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syrina

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

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In my case the same judge handles small claims and circuit court. I have been pouring over Wisconsin law, and cannot find anything that fits this defense. Having them prove proper notice is a  FDCPA and the Wisconsin Consumer Act,  right? I am sorry if I seem redundant with questions, the last and only time I was in court was jury selection, and I wasn't even chosen. I do understand though the strategy here and it is really sound. Also I found out that the plantiff is allowed to miss the first hearing for small court so that sucks. If midland has a statement with my account how should I answer that? Would I agree that it is my statement? Or deny that it is even mine? I know they are going to come after me and try to trick me up. And that is what is scaring me to death.

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 @BackFromTheDebt

@syrina

I could be wrong, but I think you are incorrectly interpreting the notice of assignment.

Pay close attention to the what the court stated in the citation I provided from Johnson v. LVNV Funding.

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.”

The highlighted part explains the intent of the statute.  It’s about which business to pay.  It does not indicate that failure of a notice means the debt is no longer owed.

Now notice this:

“It does  not mean that the assignment was invalid or that LVNV Funding could not sue.” 

The above shows that lack of a notice does not doesn’t mean that a sale of a debt is invalid or prevents the assignee from filing suit.

 

 

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ok, so scratch that defense. can i make a motion to have my case moved to circuit giving me the right to arbitration right off the bat?

 

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2 hours ago, syrina said:

ok, so scratch that defense. can i make a motion to have my case moved to circuit giving me the right to arbitration right off the bat?

 

The goal is to throw as much stuff around that MIGHT win the case as possible, and hope that SOMETHING works.

That particular defense probably won't work.  It is a long shot, but it MIGHT work.  

As far as Circuit Court goes -- you have the automatic right to appeal to Circuit Court if you lose.  You will probably lose in small claims court.  Once you are in Circuit Court your chance of winning are much higher.  

To re-iterate:

1. Try a MTC in small claims court, as well as using choice of arbitration and improper notification as affirmative defenses in small claims.

Unless the lawyer is asleep at the wheel, you will lose the MTC.  No big deal.  You expect this to happen.  However, sometimes the lawyer is asleep at the wheel.  The importance of the MTC in small claims is to show you really want it.  They might try to claim you waived your rights when you are in circuit court.  By showing you filed an MTC in small claims, you show you did not waive your rights.

The notification defense will probably not work.  It is a long shot, but, sometimes it works.  You have two shots to make it work.  Small claims is your first shot.  

2. If you lose in small claims, appeal to Circuit Court.  

You expect to lost in small claims, but, go through with small claims anyway.  Sometimes you win.  If you win in small claims, no need for circuit court.

3.  File an MTC in circuit court.  MOST of the time this will work.  The other side will try to argue that the case is a small claims case.  Your argument is the small claims exemption is ONLY when the case is still in small claims -- the exemption is no good for circuit court.  MOST of the time you will win.

4.  If your MTC fails, answer the claim, but with the notification defense as an affirmative defense.  This is a long-shot.  This is sort of like a Hail Mary pass in football.  But, if you have watched enough Packers games on TV, you know sometimes the Hail Mary pass works.  

5.  If you lose everything, then you need to decide whether or not to appeal.  

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thank you so much BFTDEBT and company, the lights just came on in my head. I understand now how it works. Is there a safe way I can deny anything that the lawyer tries to shove in my face? there has to be some sort of legal vague response like "not to my recolection", or just even a simple "I dont know?"

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If it were me, I would just go in full blaze with my MTC.  I push hard for it saying it is my right to move the case to arbitration.  More often than not, the attorney will not know how to respond or will be caught off guard and won't have a proper response and will just try to come up with something off the top of their head and that usually is something about the wrong card agreement or costs, which can easily be refuted.  More times than not, a small claims judge will grant the MTC.  This is why I would go in pushing for it as if there is no issue at all.  Have the other steps ready for a back up, but hopefully you won't need them.

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That is what I am thinking too FHcheese. have you ever heard of the strategy of making a motion to dismiss in order to seek arbitration? I know that by losing small claims i can appeal and file arb in circuit, but I have been seeing some evidence of asking for a dismissal in turn for private arb. I know I can make the argument to the judge that this will unburden the courts with further litigation and after all it is in the contract. I also found an answer to what to say when they start the interogation tactics "Defendant is without information or knowledge to suffeciently form an opinion as to the truth or accuracy of the plantiffs claim." 

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19 hours ago, syrina said:

That is what I am thinking too FHcheese. have you ever heard of the strategy of making a motion to dismiss in order to seek arbitration? I know that by losing small claims i can appeal and file arb in circuit, but I have been seeing some evidence of asking for a dismissal in turn for private arb. I know I can make the argument to the judge that this will unburden the courts with further litigation and after all it is in the contract. I also found an answer to what to say when they start the interogation tactics "Defendant is without information or knowledge to suffeciently form an opinion as to the truth or accuracy of the plantiffs claim." 

And therefore must deny. 

Whatever you do, don’t make a mistake I made many years ago and say I can’t affirm or deny. 

That case was ruled against me because I didn’t say .. and must therefore deny.  

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well just a quick update as to what is going on. I submitted my answer and midland and for a lack of a better word  they got "pi**ed". The next thing that the law firm did was request to attend court via phone. The judge promptly shot that down. In fact the judge handwrote on the request that "lawyers must be in court for a trial". The midland lawyers sent me a really nasty admit to my guilt package with all of their evidence (last cc statement, and the usual affidavit of the keeping of their records. I know I am going to lose this case, and decided to take out a small 401k loan to get ready to pay this and have a back up for the 2 last debts I have on my name. After that  i am debt free. But now onto the really good stuff. The last 2 debts I have were two syncronicity cards. These cards were sent to none other than midland and also to the same shadey lawfirm i iirrated with my current case. Midland of course decided to sue. Yhe lawfirm put both of the cards into one lawsuit. Oh boy the sync arbitration clause is really nice, I hope they like to pay for everything. I am going to file my answer with a mtc arbitration via the cc agreement, with JAMS. In court the jdb lawyer wants to combine these 2 cards,that does not mean that I have to in arbitration. It is a double whammy for one lawsuit. I am going to start another thread for these 2 new debts. I have enough funds from my 401k loan to cover everything but from here on out this girl wants to really make them hurt.

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2 hours ago, syrina said:
 

well just a quick update as to what is going on. I submitted my answer and midland and for a lack of a better word  they got "pi**ed". The next thing that the law firm did was request to attend court via phone. The judge promptly shot that down. In fact the judge handwrote on the request that "lawyers must be in court for a trial". The midland lawyers sent me a really nasty admit to my guilt package with all of their evidence (last cc statement, and the usual affidavit of the keeping of their records. I know I am going to lose this case, and decided to take out a small 401k loan to get ready to pay this and have a back up for the 2 last debts I have on my name. After that  i am debt free. But now onto the really good stuff. The last 2 debts I have were two syncronicity cards. These cards were sent to none other than midland and also to the same shadey lawfirm i iirrated with my current case. Midland of course decided to sue. Yhe lawfirm put both of the cards into one lawsuit. Oh boy the sync arbitration clause is really nice, I hope they like to pay for everything. I am going to file my answer with a mtc arbitration via the cc agreement, with JAMS. In court the jdb lawyer wants to combine these 2 cards,that does not mean that I have to in arbitration. It is a double whammy for one lawsuit. I am going to start another thread for these 2 new debts. I have enough funds from my 401k loan to cover everything but from here on out this girl wants to really make them hurt.

If it were me personally, i would file the MTC and not the answer in accordance with Wisconsin rules of civil procedure 802.06(a)(2)(b) which states: https://docs.legis.wisconsin.gov/statutes/statutes/802/06

1) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

2) lack of subject matter jurisdcition;

3) ) A motion making any of the defenses in par. (a) 1. to 10. shall be made before pleading if a further pleading is permitted...

To ''answer'' is a pleading.

802.01(1)Pleadings. There shall be a complaint and an answer....

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1 hour ago, Robby8900 said:

If it were me personally, i would file the MTC and not the answer in accordance with Wisconsin rules of civil procedure 802.06(a)(2)(b) which states: https://docs.legis.wisconsin.gov/statutes/statutes/802/06

1) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

2) lack of subject matter jurisdcition;

3) ) A motion making any of the defenses in par. (a) 1. to 10. shall be made before pleading if a further pleading is permitted...

 

This is correct. 

In Wisconsin, you can answer a suit with a dispositive motion in lieu of an answer.  You are not required to file an answer unless your motion is denied.  

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2 hours ago, syrina said:

well just a quick update as to what is going on. I submitted my answer and midland and for a lack of a better word  they got "pi**ed". The next thing that the law firm did was request to attend court via phone. The judge promptly shot that down. In fact the judge handwrote on the request that "lawyers must be in court for a trial". The midland lawyers sent me a really nasty admit to my guilt package with all of their evidence (last cc statement, and the usual affidavit of the keeping of their records. I know I am going to lose this case, and decided to take out a small 401k loan to get ready to pay this and have a back up for the 2 last debts I have on my name. After that  i am debt free. But now onto the really good stuff. The last 2 debts I have were two syncronicity cards. These cards were sent to none other than midland and also to the same shadey lawfirm i iirrated with my current case. Midland of course decided to sue. Yhe lawfirm put both of the cards into one lawsuit. Oh boy the sync arbitration clause is really nice, I hope they like to pay for everything. I am going to file my answer with a mtc arbitration via the cc agreement, with JAMS. In court the jdb lawyer wants to combine these 2 cards,that does not mean that I have to in arbitration. It is a double whammy for one lawsuit. I am going to start another thread for these 2 new debts. I have enough funds from my 401k loan to cover everything but from here on out this girl wants to really make them hurt.

Let me play Devil’s Advocate for a while and give the argument against filing separate JAMS cases.  Of course, you should do whatever you feel comfortable doing. 

Midland will almost certainly walk away once the case is in arbitration.  Filing one case is less work for you than filing two cases.  If they walk away from two cases it doesn’t cost them any more money than walking away from one case. 

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48 minutes ago, BackFromTheDebt said:

This is correct. 

In Wisconsin, you can answer a suit with a dispositive motion in lieu of an answer.  You are not required to file an answer unless your motion is denied.  

Yes, i mentioned it because, if a defendant files an answer and denies the alleged allegations in plaintiff's complaint, but also asserts an affirmative defense of: lack of subject matter jurisdiction due to an underlying arb clause, the judge may deny a MTC due to the fact that the court can not grant MTC where a defendant did not agree to arbitrate. Which a answer denying may do just that.

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1 hour ago, Robby8900 said:

Yes, i mentioned it because, if a defendant files an answer and denies the alleged allegations in plaintiff's complaint, but also asserts an affirmative defense of: lack of subject matter jurisdiction due to an underlying arb clause, the judge may deny a MTC due to the fact that the court can not grant MTC where a defendant did not agree to arbitrate. Which a answer denying may do just that.

Generally, they are pretty good about awarding arbitration in Wisconsin.  Although in small claims, anything can happen.  Which is why it is great that either party can appeal a small claims decision and have it heard de novo in Circuit Court 

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On 6/29/2019 at 3:52 PM, fisthardcheese said:

If it were me, I would just go in full blaze with my MTC.  I push hard for it saying it is my right to move the case to arbitration.  More often than not, the attorney will not know how to respond or will be caught off guard and won't have a proper response and will just try to come up with something off the top of their head and that usually is something about the wrong card agreement or costs, which can easily be refuted.  More times than not, a small claims judge will grant the MTC.  This is why I would go in pushing for it as if there is no issue at all.  Have the other steps ready for a back up, but hopefully you won't need them.

Would a MTC be in lieu of an an answer to the complaint or along with the answer to the complaint?

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Hi there all,

Sorry in advance for the length of this saga, but I promise there is a good ending.

I haven't been on the forum for a while and wish I'd seen the original posting.

So, I was sued by Midland for an alleged 5k Care Credit (Synchrony) account about 2 years ago. There was a lovely arbitration clause (like yours) in the card agreement. 

Kohn Law Firm was doing the dirty work and brought the suit against me in my county's Small Claims Court.  

I was very grateful to receive significant information and strategic suggestions from members here (several who have been posting on this thread). I also did a boatload of research, including using PACER and almost memorizing WI's Consumer Act. 

I filed my Answer along with my MTC and appeared for the Hearing.  

The attorney representing Kohn had graduated from law school months prior to the Hearing (again, research).  That very young man was representing Kohn on several matters before the Court that day and had rudely asked (demanded) each Defendant to confer with him prior to the proceeding. He'd been able to threaten and convince several parties to sign agreements admitting their debts because, "you'll get a better deal this way," and was, no doubt, expecting me to fall in line.  He started by denying he'd received my Answer or MTC. This was either a blatant lie (my bet) or abject incompetence (possible) as I'd filed them electronically using WI's e-file system. I highly recommend filing everything this way as it is hassle-free and, I believe, shows the Plaintiff you are engaged in the process. When I slid a hard copy of the documents across the table to him,  he shoved them back at me without looking at them. At that point, I told him we had nothing else to discuss and walked out. 

As I'd been astutely warned by forum members, the Small Claims Court Commissioner (who presides over the initial Hearing in consumer debt cases), barely glanced at my MTC. The Kohn attorney told the judge that he had no idea what I was proposing and had never seen the document.  The Commissioner said that it didn't matter anyway because he was ruling in favor of Kohn/Midland and entering a judgement against me. 

I immediately (via e-file) requested a hearing before a Circuit Court judge. I received notice of an assigned judge and hearing date. Research (again) led me to understand that the judge was likely the most pro-business, anti-consumer on the bench in the Circuit and filed to request a new judge.  I received a new judge, one who appeared, at least on paper, to view consumers in a more favorable light.

Before the hearing date, I was notified (via e-file) of Kohn's Motion to Deny my MTC. I was actually surprised at the apparent lack of thought and legal reasoning contained in the document. It felt like they were not taking my Motion seriously. I responded to Kohn's Motion point by point and filed a copy of my application to JAMS.

At the hearing, it was obvious that the Judge had actually read and thought about my MTC. He told the Kohn attorney that his Motion had not really addressed the issues I'd raised and asked him pointed questions as to why the case law I cited would not be relevant. If boy-lawyer had not been such a jerk, I would probably have felt sorry for him. He sputtered and turned red- especially when my MTC was granted.

Then started what I call the JAMS dance. I was really trying to not pay the $250 filing fee. There were many emails back and forth with Kohn. My case was now being handled by boy lawyer's supervisor. In retrospect, I would likely have been okay not paying but admit I blinked when JAMS said they were closing the case because of not receiving filing fees from either party. I just did not want to be in defiance of the court's Order. So I paid my $250. Magically, Kohn filed for a Dismissal of the case, without prejudice.

Again, none of this would have been possible without the wisdom of the forum members and the kindness they show by sharing that.

 

PM me if you have any questions.

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That is super helpful WonderinginWi!! When you filed your mtc did you use an affirmative defense, or just the arb? I want to really make sure I get that part right. What cc agreements should I use? Would I use the ones from 2017-18, or the ones that are current?

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Hi syrina,

 

 

In my case, I did file an Answer to the Complaint, including affirmative defenses but I understand now that it was not necessary. Your MTC is all that is necessary, as you are saying, in essence, that the case does not belong in that venue. You don't need to offer up any defense or affirmative defense. 

The forum members here know of what they speak.  

3 hours ago, syrina said:

What cc agreements should I use? Would I use the ones from 2017-18, or the ones that are current?

My understanding is that you use the agreement that was in force when you made your last payment. I am not positive about that, though, but I'm betting the posters here will know. I actually used the agreement in force when I opened the account. The arb clauses were unchanged from that agreement through the date I was sued, so it was moot. 

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On 8/16/2019 at 4:55 PM, WonderingInWI said:

I blinked when JAMS said they were closing the case because of not receiving filing fees from either party. I just did not want to be in defiance of the court's Order. So I paid my $250.

Did you not send a cover letter with your JAMS Demand pointing out that the company is liable for 100% of the filing fees per the Synchrony Card Agreement?  I would never send money to JAMS with a solid contact like the Synchrony one.

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3 hours ago, fisthardcheese said:

Did you not send a cover letter with your JAMS Demand pointing out that the company is liable for 100% of the filing fees per the Synchrony Card Agreement?  I would never send money to JAMS with a solid contact like the Synchrony one.

You are quite correct, @fisthardcheese. I should not have paid.

I demanded Midland pay the filing fee when I filed the MTC, in a letter attached to the JAM application, in a separate letter to the law firm (which I filed electronically with the court- because, why not?) and in numerous emails between Kohn, JAMS and me.

Even though I knew I was right, in the end, I paid the $250 when JAMs sent their "final" fee demand letter. I was 99.9% sure Midland/Kohn was not going to arbitrate, but the Kohn lawyer was so po'd at me, personally, that I was worried he might pay the filing fee himself just to call my bluff. That is why I blinked and almost immediately regretted it.

When Kohn sent me a dismissal agreement, I refused to sign until they reimbursed me the $250. Ultimately, Kohn just filed a Dismissal (with prejudice, of course) with the court. 

I believe I could have sued them to get it back, but, frankly, I was so thrilled to have the $5k debt gone that I just wanted to be done. 

 

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UPDATE!   so tomorrow is the answer for the court. I just logged on to the Wisconsin EFILE system. I have a new document from the court telling me that on the 29th I have a status update hearing on my motion to compel arbitration. It feels like my mtc arbitration worked. I filed everything including the Synch agreements from 2016-2019, my affidavit stating that they were downloaded from the gov cc website,and  my demand for arb to midland telling them that they had to pay all admin and arb fees. The doc from the judge says "this matter will not be adjorned by the court except upon formal motion for good cause, or with the specific approval of the court uponstipulation by all parties". Status of defendants motion for arbitration.

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5 hours ago, syrina said:

UPDATE!   so tomorrow is the answer for the court. I just logged on to the Wisconsin EFILE system. I have a new document from the court telling me that on the 29th I have a status update hearing on my motion to compel arbitration. It feels like my mtc arbitration worked. I filed everything including the Synch agreements from 2016-2019, my affidavit stating that they were downloaded from the gov cc website,and  my demand for arb to midland telling them that they had to pay all admin and arb fees. The doc from the judge says "this matter will not be adjorned by the court except upon formal motion for good cause, or with the specific approval of the court uponstipulation by all parties". Status of defendants motion for arbitration.

So basically you have all the proof that you did everything you were supposed to, correct?

You need to make that very clear to the court.  Make sure the court knows you are waiting on the other side to do their part.   

At some point either the court will lose patience and dismiss the case, or else the arbitration will close for non payment. And you win 

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On 8/14/2019 at 4:44 PM, syrina said:

well just a quick update as to what is going on. I submitted my answer and midland and for a lack of a better word  they got "pi**ed". The next thing that the law firm did was request to attend court via phone. The judge promptly shot that down. In fact the judge handwrote on the request that "lawyers must be in court for a trial". The midland lawyers sent me a really nasty admit to my guilt package with all of their evidence (last cc statement, and the usual affidavit of the keeping of their records. I know I am going to lose this case, and decided to take out a small 401k loan to get ready to pay this and have a back up for the 2 last debts I have on my name. After that  i am debt free. But now onto the really good stuff. The last 2 debts I have were two syncronicity cards. These cards were sent to none other than midland and also to the same shadey lawfirm i iirrated with my current case. Midland of course decided to sue. Yhe lawfirm put both of the cards into one lawsuit. Oh boy the sync arbitration clause is really nice, I hope they like to pay for everything. I am going to file my answer with a mtc arbitration via the cc agreement, with JAMS. In court the jdb lawyer wants to combine these 2 cards,that does not mean that I have to in arbitration. It is a double whammy for one lawsuit. I am going to start another thread for these 2 new debts. I have enough funds from my 401k loan to cover everything but from here on out this girl wants to really make them hurt.

So did you give up on arbitration in the first case?  What was the outcome of that one?

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10 hours ago, BackFromTheDebt said:

So basically you have all the proof that you did everything you were supposed to, correct?

You need to make that very clear to the court.  Make sure the court knows you are waiting on the other side to do their part.   

At some point either the court will lose patience and dismiss the case, or else the arbitration will close for non payment. And you win 

This looks like this is just a standard hearing on the MTC which has not yet been granted.

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