Sued by Midland Funding in Texas

[workingitallout]

Hi All!,

Ive read a few threads on here about lawsuits with Midland and am just trying to fight back the best I can. I now have a few questions about arbitration but will give the requested background first:

1. Who is the named plaintiff in the suit?

Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

When I look up the retained attorney it comes up Midland Credit Management, Inc. Address is PO Box

3. How much are you being sued for?

just over $6k

4. Who is the original creditor? (if not the Plaintiff)

Paypal

5. How do you know you are being sued? (You were served, right?)

I was served at my home.

6. How were you served? (Mail, In person, Notice on door)

In person, at my home.

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

Based on what I read there, yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I have not personally spoke to anyone.

9. What state and county do you live in?

Harris, Texas, USA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Mid-2017 according to the documents

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Status says:

Served and I filed a general blanket denial on time (about 2 weeks ago). Affirmative defenses were arbitration and award, failure of consideration and failure to mitigate based on a county court survey and fill in the blank.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No interrogatory. "Charges" claimed are:

 Plaintiff is the owner and beneficiary of all claims related to the account opened by Defendant with Plaintiffs predecessor-in-interest. Thus, Plaintiff is entitled to relief under the common law cause of action account stated because (i) transactions between the parties or their predecessors-in-interest gave rise to indebtedness of the Defendant to the Plaintiff (ii) there existed an agreement, express or implied, between the parties establishing a fixed amount due, and (iii) the Defendant made a promise, express or implied, to pay the indebtedness, but has failed to do so. 10. Demand for payment has been made by Plaintiff, and as of May 11, 2018, Defendant has refused and failed to remit the remaining principal amount of $6,XXX.XX. No interest (0%) is accruing on the account.

 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

- Affidavit of a "Legal Specialist"
- 2 Account Statements
- Bill of Sale and Assignment
- Affidavit of Sale of Account by Original Creditor
- Certificate of Conformity

[workingitallout]

From what I've read on other threads arbitration is the best (and maybe only?) option for me. I found the Synchrony Bank Paypal Extras agreement and am just confused on the red portions below:

 RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• 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., if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

If I'm reading that part correctly that says they can't force ME into arbitration over debt owed to them right? But I still have that right?

• No Class Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE. If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

• 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.

I'm planning to file a MTC and Synchrony doesn't own this anymore- should I still send to them or does Midland completely take their place here? Or should I send to Synchrony AND Midland? JAMS requires proof of service on the other party- does my proof of certified mailing suffice or do I need to wait for the proof of receipt to be returned?

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.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

Same sort of question here: I am wondering if these sort of words "acting in good faith", "we will pay as long as", affect who has to pay for the ADR in case they decide to follow me into arbitration? For the "ask us" portion do I need to formally request Midland pay or is that part of the paperwork of a Consumer case?

• Governing Law for Arbitration

This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

Last question is from the JAMS paperwork- Is it still true if I don't pay the initial $250 they will still give me a case number or proof of actually filing?

I am working on my MTC and should have it ready for help this week.

Thanks in advance!!

[workingitallout]

In the CFPB database if Im trying to find the agreement in use at the time my account opened/closed-how do I identify the agreement for my card from their archived files? Im trying to avoid submitting one from 12/2018.