midland is sueing me in wisconsin and i have no idea what to do?

[syrina]

I just got served papers for debt collection by midland in Wisconsin. This is for credit card debt from a citibank sears card.  I want to take them to arbitration but I do not know what to do? I have an appearance/ file an answer  on July 17th. I looked up the sears citibank cardmember agreement and its through aaa not jams. How do I file and answer? I am a newbie at anything with court.

[nobk4me]

Maybe @BackFromTheDebt can help?

[BackFromTheDebt]

Is this small claims or circuit court?

From what you wrote, it appears to be small claims.

Every county has different rules for small claims.  Your first homework assignment is to find out the rules for small claims for your county.

Your other homework assignment is to read the arbitration section to get a good template for a MTC.

Worry about the rest later.

Remember, when filing papers in Wisconsin, always include the case number on the top of the page.

[syrina]

thank you so much I will study this as much as possible. It is small claims court. I have started to read the arbitration section and it gives me hope. 

[fisthardcheese]

Check the Citi arbitration section closely for what it says about small claims.  Just be prepared to potentially fight over that in court if it says what I recall is says.  In the meantime, an answer is fairly straight forward, you just need to deny all allegations they allege in their complaint and then add an affirmative defense of "Lack of subject matter" due to the private arbitration clause in the contract.

If you have not yet seen it, the link in my signature below goes into much more detail on the process.

[syrina]

It says under the heading of covered claims in bold letters "If arbitration is chosen by any party neither you nor we will have the right to litagate that Claim in court or have a jury trial on that claim." 

Under the heading of Arbitration limits, it states that "Individual Claims filed in small claims court are not subject to arbitration, as long as the matter stays in small claims court."

 It also states under the heading of  How arbitration works "arbitration may be requested anytime, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/ or commence arbitration by submitting the required AAA forms and requisite filling fees to the AAA.

If I am reading that correctly that means I can enter the mtc and request arbitration?

Sears_Card_Online_CMA_0118_vf (1).pdf

[BackFromTheDebt]

1 hour ago, syrina said:

It says under the heading of covered claims in bold letters "If arbitration is chosen by any party neither you nor we will have the right to litagate that Claim in court or have a jury trial on that claim." 

Under the heading of Arbitration limits, it states that "Individual Claims filed in small claims court are not subject to arbitration, as long as the matter stays in small claims court."

 It also states under the heading of  How arbitration works "arbitration may be requested anytime, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/ or commence arbitration by submitting the required AAA forms and requisite filling fees to the AAA.

If I am reading that correctly that means I can enter the mtc and request arbitration?

Sears_Card_Online_CMA_0118_vf (1).pdf 111.74 kB · 1 download

It says you cannot choose arbitration in small claims, UNLESS it is moved to another court. You are in small claims. 

You should choose arbitration anyway, for several reasons.  

1.  It is possible, but not likely, that Midland will forget to fight against arbitration. 

2. If you lose in small claims court, you have an automatic appeal to Circuit Court. 

There was a guy from Wisconsin not long ago who had arbitration rejected in small claims.  He appealed to Circuit Court.  Since it was now in Circuit Court, the judge granted the MTC and he won the case.  

 

You should answer this.  

I am not by my computer now, but I remember Wisconsin has a very interesting law.  You will need to look it up.  It is somewhere in the Wisconsin Consumer Act. 

When Citi sold the debt to Midland, Citi was required to send you a letter saying they were transferring the debt. If they didn’t send the letter, by Wisconsin law, the debt was not properly transferred.  Meaning Citi still legally owns the debt   

They never send that letter.  I don’t know if any cases where the letter is sent. 

Many judges and magistrates will ignore that law, because many judges and especially magistrates just do whatever the heck they please.  Sad to say   

Someone who knows Briane Pagel, the top consumer lawyer in Wisconsin, told me that Briane tells his clients to expect to lose in small claims since the magistrates don’t know what they are doing.  Then, appeal to Circuit Court.  You get a brand new case in Circuit Court and, depending on your county, you may get a much better judge. 

The best judges tend to be in Dane and Milwaukee Counties.  In rural areas you may get a good judge or a bad one.  

The best results on this board have been with posters from Dane and Milwaukee Counties.  Posters from other counties have generally had to try to find the best judge.  There used to be a poster from a county with 4 judges.  He had a ton of cases in that court.  One of the judges really didn’t like him, so he took advantage of a Wisconsin court rule that a litigant can reject a judge one time if that is done before filing any papers.  So if you live in a rural county, and if you need to appeal, see if you can find out which are the best and worst judges.  

 

This is a LOT for now. 

For the time being, here is what you need to do:

A.  Find out the small claims court procedure for answering the complaint.  Sometimes you need to file an answer in person, sometimes you can mail it in, sometimes you have to show up at a certain date and time.  Some courts make you use a specific form.  If they require a certain form, use it.  

 

If you file in person or mail it in, you will also have to mail a copy to Midland’s lawyer.  Please do that Certified Mail Return Receipt Requested to prove you sent it.  The one time I forgot to send it CMRRR the lawyer for the other side claimed I never sent it.  

B. Write up an answer to the complaint. 

First, just write up a general denial of all allegations. 

Second, you have two affirmative defenses:

1.  Improper venue, because you are electing arbitration. 

2.  Midland hasn’t proved ownership of the debt.  Demand they prove ownership. Also, see if you can find the Wisconsin Statute which states that the original creditor must notify you of a sale of the debt or else the sale is not valid.  

Third, you need to write up a Motion To Compel arbitration. 

Realize that the procedure for filing a motion varies from county to county, especially in small claims court.  You need to find out how to file and schedule a motion.  Talk to the clerks in your court if you can.  The way things are done in my county are almost certainly different from yours, unless you happen to live in my county.  

 

Ask us questions when they arise. 

[syrina]

I am having a heck of a time trying to find that law in the Wisconsin Consumer Protection act. Some laws were changed in 2016, I wonder if that was taken out?

 

[BackFromTheDebt]

2 hours ago, syrina said:

I am having a heck of a time trying to find that law in the Wisconsin Consumer Protection act. Some laws were changed in 2016, I wonder if that was taken out?

 

I don’t know. 

I am having trouble finding it myself.  I will look some more this weekend 

[BV80]

23 hours ago, BackFromTheDebt said:

I am not by my computer now, but I remember Wisconsin has a very interesting law.  You will need to look it up.  It is somewhere in the Wisconsin Consumer Act. 

When Citi sold the debt to Midland, Citi was required to send you a letter saying they were transferring the debt. If they didn’t send the letter, by Wisconsin law, the debt was not properly transferred.  Meaning Citi still legally owns the debt   

Are you referring to this?

422.409  Notice of assignment.

(1)  The customer is authorized to pay the assignor until the customer receives notification of assignment of the rights to payment pursuant to a consumer credit transaction and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the customer, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless the assignee does so the customer may pay the assignor.

Scheunemann v  JC Christensen

Thus, the statute does not require JCC to furnish notice or proof of assignment to plaintiffs, but rather requires the assignee — here, Resurgent — to furnish the notice or proof.

The assignee, not the OC, must furnish the notice.  

[BackFromTheDebt]

Yes, I just looked up some of my old papers.  

For old timers on this forum, one of the parties in that case used to post on this forum. 

[syrina]

oh my God that is brilliant! i never recieved any letter, and i do no think midland would have that either.

[BV80]

23 minutes ago, syrina said:

oh my God that is brilliant! i never recieved any letter, and i do no think midland would have that either.

I believe @BackFromTheDebtis referring to this:

422.409  Notice of assignment.

(1)  The customer is authorized to pay the assignor until the customer receives notification of assignment of the rights to payment pursuant to a consumer credit transaction and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the customer, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless the assignee does so the customer may pay the assignor.

From Scheunemann v. JC Christensen

“Thus, the statute does not require JCC to furnish notice or proof of assignment to plaintiffs, but rather requires the assignee — here, Resurgent — to furnish the notice or proof.”

The assignee, not the OC, is required to furnish the notice.  

From Johnson v. LVNV Funding

LPlaintiffs contend that LVNV Funding violated the WCA by filing the state-court lawsuit without first providing a notice of assignment from the original creditor to LVNV Funding. (Doc. 1 at 4.) But the statute does not tie the validity of the assignment to the notice requirement. Instead, it merely provides that payments made by the debtor to the original lender count as valid payments until notice of the assignment is made. All this means is that if plaintiffs paid the original lender, that payment counts toward payment of their debt, even if an assignment had occurred. It does not mean that the assignment was invalid or that LVNV Funding could not sue.”

[syrina]

"The assignee, not the OC, must furnish the notice."   who is the assignee? So if the assignee is Resurgent does that mean that Midland is the assignee in my case?

Edited June 26, 2019 by syrina
hit enter instead of backspace

[BackFromTheDebt]

Midland is the assignee in your case.  

[BackFromTheDebt]

Note that this doesn’t mean you will win the case.  Midland might put together something saying they own the debt.  

Your argument is that Midland was required to send you the notice before suit; that they were required to notify you with proof of the transfer in order to properly own the debt   Since they didn’t, then they had no standing to sue.   

Will that fly? Maybe, maybe not.   

However, you have a counterclaim against Midland for violations of the FDCPA and the Wisconsin Consumer Act.

Will that work? Maybe, maybe not. 

The idea is to muddy the waters enough so that Midland doesn’t want to deal with you.  

You will likely lose the case in small claims.  At that point, appeal to Circuit Court, and file a Motion to Compel arbitration.  You are no longer in small claims at this point, so the small claims exemption no longer stands.  

In other words, you have numerous ways to win.  Realize that some  of these have a small chance of working while others have a big chance. 

1.  Move to Compel arbitration in small claims.  You will probably lose this, but by muddying the waters with all the other stuff, Midland may want to let it go and be rid of you.  It happens sometimes. 

2.  Argue that Midland doesn’t have the right to sue because they never properly notified you.  Even if you are correct, most of the time the magistrate will rule against you.  

3.  Appeal to Circuit Court and file a MTC. This is your best chance of winning.  

4. Argue in Circuit Court that Midland didn’t have the right to sue because they didn’t send the required notice.  This is a fallback in case all the others fail. 

5.  Claim a violation of the FDCPA and Wisconsin Consumer Act because they filed without the right to do so.  You may. E able to negotiate a deal with Midland for a dismissal without prejudice.  The chances of them re-suing after any dismissal are very small. 

 

None of these are a slam dunk, but all of them have at least a little chance of winning.  More important, you could spook Midland into quitting. 

[syrina]

Maybe I should cross that one off that for affirmative defense? 

[syrina]

oh wait i misunderstood. ignore my cross off post

 

[syrina]

thanks for the advice. I am gathering up a major checklist from all this info and heading to the courthouse before the weekend to get proper proceedures and make sure I do not screw anything up. If the plantiff (midland lawyer) does not show should i file a motion for dismissal with pred? Or would that mess up my chances for arb?

[BackFromTheDebt]

12 minutes ago, syrina said:

thanks for the advice. I am gathering up a major checklist from all this info and heading to the courthouse before the weekend to get proper proceedures and make sure I do not screw anything up. If the plantiff (midland lawyer) does not show should i file a motion for dismissal with pred? Or would that mess up my chances for arb?

Don’t confuse your goals with your tactics. 

Your goal is to get a dismissal.  

Arbitration is a tactic to get there.  

Midland will show.  In the unlikely event they don’t show, move for a dismissal.  There is a good chance it will be dismissed without prejudice.  Or maybe the magistrate will just give them another chance.  

[syrina]

should I conntact midland for validation of the debt? or would this be too late or even to early?

[BV80]

1 hour ago, syrina said:

should I conntact midland for validation of the debt? or would this be too late or even to early?

It’s too late now that you’ve been sued. 

[BackFromTheDebt]

9 hours ago, syrina said:

should I conntact midland for validation of the debt? or would this be too late or even to early?

It is too late.  

What you need to do is raise the affirmative defense that Midland did not notify you when they purchased the debt, as required by law, and that you are not obligated to pay them when they did not notify you 

[syrina]

I dont think they can defend agaisnt that. Wouldnt they have to send something via mail  that I would have to sign to take delivery? I never had one person show up and ask me to sign anything.

[BackFromTheDebt]

49 minutes ago, syrina said:

I dont think they can defend agaisnt that. Wouldnt they have to send something via mail  that I would have to sign to take delivery? I never had one person show up and ask me to sign anything.

They will find some hand waving way to argue against it.  The magistrate might buy it or might not.  Never assume a case is slam dunk. 

As I mentioned earlier, the top consumer lawyer in Wisconsin usually advises his clients that they will probably lose in small claims court even if the law is on their side because magistrates want to rule for the plaintiffs.  

If you lose in small claims, you have the right to have the case heard in Circuit Court   

Once it is in Circuit Court you have a very good chance of getting arbitration.  The other affirmative defense is a backup plan. 

An affirmative defense puts the burden of proof on YOU.  I would recommend signing an affidavit that you didn’t receive the proper notice.  Once you have done that, they have to prove they did.  Which may not be very easy.