SHELLY7

Midland Funding Suing In NY

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I feel like in life @usctrojanalum I am the rare exception in everything lol. there is a notary literally down the street from me, would you bother to better be "safe then sorry"? or am I really just over reaching the mark here? I assumed per all my research that you'd have to have your debt original cc notarized, (for etc arb) but are there a ton more pleadings I would need to worry about verifying(notarizing)? if not too hard perhaps hedge on better safe then sorry? and last confusion, if you add that verification is it an affidavit or do you just tack it on to the end of your answer?

sorry I really am dumb with the law stuff

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So the verification itself is an affidavit, but that not necessary mean it needs its own page. You can just put it on the bottom of the answer.

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mmmm this makes me think I should just not do it? seems like everything I can somehow get myself in trouble with? and couldn't that be considering entering into judicial if I go for a mtc arb? sorry @usctrojanalum I seem to always go in circles

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am answering my own question here, just in case in the future someone from NY is running in circles like myself and say they didn't verify so I won't. and thanks to @Brotherskeeper for posting the helpful link if you want to verify and @usctrojanalum who deserves a medal of honor for his patience with me

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Hi Guys!

I have been working on my draft for MTC (yes it has taken me this long) and have been looking for similar cases/NY laws etc. so that I might just better understand and "be ready." I have always thought when the time came I would make my motion under NY Law demand to arbitrate 7503 a I'm aggrieved so will follow my synchrony card agreement notify them" in writing" with a quick one liner-that I elect arbitration in Jams" easy peasy or as @fisthardcheese try to somewhat "keep it simple." This is the arb application law for NY I am referencing :

(a) Application to compel arbitration; stay of action. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

However, @usctrojanalum was kind enough to share with me, being the resident NY genius and otherwise known to me as most patient man on earth. You may also make a demand on them by serving a demand letter for arbitration under 7503c this is what I am referencing:

(c) Notice of intention to arbitrate. A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. Notice of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Service of the application may be made upon the adverse party, or upon his attorney if the attorney's name appears on the demand for arbitration or the notice of intention to arbitrate. Service of the application by mail shall be timely if such application is posted within the prescribed period. Any provision in an arbitration agreement or arbitration rules which waives the right to apply for a stay of arbitration is hereby declared null and void.

My novice interpretation of 7503 c is that if you serve the demand letter in the correct format as listed above, if they do not apply to stay the arbitration within 20 days they shall be precluded from objecting in court.

So am I correct in thinking that if I form this letter to the T following the above format it really pushes them in a corner? Or am I misreading and interpreting (Which we all know could be the case) I am also wondering if anyone has any experience with this, I've searched the forum but haven't found many references and perhaps just doing the simpler 7503 a is easier and this is really beyond my breadth as I get so hung up on counting days and making sure everything is right. If anyone who is a forum expert and has seen a reference to this or has any opinion on it, even just a general thought it would be greatly appreciated.  I understand that I get quite caught up in the little things, so even just a blanket statement of what you think the better approach is. I so appreciate all the people who have taken the time from the beginning to help me on what has been seemingly a rather long journey, especially considering I haven't even made a motion yet. So many thanks as always those whose patience and opinion has gone beyond the common grounds of good will @Brotherskeeper @BV80 @Goody_Ouchless @nobk4me  @Harry Seaward and @Clydesmom and the ever stead fast @usctrojanalum

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You have to do 7503(a) no matter what if going the arbitration route. That's simply making a motion, the motion process itself is more or less pretty basic even if the argument can be complex. That's not that bad. However, if you also follow (c); when you make the motion creditor can't say arbitration agreement is invalid. Which is pretty nice to have in your pocket.

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ahhhh I thought you had to do a or c so even that clarifies A LOT lol @usctrojanalum thanks so much I've only found cases where they did a and then some other motion to dismiss or stay, but just with a so I'll look for both

do you know anywhere I can find demand letter that uses c? I'll look up court cases on the NY site 

Thanks again

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CPLR § 7503(c) Notice of intention to arbitrate. A party may serve upon another party

1.)  a demand for arbitration or a notice of intention to arbitrate, (Pick one.)

2.)  specifying the agreement pursuant to which arbitration is sought and (PAYPAL EXTRAS MASTERCARD ACCOUNT AGREEMENT or whatever its proper title is)

3.)  the name and address of the party serving the notice, and (include your name and address)

4.)  stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

(Include this statement:  "Unless Midland applies to stay the arbitration within twenty days after service of this notice of my intention to arbitrate these disputes, Midland shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.")

5.) Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. (Send this letter CMRRR.) 

 

Because Midland claims it is now the owner of the subject PayPal account through assignment/purchase from Synchrony, you must send this written arbitration demand/notice to Midland via Midland's attorney and choose either AAA or JAMS:

"• 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.,

• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding." 

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1 hour ago, SHELLY7 said:

should I just paste in the body of the email my arb clause or should I send the original synchrony agreement as an attachment with the letter?

IMO--Neither. IANAL. As I read the requirements for CPLR § 7503(c), you are only required to "specify[ing] the agreement pursuant to which arbitration is sought." (Merriam-Webster: "Specify definition is - to name or state explicitly or in detail.") If you interpret specifying to mean naming explicitly the proper title of the agreement under which you seek arbitration, then no actual copy of the agreement is required to be included. When CPLR § 7503(c) was drafted, the drafters certainly could have included language requiring the agreement or its pertinent parts be attached.

If Midland as assignee seeks to enforce its rights and duties under the terms of the Synchrony PayPal agreement, it should have a copy of the applicable contract within its custody and control, or ask Synchrony for it. 

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ok, so I'll just paste it in and not make it easy for them.

somewhere I read you put in the address of original-do you think I should put in midlands address in San Diego, or just midland? I know always hung up on the little stuff

am drafting now to post

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23 minutes ago, SHELLY7 said:

do you think I should put in midlands address in San Diego,

No. All correspondence to plaintiff regarding this lawsuit must be sent to plaintiff via the attorney of record. 

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Hi Guys! Here is my draft for intention to arbitrate, let me know thoughts.

Also, would you include my synchrony care card agreement or just paste in what I have and assume per @Brotherskeeper that they obviously have a copy

Secondly, @usctrojanalum when you have a second can you make sure it has the correct format for Notice of Intention to Arbitrate under CPLR (c) and on that note, should I actually in fact mention that? or no? 

Thank you again to everyone for their time and endless patience, I tried to blur out my personal information, but wanted to post on the forum, not only for everyone to weigh in but also in case some other poor soul finds themselves in my predicament and this NY stuff will help them.

Thanks so much everyone and I will wait patiently for your critiques;)

scan1.pdf scan2.pdf

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OK HERE IT IS PASTED, IN CASE EASIER TO LOOK AT, FAILED TERRIBLY AT TRYING TO TAKE OUT THE PERSONAL STUFF BUT THIS IS THE GIST OF THE LETTER:

 

, Defendant

 

 

March 21, 2019

 

Midland Funding, LLC

 

ESQ Attorney for Plaintiff, Midland Funding LLC

Cc: , ESQ

 

 

RE: Supreme Court of the State of New York County of Suffolk Court Case Index NO:  Consumer Credit Transaction

 

NOTICE OF INTENTION TO ARBITRATE CLAIMS

 

Dear Midland Funding LLC:

 

This is to notify you of my intention to arbitrate the claims and disputes of the subject account pursuant to the applicable Synchrony Bank Pay Pal Smart Connect branded account agreement.  As per this agreement’s arbitration section, I demand arbitration.  The clause states:

 

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. 

AND

 

2.    The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. 

 

As per this agreement’s arbitration section, I select JAMS as the arbitration administrator.

Unless Midland applies to stay the arbitration within twenty days after service of this notice of my intention to arbitrate these disputes, Midland shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

Sincerely,

 

 

Defendant, Pro Se

 

Sent USPS Certified Mail, Return Receipt Requested

 

 Let me know guys if you think I should include the credit card agreement or as @Brotherskeeper suggested just pasting it in is enough and @usctrojanalum must I site cplr 7503 (c) or is that just to be assumed and do you think this has everything required for cplr 7503 c? Whenever you have time, have just been on the hustle as like the notion of getting them by surprise and sending this off. Thanks again so so much to everyone for their help, honestly I just don't know what I'd do without you. 

 

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IANAL. I don't see any need to quote the PayPal arb section language you've included. You've satisfied the CPLR § 7503(c) rule requirement of specifying the Synchrony Bank Pay Pal Smart Connect branded account agreement. I see no need to cite the CPLR § 7503(c) rule. The attorney should be aware of the rules that govern NY arbitration--as you are even as a pro se. You've included the 7503(c) required language notifying plaintiff of its 20 day clock to motion for a stay of arbitration or be precluded from objection. I would include the USPS CMRRR number in the letter, if possible. 

 

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I thought you didn't get the number on your registered mail until you get the receipt or I guess maybe they give you that green tag in which case I could just write it out at the post office? lol 

Ill leave a blank space so that I can write it in just in case 

I've seen cases where they said they didn't know the clause referenced as a defense, that's why I thought pasting it in might make it more "sure fire" but perhaps if I just reference it that's enough? I'll wait to see what resident NY genius weighs in @usctrojanalum but I don't think it could HURT to paste the arb clause, no?

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update thanks @brotherskeeper I see I add in the index number on certified mail receipt at the post office so will include this for extra iron cladness;)

heres an update in case any future New Yorkers get hung up on the small things like moi and can use this thread to the best of their advantage;)

Defendant, Pro Se

 

Sent USPS Certified Mail, Return Receipt Requested #

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On 3/21/2019 at 2:07 PM, SHELLY7 said:

I don't think it could HURT to paste the arb clause, no?

Neither the 7503(c) rule nor the Agreement's arb section require you to include/quote the arb clause to satisfy the requirements. 

 

On 3/21/2019 at 1:26 PM, SHELLY7 said:

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.

??

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ok update to @Brotherskeeper you are correct in the reading of the law it states that it just mentions that it must merely "specify the agreement" so I think you are correct that I don't need to put in the arb clause from paypal

now the body of the letter shall just read as:

This is to notify you of my intention to arbitrate the claims and disputes of the subject account pursuant to the applicable Synchrony Bank Pay Pal Smart Connect branded account agreement.  As per this agreement’s arbitration section,I select JAMS as the arbitration administrator.

Unless Midland applies to stay the arbitration within twenty days after service of this notice of my intention to arbitrate these disputes, Midland shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

I think that should be enough to satisfy the requirements of CPLR 7503 (C) and will send off to post office today once @usctrojanalum has given his stamp of approval

Thanks again everyone for their time and patience especially @Brotherskeeper and @usctrojanalum since drafting a letter should never be that hard, but evidently for me it is;)

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On 3/21/2019 at 2:07 PM, SHELLY7 said:

I thought you didn't get the number on your registered mail until you get the receipt or I guess maybe they give you that green tag in which case I could just write it out at the post office?

We sometimes skip over the fundamentals that are probably buried from years ago in another section of the forums, but when you are dealing with legal matters and will have to be sending a few registered letters, it's a good idea to grab a handful of both the green registered stickers in addition to the green return receipt cards from your post office.  Most have them readily available before getting up to the counter.  Take several home so that you can not only fill them out prior to going to the post office, but also as suggested, include the Registered USPS number as part of your letter head within your letters.  Also, it is important to save a scanned copy after you printed and signed the letters that you are sending.  Saving a copy of the signed letter before putting it into the envelope is also proof of WHAT you sent in addition to WHEN you sent it with the registered receipt.

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yep! @fisthardcheese done and dusted. Treated it like it was FBI evidence, for all the "just in case" scenarios;) Thanks to everyone for their help and unrelenting patience with me.

Though in all honesty, I DO wish I had gotten this wondrous advice of picking up those little registered tags BEFORE going to the post office as trying to fill out and take photos with a line of people behind me was much more flustering then my adult self would care to admit;)

So much gratitude though beyond measure to everyone.

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