SHELLY7

Midland Funding Suing In NY

121 posts in this topic

thank you so much @Brotherskeeper this really helps and I know to deny each line so I don't get into trouble and then can look up those affirmative defenses to be included in the answer. appreciate this A LOT

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@SHELLY7  This lawsuit is for $3400. (IANAL) I would expect--although @usctrojanalum would know much better--Midland will likely put forth more effort in court than it would for $950. At your price point, what is the quality of the evidence? This matters if you decide to remain in court. If Midland is compelled to arbitrate in AAA or JAMS, then the initial fees on a $3400 debt make far less business sense. 

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thanks for helping me @Brotherskeeper I have no idea what the quality of evidence is? I can send you the summons and complaint? It doesn't have like a bill of sale or such if that matters? I don't want to ever go to court if I can help it!

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My whole franticness is to keep this out of court, can I send you my summons and complaint or how can I tell the quality of evidence? am trying to help answer since you are being so kind to me @Brotherskeeper but I honestly just don't know. It doesn't seem like much or the things that they are supposed to have by NY laws (like bill of sale) or sworn affidavit etc. but according to some of the people on here they say they can just wait til court to bring that evidence? omg 

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I NEVER want to go to court if I can help it, just the knowledge of this thing filed has had me in a tailspin(obviously) that's why I have been so frantic on this site trying to see what to do (ie this whole motion to compel situation) to keep it out of court. There isn't enough Xanax or alcohol in the world for me to fathom court and all the lawyers I spoke to in a failed attempt at getting help wanted huge fees up front and then just to settle with midland, which made it seem totally NOT cost effective (hence I am here as the resident loon:)

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Just now, SHELLY7 said:

I have no idea what the quality of evidence is? I can send you the summons and complaint? It doesn't have like a bill of sale or such if that matters? I don't want to ever go to court if I can help it!

I don't know the rules of civil procedure for New York. (But you should!) A debt buyer plaintiff may not be required to attach to the complaint much evidence at all. That doesn't mean they don't have it. Normally, you would submit discovery requests for production of documents, interrogatories (questions), and requests for admissions. If you plan on filing a MTC arb, you would not engage in discovery, or the court may view that as waiving your right to arbitrate the disputes. I know you don't want to go to court, but outside of settling, I'm afraid you'll have to.  

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can I not say I don't want to waive my right to discovery? omg all of this I should counter sue for stress! I thought that if I was lucky enough to get the MTC arb I didn't have to go to court? do I have to go to court to try to get that. dear god in heaven. I thought that NY was so good for arbitration and this would help so I didn't have to go to court. dear lord no court.

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Just now, SHELLY7 said:

GAHHHHH NOOOO! I don't want to go to court!!! OMG @Brotherskeeper holy balls! 

Listen, you've got time to educate yourself, learn your options and the steps and rules to execute them. It may not seem like it now, but this experience and the skills you acquire during this will serve you well in life. 

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3 minutes ago, SHELLY7 said:

I thought that if I was lucky enough to get the MTC arb I didn't have to go to court? do I have to go to court to try to get that. dear god in heaven.

Again, I don't know how your court handles motions like this. You need to find out if you have to schedule a hearing when you file your motion. Some courts don't allow that; only the judge decides if s/he needs to hear arguments rather than decide on the motion papers. First things first. You need to calm down. Work on drafting your answer to comply with the state and local (if available) court rules. 

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18 hours ago, fisthardcheese said:

Filing a motion is more difficult than defending yourself on the merits in court?  That seems like an illogical statement.   Additionally, Of course attorneys can beat JDBs.  They also beat JDBs daily here in GA too, but a pro-se defendant can NOT and WILL get steamrolled.  Just because an attorney can win does not mean a pro-se consumer will using the exact same arguments.  That's just how it is.

We will agree to disagree on this one. Defending it on the merits will likely have no court appearances. Put in an answer that shows you know what you are doing, and direct discovery requests towards the documents and witnesses that they will provide, and the case will likely be voluntarily dismissed or not even prosecuted at all. 

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16 hours ago, Brotherskeeper said:

@SHELLY7  This lawsuit is for $3400. (IANAL) I would expect--although @usctrojanalum would know much better--Midland will likely put forth more effort in court than it would for $950. At your price point, what is the quality of the evidence? This matters if you decide to remain in court. If Midland is compelled to arbitrate in AAA or JAMS, then the initial fees on a $3400 debt make far less business sense. 

Here is why I don't like using arbitration against JDB's but I think it makes a ton of sense against OC's.

Midland will never have the documents or witnesses to win their claims in court in NY. They need authenticated documents from the original creditor and a witness from the original creditor. If you take the case out of arb, and Midland follows, and Midland wins - you lose certain appeal rights that you would have in the court system. Now we can argue the merits of whether Midland is going to follow into a consumer into arb. I generally agree that they probably will not - but none of us can know that for sure. What I do know with a high level of certainty is that Midland will never win at a trial or on a motion for summary judgment and will spend the majority of any litigation trying to settle. 

That is why New York stays cases pending arbitration, the court will retain jurisdiction to later turn the arbitration award into a judgment for the plaintiff or the defendant.

The reason why the arb strategy works well against OC's, because the merits do not matter. If you do not have legitimate defenses to the merits, it does not matter the forum where the case is litigated. It makes sense to go to arbitration to see if the original creditor is willing to pay the fees and expenses of arbitration or voluntarily abandon the case.  

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13 minutes ago, usctrojanalum said:

We will agree to disagree on this one. Defending it on the merits will likely have no court appearances. Put in an answer that shows you know what you are doing, and direct discovery requests towards the documents and witnesses that they will provide, and the case will likely be voluntarily dismissed or not even prosecuted at all. 

Thank you for all your help and information @usctrojanalum can I post my answer to court here or is that not allowed? I'd love for it be reviewed. And while I have you here now that I have done some research I see you go line by line to answer their allegations and then you give in your answers direct requests, am I allowed to do these answers with a request for some of these discovery items AND that I will be seeking arbitration per our original CC agreement or do you have to choose one or the other?

And lastly does the "court answer" have to be numbered or can it be a paragraph? If you know of any examples and can shoot me there I will look, as obviously have become a research hound.

Thanks again everyone for your time and patience with novice me.

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15 minutes ago, usctrojanalum said:

Midland will never have the documents or witnesses to win their claims in court in NY. They need authenticated documents from the original creditor and a witness from the original creditor. If you take the case out of arb, and Midland follows, and Midland wins - you lose certain appeal rights that you would have in the court system. Now we can argue the merits of whether Midland is going to follow into a consumer into arb. I generally agree that they probably will not - but none of us can know that for sure. What I do know with a high level of certainty is that Midland will never win at a trial or on a motion for summary judgment and will spend the majority of any litigation trying to settle. 

I'm certain this is true for those defendants with counsel and pro ses with the fortitude and acquired skills to mount a winning defense. Here, terrified OP Shelly is hoping never to set foot in court. 

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You can post your answer, just be mindful not to post anything that is identifiable. 

The most succinct answer will have numbered paragraphs that correspond to the plaintiff's numbered paragraphs.

A discovery request is in a separate document, and in NY practice you have the option to do that with your answer or do it later. Probably just best to do it later. No need to overwhelm yourself with that right now. 

 

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20 minutes ago, SHELLY7 said:

am I allowed to do these answers with a request for some of these discovery items

Have you researched the NY court standards for waiver of the right to arbitrate by participating in the litigation process? If you plan to use arbitration as an affirmative defense, followed up by a motion to compel, you'll be asking the court to force the other side into the arb forum to hear and decide the dispute. Any discovery then takes place in arb as allowed by the arbitrator. Please take the time to understand what you need to do and why before taking action. That way you won't make mistakes that may be impossible to rectify. When is the deadline to file your answer?

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@Brotherskeeper I have been researching more then I would like to admit. It seems like NY is pro arbitration so that does indeed work in your favor in some regard, though I understand what @usctrojanalum is saying that that doesn't have to be your only line of defense. I can't seem to work out if there is a one way or the other if you go for arbitration you waive your right for discovery, doesn't seem so.  There is this recent article https://fhnylaw.com/court-holds-motion-compel-arbitration-cannot-made-non-movant-initiates-litigation/ that says you can't do a motion to compel arbitration until non-movant initiates litigation. Does litigation in essence start once I file my answer to court? and then am I the movant if I make the MTC? I know, I'm not the best with all of this but see I am attempting research (the amount of bookmarks I have on my computer with court cases etc is truly pathetic.

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32 minutes ago, Brotherskeeper said:
 

I'm certain this is true for those defendants with counsel and pro ses with the fortitude and acquired skills to mount a winning defense. Here, terrified OP Shelly is hoping never to set foot in court. 

this is valid, I'd sell my soul to the devil himself if it meant I didn't have to go to court @Brotherskeeper I rather go to the gynecologist everyday for the rest of my life then go to court once it terrifies me so. I don't even know what OP means lol poor moi

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21 minutes ago, usctrojanalum said:

You can post your answer, just be mindful not to post anything that is identifiable. 

The most succinct answer will have numbered paragraphs that correspond to the plaintiff's numbered paragraphs.

A discovery request is in a separate document, and in NY practice you have the option to do that with your answer or do it later. Probably just best to do it later. No need to overwhelm yourself with that right now. 

 

thank you again @usctrojanalum when I post my answers can you make demands like 

Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof. 

(as in I'm saying yo I deny that you own my account and you need to show proof) or do you just deny?

Sorry again am trying to get this stuff right!

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3 minutes ago, SHELLY7 said:

this is valid, I'd sell my soul to the devil himself if it meant I didn't have to go to court

Usctrojanalum is the expert here, not me. S/he said that a properly drafted answer followed by targeted discovery requests  may result in the suit being dropped or settlement offered to avoid court. This forum's preference for MTC arb is due to this strategy's success over remaining in increasingly difficult to win courts. It appears NY is more consumer-friendly than other states. It gives you something to think about. 

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I'm not advocating one position or another. I think both have merit. I just want to put out as much information as possible so that Shelly can make an informed decision about which path to take. One thing that is certain, the decision does not need to be made at this very moment.

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yes that is what I am hoping @usctrojanalum @Brotherskeeper that my answers to court with the summons and complaint shows I know what's up (or rather a forum of people I've stalked and harassed do) and then they drop it. My understanding is I file my answer to the court, then they have to pay $95 to RJI (so it's no longer in pre-rji I guess) then if and when they do that I can file my motion to arbitrate for $45 if that's the route I decide to go.

Correct @usctrojanalum?

and once I file my answers to court how long do they have to file the $95 etc? This whole waiting game is half the battle. Also, they did this to me once before same firm same case same everything and I didn't even know about it because I was never served, but found it online in my crazy searching and they voluntarily dismissed evidently. Though, doubt that would happen this time since homie was here with the papers Sat.

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