SHELLY7

Midland Funding Suing In NY

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@SJULawAlum @fisthardcheese What, if any, leverage does Plaintiff have at this point--if they don't want to pay and go to JAMS? They've sued twice on the same debt. They discontinued the first suit with a (voluntary) dismissal without prejudice. Had their 2nd suit dismissed without prejudice, after having their MSJ denied in all respects, and Shelly7's MTCA granted. 

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Surely the cost of arb will help as leverage @Brotherskeeper however they weren’t ordered into arb (don’t think we’d remind them of this and hope no spies are reading this forum/thread lol;) perhaps some sort of sanction or such as @fisthardcheese suggested for no more third time suing but I don’t even know? To be perfectly honest I’m not even sure how much THEY know of the exact language of the court order or if they dive as deeply as we all do. I’ve had five different people on this case alone from same jdb (not counting first one) they might be just going off what my lawyer smartly warned them/told them how much money arb would cost their client? or the synchrony arb agreement that maybe they DO know of, I dunno. Not sure really 🤷‍♀️Hope I have leverage with a good negotiator 🤷‍♀️ @SJULawAlum 🤞🤞THAT much I am CERTAIN of) 🍀🤞

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On 9/17/2019 at 5:36 PM, SHELLY7 said:

“After due deliberation, it is Ordered that plaintiff’s motion for summary judgment is denied in all respects. Defendant’s cross-motion to dismiss and compel arbitration is granted to the extent that the parties are directed to proceed to arbitration and the complaint is dismissed without prejudice. Defendant is directed to commence the arbitration proceeding per the cardholder agreement. If defendant fails to do so on or before October 15, 2019, plaintiff may move to restore this case to the court’s calendar and may renew its motion for summary judgment on the merits of the claim.”

The judge's Order directs both parties to proceed to arbitration. Defendant is directed to commence arb by 10/15. If defendant fails to do so by 10/15, plaintiff may move to restore the dismissed case and may renew its MSJ. 

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3 minutes ago, Brotherskeeper said:

The judge's Order directs both parties to proceed to arbitration. Defendant is directed to commence arb by 10/15. If defendant fails to do so by 10/15, plaintiff may move to restore the dismissed case and may renew its MSJ. 

my hope (don't want to jinx) is they don't read too deeply into this wording and just go off of "parties ordered" and what my lawyer smartly reminded them of the cost for their client. I suppose that's the only thing I can hope for?

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3 minutes ago, SHELLY7 said:

my hope (don't want to jinx) is they don't read too deeply into this wording and just go off of "parties ordered" and what my lawyer smartly reminded them of the cost for their client. I suppose that's the only thing I can hope for?

Just commence arbitration as instructed by the order.  

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28 minutes ago, Brotherskeeper said:

@SJULawAlum @fisthardcheese What, if any, leverage does Plaintiff have at this point--if they don't want to pay and go to JAMS? They've sued twice on the same debt. They discontinued the first suit with a (voluntary) dismissal without prejudice. Had their 2nd suit dismissed without prejudice, after having their MSJ denied in all respects, and Shelly7's MTCA granted. 

Going to have to pay the $250 either way. It's either going to JAMS or it is going to Midland. So, in effect, it really makes no difference where the $250 goes. If you settle with Midland directly you can negotiate for what you want and have finality.

The amazing thing about the $250 offer. Is just in court fees alone, midland has spent $45 + $210 + $95 + $45 and that doesn't include process server fees which are likely around $35. So they've like spent around $450 in fees alone and are willing to settle it for a loss. I mean that is pretty funny. 

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15 minutes ago, SJULawAlum said:

Going to have to pay the $250 either way. It's either going to JAMS or it is going to Midland. So, in effect, it really makes no difference where the $250 goes. If you settle with Midland directly you can negotiate for what you want and have finality.

If the $250 goes to Midland instead of JAMS, is that an admission/liability for the debt? Does Midland get to report to the CRAs that the debt was settled for less than the full amount? Will Shelly7 get a 1099-C for the forgiven amount?

If the $250 goes to JAMS, and Midland refuses to pay its filing fees and the JAMS case is dropped, what is the downside for Shelly7? 

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14 minutes ago, Brotherskeeper said:

If the $250 goes to Midland instead of JAMS, is that an admission/liability for the debt? Does Midland get to report to the CRAs that the debt was settled for less than the full amount? Will Shelly7 get a 1099-C for the forgiven amount?

If the $250 goes to JAMS, and Midland refuses to pay its filing fees and the JAMS case is dropped, what is the downside for Shelly7? 

Well the downside is a lack of finality. There is no contingency in the Court's order for what happens if Shelly pays arb and Midland doesn't go. 

Is it an admission? It can be negotiated that it's not. 

As far as the CRA's, going to arb vs not going wouldn't have any affect. It can still be reported in either scenario. But we could negotiate for an NDA which would take care of the the CRA issue. 

I am not sure if a 1099-C will be issued. That is a risk, but: (i) any tax would be negligible as the debt is 3k not 30k; (ii) even if a 1099-C is issued, might be entitled to an exception under the IRC. But personal income tax is a little outside my area and I would defer to an accountant on that. 

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20 minutes ago, Brotherskeeper said:

If the $250 goes to Midland instead of JAMS, is that an admission/liability for the debt? Does Midland get to report to the CRAs that the debt was settled for less than the full amount? Will Shelly7 get a 1099-C for the forgiven amount?

If the $250 goes to JAMS, and Midland refuses to pay its filing fees and the JAMS case is dropped, what is the downside for Shelly7? 

If the OP pays the arbitration filing fee, she has obeyed the court order.  If Midland doesn’t pay its share, it has defied the court order.  Usually, a refusal to obey a court order can result in sanctions to that party.   The sanction could be a dismissal of the lawsuit with prejudice.

Perhaps @SJULawAlum knows if the OP could motion for sanctions if Midland refuses to arbitrate as ordered by the court.  

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The problem is the court order is drafted poorly. Not providing a "what happens" in the event Midland doesn't go to arb is poor drafting. The Court can't force Midland to go to arb and pay a $1,250 fee if Midland doesn't want to do that. It can provide a legal consequence like it did for Shelly, but the Court can't force Shelly to pay $250 for arb either. 

For example, the order could have provided "if Shelly initiates arbitration and Midland declines to participate, the matter is deemed dismissed with prejudice."

 

 

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On 9/25/2019 at 4:06 PM, SJULawAlum said:

Well the downside is a lack of finality. There is no contingency in the Court's order for what happens if Shelly pays arb and Midland doesn't go.

Why not counter for no money and a mutual release of all liability?  If they counter or refuse, then come back with $250 but ALSO no admission and a mutual release.

The settlement agreement with a mutual release language is great as it shows there is no liability for the debt and therefore, no 1099 and no future credit reporting.

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On 9/25/2019 at 4:41 PM, SJULawAlum said:

The problem is the court order is drafted poorly. Not providing a "what happens" in the event Midland doesn't go to arb is poor drafting. The Court can't force Midland to go to arb and pay a $1,250 fee if Midland doesn't want to do that. It can provide a legal consequence like it did for Shelly, but the Court can't force Shelly to pay $250 for arb either. 

For example, the order could have provided "if Shelly initiates arbitration and Midland declines to participate, the matter is deemed dismissed with prejudice."

 

 

I can't believe there is no remedy for a party that does not follow a court's order.  The court clearly ordered both parties to arbitrate.  If one fails to do that, there must be a way to raise this to the court's attention.

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11 hours ago, fisthardcheese said:

I can't believe there is no remedy for a party that does not follow a court's order.  The court clearly ordered both parties to arbitrate.  If one fails to do that, there must be a way to raise this to the court's attention.

The court has to provide the remedy, and here, unfortunately it didn't. And to bring it back to the Court's attention would require paying $250 to Jams and another $45 to the court in a filing fee. 

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Question geniuses on this whole reporting thing to the CRA (I legit can barely understand how to read them but that's whole other thing sigh..) and not jinxing again (yes am a superstitious loon)...but, as still in just beginning phases of all this and who knows how lucky we will be...but as far as reporting to the cra goes, if you somehow manage to finagle them not to report ie mutual release or what @SJULawAlum mentioned before with them signing an nda and then I assume I'd have to send something into each credit bureau if they did keep reporting me in the future...if they stop reporting in the future by whatever means, is that the same as a debt trade line deletion credit score wise or no?

Sorry I know I am long-winded and thank you everyone who has so studiously offered endless insight/suggestions etc 🙏🤞☘️ @fisthardcheese

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2 hours ago, SHELLY7 said:

but as far as reporting to the cra goes, if you somehow manage to finagle them not to report ie mutual release or what @SJULawAlum mentioned before with them signing an nda and then I assume I'd have to send something into each credit bureau if they did keep reporting me in the future...if they stop reporting in the future by whatever means, is that the same as a debt trade line deletion credit score wise or no?

If they continue to report after 90 days you would need to send the 3 agencies the settlement letter.

If they stop reporting, yes the trade line from Midland would be deleted but not the charge off of Synchrony

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Thanks for letting me know. But again this is all in infancy stage and easily nothing could happen and I’ll be back sending in jams/arb before you know it:)  🤞🍀🤞🍀 never the less as always appreciate everyone’s support and advice beyond🙏

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12 hours ago, SJULawAlum said:

The court has to provide the remedy, and here, unfortunately it didn't. And to bring it back to the Court's attention would require paying $250 to Jams and another $45 to the court in a filing fee. 

Yes, I understand that, but wouldn't filing a Motion for Sanctions or something similar to show the court that they are not following the previous order to arbitrate lead to a settlement?  Or perhaps even sending a draft unfiled copy of the motion for a settlement talk which could include paying back the $250 cost?

11 hours ago, SHELLY7 said:

I assume I'd have to send something into each credit bureau if they did keep reporting me in the future...if they stop reporting in the future by whatever means, is that the same as a debt trade line deletion credit score wise or no?

This is too far ahead because it will all depend on how your case ends.  If it ends with a settlement or some other way that shows you are no longer liable for this account, then you simply wait 30 days and send in a dispute to the CRAs saying that you are no liable for this account.  The CRA will send their standard verification notice to the JDB, but the JDB will be unable to verify that you are liable or that the debt is owed or correct due to the settlement.  When they can't or don't verify it, the CRAs will have to delete.

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Hi everyone! Quick update on the happenings over here. My lawyer finally got a hold of the attorney from Midland who offered the 250 instead of filing arb. He was transferred to ANOTHER attorney (apparently his supervisor or such I have no clue how they have so many people over there; but ANY WAYS....)

This new attorney has now stated that the offer is 500 because Midland laid out a lot of court expenses with my case. Ugh. Seemingly unethical to me that they could revoke, but evidently is allowed and obviously wasn't going to take ANY offer until I read the fine print etc.

Now, we are waiting to see the offer and am assuming I will still have to file ARB/JAMS, though again just don't have a ton of leverage with odd wording of court order. So that is the update as of now, can't say I'm hugely surprised and in essence am basically just back where I started sort of...just a bit frustrated. Stay tuned and thanks again to everyone's continued advice, support and insight. @fisthardcheese @SJULawAlum @Brotherskeeper

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IANAL. The way I view this is they either take $250 or you give it to JAMS and they get $0. You are required by the judge's order to commence arb by 10/15. They can pay their share of the JAMS filing fee, and the fee for the arbitrator, and for the hearing, all to make their case that you owe them their court costs. ::laugh::

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I feel like they are bluffing.  This is Midland.  They have yet to arbitrate one consumer case to completion.  To me, THAT is your leverage.  Obviously, you must do what you are comfortable with, but if this were me, the minute they changed the terms of the settlement, I would have responded with a copy of my JAMS filing.  When they want to play games, I always respond with my arbitration filing.  I am confident that once you file, their offers to settle will be much more favorable and I would accept nothing less than $0 (but I would push for $250 paid back to me at that point).  Again, this is just my lay opinion, but it is how I have dealt with JDBs in the past.

My personal, non attorney opinion, also is that your court's order is NOT that vague or problematic.  When it comes down to it, the fact is that there is a court order to arbitrate and Midland can't violate that order without having consequences.

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thanks for this @fisthardcheese undoubtedly from your tutelage this is EXACTLY what I did on Thursday. Mailed everything, sent JAMS off etc (no money just the filing) (can pay later I have learned wink wink;). Part in a rage and part because obviously I've been ordered too and at this point with these lawyers I don't even know if they are stalling to slow my end of the bargain down so to speak. 

Needless to say once they heard I did this there was some "action" but of course, they haven't sent anything yet through to my attorney (they should have Friday but was crickets no doubt.) So am waiting for Monday when all the mail arrives and they will see I'm not bluffing. Will go from there I guess. Still a bit of a waiting game, a dubious one at best; but I have my guard up, an excellent genius of an attorney and all the endless support and resources here so feel luckier than most. We shall see. Infinite thanks regardless and your input on court order and arb always and forever.

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Midland's attorneys got a letter from JAMS requesting a $1,250 fee. Amazing how quickly Midland came back with a stipulation of discontinuance with prejudice and a full release of the claim lol. 

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11 hours ago, SJULawAlum said:

Midland's attorneys got a letter from JAMS requesting a $1,250 fee. Amazing how quickly Midland came back with a stipulation of discontinuance with prejudice and a full release of the claim lol. 

By the book LOL.  Congrats to both of you.  Nice work on the case!!

On 9/27/2019 at 10:38 AM, SJULawAlum said:

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

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"?

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