SHELLY7

Midland Funding Suing In NY

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5 hours ago, fisthardcheese said:

Not to beat a dead horse, but I am still trying to wrap my head around this one for clarity.  All of the granted MTCs from people on this board using our suggestions and methods have NEVER had anything spelled out in the Judge's order about what happens if either party does not participate in arbitration.  However, many times we have suggested that when a JDB fails to follow, that a motion to sanction is filed.  Of the few times members here have done so, (if I recall correctly) there has always been a quick settlement to follow, so there has yet to be a hearing on the sanction motion.  Are you saying that in each of those instances, had it gone to a hearing that the judge could simply say "there was no authority in the order to remedy disobeying said order so motion denied"?

It's not an easy legal concept to grasp. The court can direct the parties to arbitrate, but it has no power other than to dismiss a case if Midland refuses. The Court doesn't have the power to make Midland pay a fee of $1,250 if it doesn't want to. That would be akin to indentured servitude the Court doesn't have that power. I was contemplating the remedy in the case that OP paid the $250 portion of the fee and Midland did nothing. In that instance I would make a motion to reopen the case, and as a sanction, request reimbursement of the $250 paid. But that would be it. 

If the situation was one where a Court ordered Midland to arbitrate AND initiate, and Midland did not initiate, would be tough for a judge to issue a sanction on that. 

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1 hour ago, SJULawAlum said:

It's not an easy legal concept to grasp. The court can direct the parties to arbitrate, but it has no power other than to dismiss a case if Midland refuses. The Court doesn't have the power to make Midland pay a fee of $1,250 if it doesn't want to. That would be akin to indentured servitude the Court doesn't have that power. I was contemplating the remedy in the case that OP paid the $250 portion of the fee and Midland did nothing. In that instance I would make a motion to reopen the case, and as a sanction, request reimbursement of the $250 paid. But that would be it. 

If the situation was one where a Court ordered Midland to arbitrate AND initiate, and Midland did not initiate, would be tough for a judge to issue a sanction on that. 

Okay, so I agree the court can not force Midland to pay up, and my usual suggestion is to ask for a dismissal with prejudice as part of the sanction motion (and ask for any costs including arb fees paid).  To me, that is what we would usually want, we don't actually want the court to force midland to pay for arbitration anyway.  So I think we are on the same page here.  Perhaps in my lay terms I use "sanction" where the remedy is a motion to dismiss instead.  If there is a significant distinction perhaps I should revisit how I explain this step, but maybe a judge should know what the Pro-Se Defendant is asking for especially if a dismissal is specifically asked for in the sanction motion?

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19 hours ago, fisthardcheese said:

If there is a significant distinction perhaps I should revisit how I explain this step, but maybe a judge should know what the Pro-Se Defendant is asking for especially if a dismissal is specifically asked for in the sanction motion?

Perhaps this is a very dumb question, but is there any option when the motion is titled "MTCA and Dismiss, or in the Alternative, Stay Proceedings Pending Arbitration" and the Stay part is granted? Is there anything you can go back to court with? Just spitballing here. 

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On 9/27/2019 at 7:38 AM, SJULawAlum said:

The court has to provide the remedy, and here, unfortunately it didn't. 

 

23 hours ago, SJULawAlum said:

It's not an easy legal concept to grasp. The court can direct the parties to arbitrate, but it has no power other than to dismiss a case if Midland refuses.

When there is a predetermined remedy or sanction for the failure to comply with a court order to arbitrate, it is usually limited to dismissal of the action or the dissolution of any stay.

Which one of these is prescribed is often dependent on which party moved to compel and on which party the court placed the burden to initiate.  This is far more common in federal court.  It is much less common in state courts, although it did happen in Bentrud.

A predetermined remedy is what helped sink Bentrud's ship;

Quote

The state court granted Bentrud’s election of arbitration ... It also stayed the case, allowing Bentrud thirty days to initiate arbitration. If, however, Bentrud failed to initiate arbitration within that window, the court ordered the stay “automatically dissolved.”

That was a prescient order, because a curveball quickly emerged: no one agreed to do the arbitration. The American Arbitration Association (“AAA”) declined because Capital One had previously failed to comply with its policy regarding consumer claims.

If anything, Bentrud’s real gripe lay with the state court for setting a deadline to arbitrate. That initial thirty-day deadline set these wheels in motion. Without it, there would be no incentive to press forward with the case after efforts to arbitrate stalled and the deadline lapsed. Tellingly, however, Bentrud did not complain of the deadline when it was first imposed. Nor did he file a motion seeking clarification of the state court order setting the deadline.

Bentrud filed with AAA, AAA initially declined to take the arbitration.  The thirty days elapsed and the stay dissolved and then Capital One filed another summary judgment motion.  Eventually the court extended the time for Bentrud to initiate.

Bentrud probably would have been much better off without any predetermined remedy.  Even though it was hardly his fault that Capital One was not in compliance with the AAA.

Starting next year, courts in California will have more power to enforce remedies and sanctions.

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Last update. I must be careful with what I disclose because there is an NDA in place, but the NDA solely relates to settlement terms. We did not get the closing/settlement papers back before the October 15 deadline set forth in the judges order. Shelly, being ever diligent, knew not to mess around and filed her arbitration on deadline day.

JAMS later emails everyone saying a case has been opened.

The very next day, Creditor's attorneys send an email to JAMS saying the parties have agreed to a mutual release and have settled the matter.

JAMS says, in sum and substance, yeah that's great but the filing fee is still due once a case is opened. LOL. Shells of course immediately paid her portion, but I got 3 phone calls from creditor law firm basically saying what the heck.  

LASTLY - I have told two clinics about the outcome in this case and gave them redacted copies of the pleadings for their use. Both clinics have thanked me and said that this is a very clever strategy to use. So hopefully the word spreads on this and more consumers can use this rather than automatically being dismissed by volunteer attorneys and law students. I know that was a problem for some people who have used NY's CLARO program before. 

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34 minutes ago, SJULawAlum said:

LASTLY - I have told two clinics about the outcome in this case and gave them redacted copies of the pleadings for their use. Both clinics have thanked me and said that this is a very clever strategy to use. So hopefully the word spreads on this and more consumers can use this rather than automatically being dismissed by volunteer attorneys and law students. I know that was a problem for some people who have used NY's CLARO program before. 

@SJULawAlum Thank you for all you've done and are doing to help others. You've gone above and beyond with Shelly7. I'm so pleased at the outcome you both worked very hard to secure--some of it against some apparent bad faith from opposing counsel. 

I'm not ashamed to admit the Schadenfreude over Selip getting the JAMS invoice is sublime. Hoisted with his own petard. 

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Would just like to chime in here, and not break the law by disclosing anything and this more pertains to JAMS. Before people weigh in and state I could have asked JDB to pay my JAMS fee, as that would have been an option considering the synchrony arb agreement, I had put money aside in the case of paying my JAMS filing fee and paid because A. the judge's ruling in my particular case was a bit finicky and B. had it NOT been for JAMS emailing both parties and their representatives I am not sure I would have ever received the outcome I had been looking for. So in some crucial way JAMS does have a very vital role in this and thus, was happy to pay for JAMS was sort of the push I needed. For future people this is the JAMS "cancellation policy" and perhaps this has been invoked due to so many people using this forum, I don't know lol;)

Please note that the filing fee for this matter is still due. If a matter is withdrawn within five days, the refund is $600. Therefore, the current outstanding balance for the filing fee is $250 on behalf of the Claimant and $350 on behalf of Respondent per Consumer Minimum Standards policy.

Just so people are aware, and truly this was the smoking gun so to speak so bless JAMS on some level.

Lastly my final question is and prob goes to experts out here as far as removing debt trade line, is there a certain time frame everyone suggests, ie wait ninety days then send a letter to credit bureaus, or can it be as soon as a month? and do you all suggest including signed paperwork? or simply stating I "am no longer liable for this debt" and keep it simple Sam...?

And once again hugest shout out to @SJULawAlum seriously anyone in NY he's an actual encyclopedia on NY law, amazing attorney, as well as person and STILL can't believe I was lucky enough to find him...

And of course can't reiterate enough my continued gratitude forever to those that have been with me on this journey since the beginning of this year...not only was the forum a beyond useful source and fountain of information during an insanely stressful time, I TRULY don't think I could have made it out alive without any of you... @Brotherskeeper @fisthardcheese

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1 hour ago, Brotherskeeper said:

I'm not ashamed to admit the Schadenfreude over Selip getting the JAMS invoice is sublime. Hoisted with his own petard. 

My response was "look, in the grand scheme of things, this is only a speeding ticket." He laughed out loud and the phone call ended shortly thereafter. 

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15 hours ago, SHELLY7 said:

astly my final question is and prob goes to experts out here as far as removing debt trade line, is there a certain time frame everyone suggests, ie wait ninety days then send a letter to credit bureaus, or can it be as soon as a month? and do you all suggest including signed paperwork? or simply stating I "am no longer liable for this debt" and keep it simple Sam...?

In my past experience doing this, I wait 30 days and then I send a simple dispute letter to the CRAs stating "I am not liable for this account". Especially since it is a settlement agreement and subject to an NDA (had it been a single page order from a judge dismissing the case with prejudice, for instance, I would send a copy of that page).  The theory here is that the 30 days should be plenty of time for the JDB to know and enter into their system that this account case is settled and forever discharged (or however it may be worded). If anything other than a removal comes back from the CRAs (meaning the JDB verified at least a portion of the account) then my opinion is that you then have a willful FCRA violation and possibly a violation of the settlement contract depending on that language as well.

In my experience, they have all been deleted upon using this method, HOWEVER, Midland did something else in my case, after I beat them with prejudice in court, and after the CRAs removed the tradeline from them on my dispute and proof of dismissal with prejudice, Midland was still doing an automated "account review" pull of my credit reports every 60 days like clock work.  This was turned into a new FCRA suit against them and the NDA for that settlement says that I can only tell you that I was VERY satisfied with the outcome. :)  So other than removal, the regular inquiries is also something to keep an eye on for the next few months to a year.

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Thank you so much for this @fisthardcheese you really are the wise one and I always appreciate you spelling things out in layman's terms for little novice me. Tried to look through forum and get a concise idea, but seems everyone has a different theory, ie ninety days with some, send in agreement etc and I prefer less is more (which I've also learned from you;) Furthermore, as friends on here have helped me with I'm not great at reading my credit report (is kind of pathetic that I'm just learning all this as an adult;) and on some they still have the original PayPal account open; (I know they can still report but on one says open and revolving) sigh. I know this is legal for them to keep reporting (OC), but was confused about Midland so will wait my thirty days and then send off a standard letter with your "no longer liable for this account." I was also one of the lucky ones whose account fell into that Capital One security breach so they (capital one) offered me some free credit watch for a year so will do this and that will hopefully help me monitor better, in case, heaven's forbid Midland does that "account review 60 day thing" ugh which I HOPE doesn't happen to me, but you never know...you on the other hand, have such tenacity at sticking to your guns and always making this work in your advantage, no doubt they must fear you by now in the best of ways;) I applaud you once again and thank you for continued patience with answering my what must be to you, very elementary questions;)

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Quick update on this fine Sunday...JAMS officially closed case Friday, so is great news and a bit of a wondrous thing to think of the money the JDB and their lovely lawyers put out. A rather redundant, yet required never the less shout to @SJULawAlumwho is truly a NY genius and attorney.

My "hopefully" (without jinxing) task in closing this out would be to send as you stated @fisthardcheese sending a simple letter to the cra's stating no longer liable...then keeping an eye out for "automated account review" I'm wondering if the idea here in this rather old post is suitable for such letter with the verbiage of no longer liable? or if you indeed go into this level of detail, with photo id (30 days etc)

No rush on answering, as I know I have beyond abused the wealth of knowledge on this forum with my rather simplistic questions...will just be happy to have this "final step" done in next month or so. Once again so much appreciation everyone!

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8 hours ago, SHELLY7 said:

Quick update on this fine Sunday...JAMS officially closed case Friday, so is great news and a bit of a wondrous thing to think of the money the JDB and their lovely lawyers put out. A rather redundant, yet required never the less shout to @SJULawAlumwho is truly a NY genius and attorney.

My "hopefully" (without jinxing) task in closing this out would be to send as you stated @fisthardcheese sending a simple letter to the cra's stating no longer liable...then keeping an eye out for "automated account review" I'm wondering if the idea here in this rather old post is suitable for such letter with the verbiage of no longer liable? or if you indeed go into this level of detail, with photo id (30 days etc)

No rush on answering, as I know I have beyond abused the wealth of knowledge on this forum with my rather simplistic questions...will just be happy to have this "final step" done in next month or so. Once again so much appreciation everyone!

I personally detest all of these sample letters.  My letter will identify the tradeline by name and account number as it appears on my report and then I will literally say "I am not liable for this account".  Thats it.

Yes, I always send a copy of my ID amd most recent utility bill to verify my current address. If not they will just ask for it anyway before proceeding and I just like to avoid the delay.

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