Midland for Synchrony in CA - questions

[Banana]

When I first started this thread, my intent was to settle the account. I had negotiated a settlement amount, and Midland sent me a settlement agreement. I advised them that I would review it with my attorney and could not agree to the settlement until I saw the agreement language. Now, I think that since I have to file an answer to protect myself from judgement whether I pay the settlement now or not, I will not pay it, and will fight instead. I am torn as to whether to defend or try the arb route, but leaning towards trying to compel arb. I have been working on the answer and affidavit swearing the cc agreement is the true and correct agreement, but I have some questions. First though, the forum questions about the case:

1. Who is the named plaintiff in the suit?
Midland
2. What is the name of the law firm handling the suit? 
Midland
3. How much are you being sued for?
approx 5k
4. Who is the original creditor? (if not the Plaintiff)
Synchrony
5. How do you know you are being sued? (You were served, right?)
Received service by mail. Substitute service. On proof of service due diligence form, the process server lied about having served adult co-resident fitting my description.  (That never happened.) Then he mailed the papers. That said, I don't think it's worth doing a motion to quash service because they'll just serve me again.
6. How were you served? 
mail (substitution) - see above 
7. Was the service legal as required by your state?
see above

Summons Complaint - Rule 3.70

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

Rec'd notice they purchased debt with payment demand. 

9. What state and county do you live in?
CA, Sacramento County
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
not outside SOL
11. When did you open the account (looking to establish what card agreement may be applicable)?
2013.  I believe I have downloaded the proper card agreement from Consumer Protection Bureau
12. What is the SOL on the debt? To find out:
4 yrs
13. What is the status of your case?
Complaint & Proof of service filed, I haven't submitted my answer yet and there is no hearing date set.
14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
no
15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').
no
16. 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?

Since substitute served within CA I believe I get 30 + 5. If so, I have 11 days left.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
*Bill of sale from Synchrony to Midland

*Purchase Price Reconciliation /Funding Instructions

(“This FORWARD FLOW ACCOUNTS PURCHASE AGREEMENT is made this [date])

*Affidavit of sale of account by original creditor

*Certificate of Conformity

* a screenprint w/ acct info captioned at the bottom “Account information provided by Synchrony Bank pursuant to the Bill of Sale / Assignment of Accounts transferred [date] in connection with the sale of accounts from Synchrony to Midland. “

*the initial notification to me that the account was sold to Midland, demanding payment

*two billing statements from the OC

*copy of Notice of Legal Placement notifying me it was transferred to the legal department

*Superior Court Alternative Dispute Resolution Information Package

*Blank form CV\E-203, Stipulation and Order to Arbitration/Mediation Limited Civil Cases

18.  How did you find out about this site?

Google search

It appears the suit is not verified, therefore I plan to prepare a General Denial. 

The settlement agreement they sent me to review gives me until 4/26 to pay. I have not contacted them since having received the agreement. They did not specify in the agreement that they will dismiss after the payment is made. 

(The agreement they sent is on their letterhead.) It says:

You have agreed to pay a total settlement amount of $x. As of the date of this letter, your remaining settlement balance is [all of] x. Please see add'l page for settlement term details.

This settlement arrangement is made in good faith and is contingent upon payment of the total settlement amount. If the payment instrument is returned “not paid” for any reason, this letter will be null and void. In the event you fail to make all payments on time and as agreed, this agreement will no longer be valid and further legal activities may follow and a judgment may be entered against you. As a result, you may owe more than the balance shown in this letter.

***

The attached page has the account number, and says, "The settlement terms you have agreed to are as follows:

One-time payment $x by personal check due on [date]." 

It sounds like I have a good chance to prevail if I can get the MTC Arb granted. I will need help with reviewing my drafted paperwork though. I'm hoping some of you here will be able to help me out. 

Thank you for reading my post!

[nobk4me]

If you want to settle with them, that's your option.  BUT, I think you have a much better option, when dealing with a JDB and the OC is Synchrony:  arbitration.  Best arb info:

 

I would file an answer to the lawsuit and a MTC Arb.  You can make this go away for much less, probably around $0.

[Banana]

Thank you for your input, Nob. Since I am going to have to fork out the first paper fee and put effort and time into filing an answer, I may as well make it good. The settlement they are offering is not good, (pay over 75%).

Here are some questions.

I'd rather use the general denial because it's hard to mess that up, but I wonder if I would be better off NOT using the general denial because instead of uniformly denying everything, I can selectively use the "Defendant is without knowledge and information sufficient to form a belief as to the truth of the matters alleged in Paragraph 1 of Plaintiff's complaint and therefore denies same." verbiage?

I am afraid in using a general denial, I would be denying things that are contrary to the evidence they already submitted into evidence. For example, they complied with 1788.52 and informed me of the assignment of the account.  (They have attached a  copy of the assignment letter as an exhibit). If I deny that, via general denial, it makes me look like I'm lying.  I'm not sure what to do.

 

  

 

[Banana]

Input is appreciated. 

I am really unsure as to whether the best move is arbitration (synchrony) or try to fight alla Medic's example (CA, using ccp 98 and serving the witness to try to get the affidavit tossed.)

Medic paid a whole lot of filing fees out of pocket. That's also a heck of a lot of paperwork for me to have to  get right (leaving lots of opportunity for error). So maybe arbitration is the way to go. I would hate to have to appeal if I end up with a judge that doesn't follow the rules and ignores the rules to smack me down. 

On CP 98 strategy, doesn't the whole thing hinge on not being able to subpoena the witness? What if I am able to serve the witness? Then I hope they either a. don't show up for deposition or court, or b they are not the proper title to testify? 

I am unsure whether arb has to be listed as an affirmative defense on tge answer in order to not waive the right to arb? If arb isn't mentioned in tge answer, I read that I have to submit the petition to compel arb at the same time as I file my answer. Is that true? Because I was hoping to just do tge answer and buy some time to consider which is tge best way to go. 

 

[Banana]

Ok, I keep reading here and I finally saw that I entirely missed the "unverified" part of whether I am allowed to file a general denial. As there is no statement under the atty's signature on the last page of the complaint, I think I can file a general denial afterall. (Which is a relief.) I am going to work on that now.  (I realize I am only answering myself here, but I am hoping someone will pop in and catch up who can assist as I go along.)

Banana

[nobk4me]

Note, I am not in CA, and thus am not familiar with CA rules and law.  However, from what I have seen here, CA seems to be one of the few states where fighting JDBs in court can still work.  But, apparently, it involves a lot of work and paying court fees.

I personally favor arbitration.  The law favoring arb is very strong, and a good MTC Arb should be granted.  And that should be the end of the case.  Or you might have to file in JAMS or AAA - but when they get the big arb bill, it's over.

[Banana]

@RyanEX

@sadinca

Ok so I'm finishing up my affidavit (which I know requires a notary) stating the cardholder agreement is true and correct, etc. so I can submit it along with my answer and MTC along with the cardholder agreement downloaded from the consumer protection database. In the arb forum in one of first hard cheese's threads, there is a directive as follows:

"It needs to state that you are making the statements under penalty of perjury, that your statements are based on your personal knowledge of the account and records, that it was your account and that the attached agreement was in effect during the life of the account. It also needs to be notarized ("subscribed and sworn to before me") to have any effect." 

If I am answering with a general denial I am afraid to say that it was my account in the affidavit, since that seems contradictory. Here's what I wrote. Will this work with that part left out? Is it ok for the affidavit to  not be on pleading paper,  or is that answered by my local court rules?

[court header]

AFFIDAVIT

 

I, [ ]California, MAKE OATH AND SAY THAT:

1. The attached "GE Capital Retail Bank Section 1: Rates and Fees Table, Gap Inc. Visa Card Account Agreement, Pricing Information", Exhibit A, is a true and correct copy of the contract that governs the account from which Plaintiff's allegations arise
2. The attached agreement was in effect during the life of the account.
3. This statement is based on my personal knowledge of the account and records.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

[Banana]

Bump for some help if anyone has time.

[RyanEX]

I don't know much about arbitration, to be honest. But, to your question, I would think you can invoke aarbitration without acknowleging it was yours...language like "alleged account" or "card agreement that would govern alleged account" etc.

Far as I know, you want to use pleading paper when filing such things with the court, if there is no state supplied form that would substitute. You can find pleading paper templates online that will work, just do a search. Example: https://templates.office.com/en-us/Legal-pleading-paper-28-lines-TM03992040

[Banana]

Thank you so much for your reply. That makes total sense to do it that way. Looking at my court rules and the motion tutorial from the law library website put me into a dang panic attack. The motion has to be different than the examples here. Intimidating. I hope I can get it right. 

It will take me longer to do the motion, so I am going to file the answer so that's done and then work on the motion. In my court, they give a tentative result and if no one has said says they want to show up for hearing, this just stands. If they send me a giant opposition to the mtc Arb like midland sent to one of the other posters here recently, I'm going to freak out. 

Banana