The MTC Arb is key.  File that first, and if it is granted (which it should be), then file in JAMS.  In fact, it may not even be necessary to go to JAMS.  The plaintiff may dismiss after the MTC Arb is granted and the case is stayed.

@nobk4me sorry am so dumb but what would my answer be to the lawsuit? Is there somewhere to find a sample of this kind of stuff? Can you do it yourself or do you have to hire a lawyer? All of the lawyers I've spoken to will only help me "settle" with Midlands which is EXACTLY what I don't want to do....

[SHELLY7]

Sorry, and just to clarify since I obviously no nothing, my original creditor was PayPal smart connect, which I want to say started with GE bank? but on my summons it says synchrony bank PayPal branded account (which is what it seemed to move to later payment wise though it originally started with GE bank but I think that got bought by Synchrony) so I assume that my arbitration stuff is with Synchrony Bank?

[SHELLY7]

Sorry, I am responding again with another question and I AM SO SORRY!

The only thing I can find about synchrony bank and this whole arbitration is a newer agreement (since mine was from 2005) 

It's this number two section where they state that they will not require to arbitrate, do you think this is something someone as well seasoned as Midland could twist? 

I have posted below and then in which case do you think it might be better to file a request for production and ask for the signed original contract and such which is thus needed by New York to make a default judgement? Is there someone on here who is more versed in NY specific laws?

Thank you again EVERYONE who has responded, I am sorry for clogging this forum up with questions, has been my only resource but I will sleep so much easier tonight and am truly forever grateful!

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or PayPal, Inc., if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

[Harry Seaward]

10 minutes ago, SHELLY7 said:

do you think this is something someone as well seasoned as Midland could twist? 

They have tried in the past. We've seen judges fall for it, but just be prepared to explain "we will not..." doesn't mean "you can not..." They also leave the door wide open for admission when they say they can still use it if you countersue.

Also, if the agreement provides for it, I prefer AAA over JAMS. The fees are a little lower and the rules are a little more consumer friendly. 

[Clydesmom]

18 minutes ago, SHELLY7 said:

Sorry, I am responding again with another question and I AM SO SORRY!

First take a DEEP BREATH.  You are getting so far ahead of yourself and you have not even been served yet.  One step at a time.  Please start doing research on HOW you MTC arbitration and make it stick.

1 hour ago, SHELLY7 said:

Sorry, and just to clarify since I obviously no nothing, my original creditor was PayPal smart connect, which I want to say started with GE bank? but on my summons it says synchrony bank PayPal branded account (which is what it seemed to move to later payment wise though it originally started with GE bank but I think that got bought by Synchrony) so I assume that my arbitration stuff is with Synchrony Bank?

The only thing I can find about synchrony bank and this whole arbitration is a newer agreement (since mine was from 2005) 

You need the Synchrony Pay Pal card agreement that is current for they year you defaulted.  So if you defaulted in 2016 and the most current card agreement is 2016 you use that one.  If the most current one is 2015 or 2014 you use that one.  

21 minutes ago, SHELLY7 said:

I have posted below and then in which case do you think it might be better to file a request for production and ask for the signed original contract and such which is thus needed by New York to make a default judgement?

You have to decide if you are going to defend the suit or try to get them to back down by getting a MTC arbitration approved by the court.  If you do discovery and demand documents that is participating in the litigation process and in many states waives your right to arbitration.  So pick a path carefully.  The entire point of arbitration is NOT to arbitrate.  Arbitration is VERY expensive for Midland.  100% of the time when the court approves it they simply drop the entire matter.  When they ask you what you want after they receive the motion the answer is "mutual walk away."  That means you get nothing and they stop collecting.

 

[Goody_Ouchless]

2 hours ago, SHELLY7 said:

if you ever come to NY drinks on me!

As the resident drunk, I'll take you up on that!

 

[SHELLY7]

50 minutes ago, Harry Seaward said:

They have tried in the past. We've seen judges fall for it, but just be prepared to explain "we will not..." doesn't mean "you can not..." They also leave the door wide open for admission when they say they can still use it if you countersue.

Also, if the agreement provides for it, I prefer AAA over JAMS. The fees are a little lower and the rules are a little more consumer friendly. 

Ahh thanks so much @Harry Seawardis there someone on here or somewhere you can contact to help with all of this stuff? everything in my county (Suffolk County NY) is electronically filed so I would like to do it once I am "officially served" but am still such a novice, could really use guidance and literally ALL of the many debt lawyers of contacted in NY will only help me settle against Midlands not contest them which just seem like a roundabout way of helping them win kind of

[SHELLY7]

35 minutes ago, Goody_Ouchless said:

As the resident drunk, I'll take you up on that!

 

@Goody_Ouchless please do,  I evidently need someone to help me with all these forms and if I can find someone who knows NY I will happily pay in rounds of drinks to their favorite local bar (my word of honor;)

[SHELLY7]

41 minutes ago, Clydesmom said:

First take a DEEP BREATH.  You are getting so far ahead of yourself and you have not even been served yet.  One step at a time.  Please start doing research on HOW you MTC arbitration and make it stick.

You need the Synchrony Pay Pal card agreement that is current for they year you defaulted.  So if you defaulted in 2016 and the most current card agreement is 2016 you use that one.  If the most current one is 2015 or 2014 you use that one.  

You have to decide if you are going to defend the suit or try to get them to back down by getting a MTC arbitration approved by the court.  If you do discovery and demand documents that is participating in the litigation process and in many states waives your right to arbitration.  So pick a path carefully.  The entire point of arbitration is NOT to arbitrate.  Arbitration is VERY expensive for Midland.  100% of the time when the court approves it they simply drop the entire matter.  When they ask you what you want after they receive the motion the answer is "mutual walk away."  That means you get nothing and they stop collecting.

 

Ahh thank you so much @Clydesmom I can not tell you how much I appreciate this. Honestly, I have never even got a speeding ticket (though now that I say that I feel I have jinxed myself and will certainly get one this week) so this whole you are being sued has literally consumed my life and week and I have really spent most of the time in tears.

I have spoken to countless lawyers in NY who charge crazy fees and my debt is for $3400 so cost effectively it wouldn't make sense obviously to pay a thousand dollar an hour lawyer for this bill.  I also just don't want to give Midlands a penny since they seem like such terrible humans.  Would you recommend doing an arbitration movement by the court instead of litigation? The whole thing I am TRULY terrified of is in fact physically having to go to court and seeing as I can't even find a lawyer who will help me I am doubly so.

I am sorry for berating you with questions and for your time, but also, you say that arbitration is very expensive for them, is it for me? And lastly do you know of anyone who could help with these documents to move for arbitration? I'm in NY and the county I am in (Suffolk) does everything electronically so it doesn't even necessarily have to be someone in my area, just someone who knows this so they can help if and when I do get properly served and I can get back to sleeping at night without lawsuit dreams. Thank you so much for any advice or any people you might know of, and honestly if you are ever in NY @Clydesmom drinks and dinner on me, you've given me more insight and more chance of sleeping at night then countless hours on the phone with debt collecting lawyers who literally will only offer to help me settle with these awful creatures at midland.

[SHELLY7]

Gah and my LAST question is if you file for arbitration (whatever those steps might be that I evidently so very much need to figure out) and for some reason the judge says no to arbitration maybe because of that pesky number 2 clause or whatever can you then file a motion for discovery? or is it one or the other?

 

thank you again so much to everyone for all of your time, truly.

[Goody_Ouchless]

Assuming NY's arbitration rules follow Federal standard, if the judge messes up then you need to appeal. First steps are to determine how to answer and compose your Motion to Compel. Each locality seems different in terms if how to answer. In some places, how you answer can have ramifications, while in Texas, for example, a "General Denial" appears to cover all bases.

(I seem to recall a case from NY last year where someone did all of this, but I could be mistaken.)

 

[SHELLY7]

Thanks @Goody_Ouchless mmm I have to figure it all out am just trying to be prepared though they haven't even served me yet, I can see my papers online but they don't have the "bill of sale" or things that are needed in NY state to enter a default judgement for me.

Is so strange you think an attorney could just help answer some of that what do when, but they won't so I'm just sitting here with these summons and complaint that I see indexed, but not yet served trying to figure out the if and when of what I should do when I am served. sigh. it takes years off a persons life really!

 

[Clydesmom]

2 hours ago, SHELLY7 said:

I also just don't want to give Midlands a penny since they seem like such terrible humans.

More terrible than someone who defaults on their credit card debt and forces the creditor to sell the account to a schmuck willing to buy it in the hopes of collecting?

The business would not exist if consumers did not default.  It happens to the best of us but if it weren't for creditors being able to sell the bad debts off credit would be WAY more difficult to get and the majority of people would not have it.

1 hour ago, SHELLY7 said:

I can see my papers online but they don't have the "bill of sale" or things that are needed in NY state to enter a default judgement for me.

AGAIN, NY does not require they be in the complaint when it is filed  It only has to be in court at trial.  Put this issue on the back burner as it is NOT relevant YET.

1 hour ago, SHELLY7 said:

I'm just sitting here with these summons and complaint that I see indexed, but not yet served trying to figure out the if and when of what I should do when I am served.

1.  BREATHE

2.  Get a copy of the card agreement from the year you defaulted or year before if that is the most current one to your default.

3.  BREATHE

4.  Read threads on here on arbitration and the sample motions to compel arbitration that are all over the forum.  Type one up in the format for NY and have it ready to be signed and filed if you are served.

5.  BREATHE

6.  Read threads on answering a suit in NY and be ready to file a timely general denial with an affirmative defense invoking the right to arbitration per the card agreement if served.

7.  BREATHE

8.  Have a back up plan of appealing if the court denies the motion and/or proceeding to trial.  If the case proceeds to trial ask for a continuance to do discovery and THEN demand the documents you cannot seem to relax about at the moment.

9.  BREATHE

10.  If the motion is granted and Midland drops it come back here and update this thread.

11.  Celebrate and get drunk.

[SHELLY7]

Thank you @Clydesmom for all insight I shall do everything you say here and more.

Thanks also for reminding me to breath and you are right about creditors, but then again so many things are wrong right in our world?

I really appreciate your help today, and for taking the time to answer my questions. No doubt you are busy and have your own life and I do sincerely appreciate you taking the time.  Honestly you answered my questions and those pesky things I can't get past like the bill of sale better then any of the seven lawyers I've spoken to, so I really do appreciate it. I hope you have all your kindness and all the knowledge you've shown here paid forward and then some.

Lots of gratitude from NY!

[SHELLY7]

Just wanted to quickly post a thank you, though not sure if that's protocol to EVERYONE who helped me yesterday, I slept much better and woke up feeling ready-so a ton of gratitude.

Am wondering if there is someone on here who helps users with all this filing and arbitration letters etc or a service you recommend?

Will also obviously look up all the threads and forums as per everyone's suggestions, I just want to make sure I cross my T's and dot my I's so to speak whenever this happens so if there was someone familiar with doing all of this and could help guide me when the time comes, especially considering it's all e-filed in my NY county I'd be happy to pay.  Just wondering and will of course use everyone's threads and info as well.

Thanks again everyone, honestly.

[Clydesmom]

8 minutes ago, SHELLY7 said:

Am wondering if there is someone on here who helps users with all this filing and arbitration letters etc or a service you recommend?

The responses you are getting now IS the help.  We do not offer a paid legal service.  That is hiring an attorney.  What you need to gear up for is representing yourself requires a LOT of work and dedication to seeing it through.  It is not a matter of just cut and paste and e-filing.  You either buckle down for the work or hire a lawyer.  If you want someone who is more likely to understand arbitration and how to file the motion look at a NACA Consumer Attorney not a fly by night local yokel who either settles or files bankruptcy.

 

[SHELLY7]

thanks @clysdesmom no yokel here and understand it is free. Again appreciate you responding

5 minutes ago, Clydesmom said:

The responses you are getting now IS the help.  We do not offer a paid legal service.  That is hiring an attorney.  What you need to gear up for is representing yourself requires a LOT of work and dedication to seeing it through.  It is not a matter of just cut and paste and e-filing.  You either buckle down for the work or hire a lawyer.  If you want someone who is more likely to understand arbitration and how to file the motion look at a NACA Consumer Attorney not a fly by night local yokel who either settles or files bankruptcy.

 

 

[SHELLY7]

thank you @Clydesmom