Banana Posted April 20, 2019 Report Share Posted April 20, 2019 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! Quote Link to comment Share on other sites More sharing options...
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