Midland suit in Georgia - Help with Answer, please!

[IslandPeach]

Hi all,

I've been reviewing, taking notes and trying to get all my ducks in a row for a pending suit brought on by Midland/BestBuy/Citi. First, and foremost, thank you to those who have posted their situations and those who have replied with logical next steps or thoughts. Your insights, suggestions and experiences have brought a sense of relief to what started out to be "one-more-thing" on my stress filled plate. Onwards...I have an answer prepared (which may have more than needed, hence my request for help) and attached for which I'd like some "kind" input as to what to keep and what to delete.  In advance, I appreciate the community's help.

Answer - DWP MIDLAND.rtf

[Clydesmom]

1 hour ago, IslandPeach said:

I have an answer prepared (which may have more than needed, hence my request for help) and attached for which I'd like some "kind" input as to what to keep and what to delete. 

If you are in Magistrate Court delete the entire thing.  In fact even if you are in State Court delete it.  I can tell you cut and pasted that from the internet. First: Virtually ALL of it is wrong. Purchasing the debt pool is not self injury barring suit.  The only state that allows the statute of frauds defense is Utah.  Failure of consideration between you and Midland also fails under basic contract law.  That is just scratching the surface.  Next:  you cannot request dismissal in your answer.  That would have to be a separate motion.  ALL that document does is tell Midland and their lawyers you can cut and paste bad information from the internet and how to beat you in court.

Magistrate Court has pre-printed answer forms.  Check "DENY" and submit it to the clerk and get a stamped copy back.  They will notify you by mail of a trial date that will happen within 30-60 days.  

WHO is the law firm representing Midland and what county are you in?

[IslandPeach]

Thank you, Clydesmom. I'll be dealing with Cooling & Winter in Gwinnett.

[Clydesmom]

48 minutes ago, IslandPeach said:

I'll be dealing with Cooling & Winter

UGH.  C&W has been defeated a half dozen times with a motion to compel arbitration due to this board.  They are now VERY skilled at arguing against those motions.

The second problem is that CITI has a carve out for arbitration of small claims cases.  C&W will argue that Magistrate Court IS small claims and the arbitration does not apply.  You can try for it as Gwinnett is well run by experienced Judges but be prepared they are going to fight you hard.  If not you will have to defend the suit or settle.  

[IslandPeach]

Update: Today is court date and Midland Dismissed WITHOUT Prejudice sometime today per Clerk. 

My answer included Defenses: Request for Arb AND Lack of Jurisdiction. I filed with AAA overnight per FDCPA violation (credit report shows collection action but didnt note on the complaint) and walked in 3 hours early to file the MTC Arb. Georgia rules don't stipulate a timeline. Should I a) get a copy from the clerk to make sure or wait for it in the mail/process server, b) email plaintiffs lawyer advising the dismissal needs to be mutual and advise I want Dismissal WITH Prejudice since I had already filed the AAA claim otherwise I'll continue with Arb claim or c) do I need to file some other form I'm not familiar with?

Appreciate any input.

[IslandPeach]

So I walked back in and picked up a copy of the dismissal for peace of mind and in case someone on here thinks I need to do something else other than count my blessings.

[fisthardcheese]

On 4/11/2019 at 4:10 PM, IslandPeach said:

Should I a) get a copy from the clerk to make sure or wait for it in the mail/process server, b) email plaintiffs lawyer advising the dismissal needs to be mutual and advise I want Dismissal WITH Prejudice since I had already filed the AAA claim otherwise I'll continue with Arb claim or c) do I need to file some other form I'm not familiar with?

You should d) Celebrate your victory because they wanted nothing to do with arbitration and notify AAA that you are withdrawing your claim.  It's over and there is nothing legally you can do unless you think you have solid violations against them with enough proof to hold up in court and want to sue them.

[IslandPeach]

Thanks, @firsthardcheese. 

My thought with the reason for Arb was to use FDCPA violation 1692e (8). I noticed my credit reports show "collection" rather than dispute, as they should. So I'd ask for them to change suit to Dismiss WITH Prej. w/mutual walk away & removal from reports. Would credit reports be considered "hearsay"? Would I need more proof than that? I printed both dated 5 days before trial date. What do you think?

[Clydesmom]

1 hour ago, IslandPeach said:

So I'd ask for them to change suit to Dismiss WITH Prej. w/mutual walk away & removal from reports.

They have already dismissed.  It cannot be changed now.

1 hour ago, IslandPeach said:

Would credit reports be considered "hearsay"?

Yes.

1 hour ago, IslandPeach said:

Would I need more proof than that?

WAY more and an attorney willing to represent you in Federal Court.

1 hour ago, IslandPeach said:

What do you think?

You won.  Let it go.

[BV80]

2 hours ago, IslandPeach said:

I noticed my credit reports show "collection" rather than dispute, as they should. 

“Collection” is not incorrect because it is, in fact, a collection account.

Why should it show “dispute”?

[IslandPeach]

11 hours ago, BV80 said:

“Collection” is not incorrect because it is, in fact, a collection account.

Why should it show “dispute”?

Thanks, @clydesmom.

Hi @BV80, per FDCPA 15 USC 1692e (8) - False or misleading representation:

"(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed."

So my understanding is that continuing to have the credit report marked "collection" is not the same as "disputed" since I Answered the complaint "disputing" the civil action hence a violation. 

 

[fisthardcheese]

14 hours ago, IslandPeach said:

Thanks, @firsthardcheese. 

My thought with the reason for Arb was to use FDCPA violation 1692e (8). I noticed my credit reports show "collection" rather than dispute, as they should. So I'd ask for them to change suit to Dismiss WITH Prej. w/mutual walk away & removal from reports. Would credit reports be considered "hearsay"? Would I need more proof than that? I printed both dated 5 days before trial date. What do you think?

Midland fully intends to ignore everything from AAA, and AAA will close the case.  I'm surprised they haven't yet just at seeing the name Midland, actually.  You will have to file a PTC in Federal Court to get a court order forcing Midland to participate and then send your court order in to AAA to have them open your case back up.  Midland can't change the court dismissal without opening back up the lawsuit and it would be extremely foolish to ask them to re-open a lawsuit against yourself that you have already won, as there is no guarantees of always 'winning' again.  With a court order to arbitrate, you are very likely to get Midland to agree to a mutual release of liability settlement, which means you can then use that to remove it completely from your credit reports and can not be sued again.  However, in my opinion, it isn't worth the $450 Federal Court filing fee and about 1-year of litigation involved to get there.  I would just rather send in some proper disputes to the CRAs and see if Midland is silly enough to try to sue me again later and use arbitration then to force a better settlement.

[BV80]

50 minutes ago, IslandPeach said:

Thanks, @clydesmom.

Hi @BV80, per FDCPA 15 USC 1692e (8) - False or misleading representation:

"(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed."

So my understanding is that continuing to have the credit report marked "collection" is not the same as "disputed" since I Answered the complaint "disputing" the civil action hence a violation. 

 

Are they updating their entry on your credit report every month?  Or have they stopped updating?

Have they updated their entry on your credit report since the lawsuit against you was filed?

[IslandPeach]

7 hours ago, fisthardcheese said:

Midland fully intends to ignore everything from AAA, and AAA will close the case.  I'm surprised they haven't yet just at seeing the name Midland, actually.  You will have to file a PTC in Federal Court to get a court order forcing Midland to participate and then send your court order in to AAA to have them open your case back up.  Midland can't change the court dismissal without opening back up the lawsuit and it would be extremely foolish to ask them to re-open a lawsuit against yourself that you have already won, as there is no guarantees of always 'winning' again.  With a court order to arbitrate, you are very likely to get Midland to agree to a mutual release of liability settlement, which means you can then use that to remove it completely from your credit reports and can not be sued again.  However, in my opinion, it isn't worth the $450 Federal Court filing fee and about 1-year of litigation involved to get there.  I would just rather send in some proper disputes to the CRAs and see if Midland is silly enough to try to sue me again later and use arbitration then to force a better settlement.

Hi @firsthardcheese, I thought the same - AAA will see Midland and decline but that's not what happened so the tables, on that point, may be turning. Thanks for the procedural info.

[IslandPeach]

7 hours ago, BV80 said:

Are they updating their entry on your credit report every month?  Or have they stopped updating?

Have they updated their entry on your credit report since the lawsuit against you was filed?

Hi BV80,

Are they updating their entry on your credit report every month? Or have they stopped updating? It seemed like they had stopped updating since there was no history related to Midland 

Have they updated their entry on your credit report since the lawsuit against you was filed?  As of 6Apr19 (I have a copy), they had NOT updated the credit report since they filed 27Dec18.  

I checked it Friday again and still showed "collection" BUT just checked again and they updated it to read "Account information disputed by consumer, meets FCRA requirements".  

[BV80]

19 minutes ago, IslandPeach said:

Hi BV80,

Are they updating their entry on your credit report every month? Or have they stopped updating? It seemed like they had stopped updating since there was no history related to Midland 

Have they updated their entry on your credit report since the lawsuit against you was filed?  As of 6Apr19 (I have a copy), they had NOT updated the credit report since they filed 27Dec18.  

I checked it Friday again and still showed "collection" BUT just checked again and they updated it to read "Account information disputed by consumer, meets FCRA requirements".  

They did not update until they noted your dispute.  There is no violation.