TexasGirl8002

Help! Tried to file MTC Arbitration in Texas Justice Court and was told I had to have an attorney!

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I'm not sure how much detail is required so please bear with me.

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.) Chase Hague, Attorney for Midland Funding, LLC, Houston TX

3. How much are you being sued for? $8,708.64

4. Who is the original creditor? (if not the Plaintiff) JCPenney/Synchrony Bank

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

6. How were you served? (Mail, In person, Notice on door) I came home to the document taped to my front door. I also had a copy in my mailbox.

7. Was the service legal as required by your state? Yes. It appears that I was served legally.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

9. What state and county do you live in? Smith County, Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They say June 2017

11. When did you open the account (looking to establish what card agreement may be applicable)? July 2016

12. What is the SOL on the debt?: 4 years

13. What is the status of your case?  I was served on 06/11/2019, I filed an answer with the court on 06/24/2019 (general denial) and I claimed the arbitration and award affirmative defense. At that time I was given a hearing date of 08/26/2019. Today, 07/09/2019, I filed a Motion to Compel Arbitration and a sworn affidavit with the Synchrony credit card agreement attached highlighting the arbitration clause. 

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?  No.

16. How long do you have to respond to the suit? I had until June 25th, 2019 and I filed an answer on June 24th, 2019

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

  1. Affidavit of Stephanie Bruemmer relating to damages and business records
  2. Copies of credit card statements dated June 30th 2017, November 30th 2017 and December 29th 2017
  3. Bill of Sale Midland (ENFS)-PLCC Fresh-January 2018
  4. Purchase Price Reconciliation/Funding Instructions (Forward Flow Accounts Purchase Agreement) 
  5. Certificate of Conformity Under NYS CLS CPLR § 2309(c) and NYS CLS RPL § 299-a

When I went to file my MTC Arbitration with the Justice Court today, the clerk very haughtily informed me that I would have to hire an attorney to compel arbitration. She stated that I could not do that on my own. She then asked me if I actually read the arbitration clause and I affirmed that I had. The clause that she was referencing is under the subheading: How to start an arbitration, and the arbitration process: paragraph 3, which states, "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."

My understanding, after reading the clause, is that I DO NOT have to hire an attorney to compel arbitration. It states that arbitration administrator ( AAA or JAMS) will appoint the arbitrator and that one of the stipulations is that the arbitrator has to have ten years of legal experience. Am I wrong about this? The clerk filed my motion but did not set a hearing date and emphatically insisted that, "we just don't do that here!"  

I have attached a copy of the arbitration clause in full.

 

 

Please help. Any information is greatly appreciated! Thank you!1401548805_SynchronyCCAgreement.thumb.PNG.dc9216b2d15c9d9d519492d9daf93197.PNG

 

 

image.png

Synchrony CC Agreement.PNG

Edited by jenn8002
Multiple attachment with same information

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The clerks you speak to in courts are not permitted to give legal advice.  Only procedural advice.  Sometimes they don’t know what they are talking about. 

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Anything you file must have a copy sent to the plaintiff’s attorney. 

And file what you need to file.   

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I went online to check the status of my case. Next to the trial date that was set when I filed my answer (08/26/2019) by judge 2:00 pm it says 'canceled.' Does this mean my MTC was honored? Or do I need to call and set a hearing date for the MTC? 1936864928_RegisterofActions.thumb.png.6c3a349a67382e3ada00353c9cc9f8d0.png

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2 hours ago, TexasGirl8002 said:

I went online to check the status of my case. Next to the trial date that was set when I filed my answer (08/26/2019) by judge 2:00 pm it says 'canceled.' Does this mean my MTC was honored? Or do I need to call and set a hearing date for the MTC? 1936864928_RegisterofActions.thumb.png.6c3a349a67382e3ada00353c9cc9f8d0.png

You did send plaintiff, a copy of your filed answer and MTC, correct? It looks like they are going to hold your motion hearing on 8/26/2019 where it shows ''other''. The apparent trial by judge was cancelled which seems strange, going straight to trial after answer filed.

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I am sending by certified mail today. I was not able to get to the post office in time to mail the documents yesterday. Yes, whenever I filed my answer on 06/24/2019, the clerk gave me the file stamped copies of my answer and told me that I had a trial date set for 08/26/2019.

Also, Along with my MTC, I filed an affidavit swearing that I had a true and correct copy of the credit card agreement attached. Should I send a copy of the credit card agreement to the Plaintiff's attorney since it is referenced 'Exhibit A' in the affidavit? Some posts suggest that sending the actual agreement could give the attorney  'ammunition.'

 

 

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1 hour ago, TexasGirl8002 said:

I am sending by certified mail today. I was not able to get to the post office in time to mail the documents yesterday. Yes, whenever I filed my answer on 06/24/2019, the clerk gave me the file stamped copies of my answer and told me that I had a trial date set for 08/26/2019.

Also, Along with my MTC, I filed an affidavit swearing that I had a true and correct copy of the credit card agreement attached. Should I send a copy of the credit card agreement to the Plaintiff's attorney since it is referenced 'Exhibit A' in the affidavit? Some posts suggest that sending the actual agreement could give the attorney  'ammunition.'

 

 

what ever you filed send a copy of. Exhibit ''A'' is a part of your MTC  and further stated in your affidavit

.

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***Update

 

Filed the Motion to Compel Arbitration on 07/09/2019.

Mailed the Midland Funding Attorney a certified copy on 07/10/2019

Realized that I attached the wrong year Synchrony Bank credit card agreement to MTC Arbitration.

Received via mail, 07/10/2019, an order granting a stay pending private/contractual arbitration.

 

I will now initiate arbitration according to the credit card agreement. How can I fix my error of filing the incorrect credit card agreement. I filed one for June 2018. The account was originally opened July 2016 and the alleged charge off date for the card was December 29, 2017. Is this fixable since the MTC has been granted?

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I do not have a redacted copy of the MTC that I filed. I might be able to upload the Word Document and redact the information if it's just the verbiage you are wanting to see. Otherwise, I  can try and upload the actual redacted copy on Monday.

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9 hours ago, TexasGirl8002 said:

No. They do not appear to be any different.

Then don’t worry about the difference in credit card agreements.  The arbitration agreement is what matters. 

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Your MTC was granted.  They did not object to the card agreement you used.  File in JAMS with that card agreement.  It is now the "correct" one either way.  :) 

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***Update

08/05/19

I received correspondence from the Midland Funding attorney. I received an Order Dismissing Case and a Motion to Dismiss Case and Notice of Nonsuit along with instructions to file with the court.

However, the order is to dismiss WITHOUT prejudice. I'm pretty sure the goal is to dismiss WITH prejudice. Any advice is much appreciated.

Edited by TexasGirl8002
Grammatical errors.

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1 minute ago, TexasGirl8002 said:

However, the order is to dismiss WITHOUT prejudice. I'm pretty sure the goal is to dismiss WITH prejudice. Any advice is much appreciated.

You won.  It is over let it go.  There is NO way to re-open the case and force them to dismiss with prejudice.  Chances are zero they come back and try again.

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I realized my update left out some important information. On 7/19/19, I sent the Midland attorney a letter stating my intent to elect arbitration and the completed demand forms. Per the green return receipt they received it 7/23/19. I also mailed the demand for arbitration and the other required documents to JAMS via certified mail on 7/23/19, which was received 7/25/19. The attorney for Midland filed the dismissal without prejudice on 7/26/19. Is that permissible once arbitration has commenced?

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5 hours ago, TexasGirl8002 said:

I realized my update left out some important information. On 7/19/19, I sent the Midland attorney a letter stating my intent to elect arbitration and the completed demand forms. Per the green return receipt they received it 7/23/19. I also mailed the demand for arbitration and the other required documents to JAMS via certified mail on 7/23/19, which was received 7/25/19. The attorney for Midland filed the dismissal without prejudice on 7/26/19. Is that permissible once arbitration has commenced?

No.  I am pretty sure they did this in contrast to the court rules.  Did the court grant the dismissal already?  I would have opposed the dismissal citing the court rule for stipulating and note to the court that they did not attempt to confer and reach any stipulation with me prior to filing their dismissal and state that I am willing to stipulate to a dismissal WITH prejudice.  However, if the court already granted the dismissal, it may require a different kind of motion.

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11 hours ago, Clydesmom said:

You won.  It is over let it go.  There is NO way to re-open the case and force them to dismiss with prejudice.  Chances are zero they come back and try again.

You know this is highly inaccurate.

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2 hours ago, fisthardcheese said:

You know this is highly inaccurate.

It isn't but you have no experience in TX courts to know that.

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@fisthardcheese

I believe the court has indeed granted the dismissal. I looked at the Register of Actions for my case and it shows on 08/05/2019 Motion for Non Suit was filed. Also, it shows 08/05/2019 Dismissed by Plaintiff before hearing.

 

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