Sued by Midland in Suffolk County, NY

[MIOMH]

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.)

Pressler, Felt & Warshaw, LLP.

3. How much are you being sued for?

Over $18,000.

4. Who is the original creditor? (if not the Plaintiff)

Citibank, N.A (Costco Anywhere Visa Card) before Citibank it was American Express by Costco.

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

Yes.

6. How were you served? (Mail, In person, Notice on door)

In person to my wife.

7. Was the service legal as required by your state?

Yes.

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?

New York, Suffolk County.

10. When is the last time you paid on this account?

Summons states November 28, 2017.

11. What is the SOL on the debt?

I believe 6 years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Answered Summons and Complaint on 07-01-19.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. 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?

I calculated had to be answered by July 15th, since my wife accepted it on June 10th (30 days).

Charges: First Cause of Action (Summarized)
1) Midland has taken assignment of owner Citibank, N.A. (Costco Anywhere Visa Card by C) account number ending in four digits.
2) My name resides within the jurisdictional limits of this court.
3) Plaintiff alleges that I am the responsible person of this account.
4) I failed to repay the balance owed on the account, which is in default.
5) The account was assigned from the original creditor to Midland.
6) Accrued on or about November 28, 2017.
7) The date of last payment is on or about November 28, 2017.
? Upon information the SOL has not expired.
9) There is now due and owing Midland $18,000.

No, interrogatory (questionnaire) was received only the Summons.

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

Just Summons and Complaint. 

Online it shows “Statement of Authorization for Electronic Filing” on 06-10-19, “Affirmation/Affidavit of Service” by Attorney on 06-19-19, “Court Notice” on 06-26-19 and my hard copy “Answer” on 07-01-19 but not viewable yet.

 

I haven’t provided Midland with my answered, yet.  Does that mean the case is closed and a default judgment will be granted to Midland?  If, not should I still provide the attorney my answer via certified mail first class and an Affidavit of Service or will certified mail suffice.

I appreciate all assistance with this matter. 

Thank you in advance.

[Robby8900]

Did you send a copy of your filed answer to Midlands attorney? can you share a copy of your answer that you filed, redacting your personally information.

[MIOMH]

No, I didn't.  That's my I asked my questions on the bottom in my previous post as well as in this post.  Our current has forms for answering, which I uploaded

I haven’t provided Midland with my answered, yet.  Does that mean the case is closed and a default judgment will be granted to Midland?  If, not should I still provide the attorney my answer via certified mail first class and an Affidavit of Service or will certified mail suffice.

I appreciate all assistance with this matter. 

Thank you in advance.

[Robby8900]

i believe that in any case in any state one must send a copy to opposing party. My suggestion, as i am not an attorney is that maybe you should file a motion to compel arbitration and dismiss due to lack of subject matter jurisdiction due to a underlying arbitration clause in the card agreement.or in the alternative stay proceedings pending arbitration. there are other post on this site as to how to draft a MTC  and how they should look.

[MIOMH]

Robby, should I also send request for production with the answer and MTC?

Thanks.

[Brotherskeeper]

@MIOMH This poster is from Suffolk County. @usctrojanalum any thoughts on what MIOMH should do?

 

[Robby8900]

1 hour ago, MIOMH said:

Robby, should I also send request for production with the answer and MTC?

Thanks.

I don't know what you should request, i am not an attorney. Maybe you might seek legal advice from an attorney, on what to request.

[MIOMH]

@Brotherskeeper thank for that post.  I only read the 1st page so far and it is very in line with my situation with the exception that I've been served and already given my answer but it does point out that I should do the MTC before anything.

[Brotherskeeper]

On 7/18/2019 at 12:01 PM, MIOMH said:

3. How much are you being sued for?

Over $18,000.

Expect them to fight hard for $18K. 

Did you list any Affirmative Defenses in your Answer? (An agreement to arbitrate is an affirmative defense.)

If you can locate a copy of the credit card agreement that was in effect when the account was last in good standing (just before default), you can find the terms of the arbitration clause. The Consumer Financial Protection Bureau has a searchable database archive of agreements for each quarter of a year. Unfortunately, you have to download the quarter and search for your agreement alphabetically.  https://www.consumerfinance.gov/credit-cards/agreements/

I am not an attorney. In Shelly7's thread linked to above, she has her draft answer with affirmative defenses, notice of arb demand, with a lot of info exchanged between members. You may have to file an amended answer or file a motion with the court for permission to file an amended answer to include lack of subject matter jurisdiction due to an agreement to arbitrate as an affirmative defense. Since plaintiff did not include a copy of the credit card agreement with the complaint, you may be able to argue that you sought arb as soon as you learned of your right to do so. NY has some specific rules about how you need to notice the other side about your intent to arbitrate the disputes that offer a benefit to you if you do it correctly. It's spelled out in Shelly7's thread. 

 

[MIOMH]

No, I didn't list any of affirmative defense because I didn't discover this website sooner.  Our Court has a form "Written Answer Consumer Credit Transaction".  I chose the Answer (General Denial) and for defenses the only check box that seemed to apply was "I had no business dealings with Plaintiff".

I did find a copy of the cred card agreement online slated 07/13.  I will also look at the link you provided.

Thank you again.  I will continue reading through the Shelly's post.

[fisthardcheese]

Immediately send the attorney a copy of what you have already filed in court!!  Do it right now.

[Guest usctrojanalum]

Hey there,

As some here know, I did assist another member here in drafting a cross motion to compel arbitration after Midland brought a summary judgment motion.

That motion is not going to be decided until early next year, so I don't really have any experience to tell you how that is going to work out. Plaintiff did fight back hard on the arbitration motion though so it was obvious they do not want it granted. 

 

[fisthardcheese]

37 minutes ago, usctrojanalum said:

Hey there,

As some here know, I did assist another member here in drafting a cross motion to compel arbitration after Midland brought a summary judgment motion.

That motion is not going to be decided until early next year, so I don't really have any experience to tell you how that is going to work out. Plaintiff did fight back hard on the arbitration motion though so it was obvious they do not want it granted. 

 

In this case, no MSJ or discovery has taken place.  I think an MTC should be filed as soon as possible. I see no reason that it shouldn't be a typical MTC-arbitration type of case here.

[MIOMH]

@fisthardcheese mailed my answer to Midland's attorney via CMRRR earlier today.

@usctrojanalum thank you for joining.  Your stance is against MTC because you believe that Midland will never have the documents or witnesses to win their claims.  Midland is fighting back at the member does your stance still hold towards against MTC?  I ask because JAMS seems to charge:  "Administrative Fees For two-party matters, JAMS charges a $1,500 Filing Fee, to be paid by the party initiating the Arbitration." 

Can a credit card company elect a specific arbitration provider?  Citibank Costco Anywhere card agreement says that "Arbitration shall be conducted by AAA..."

I know it is difficult for anyone to really say but does it matter which route I dare venture MTC or court, since the amount they're suing me is so large?  Also, does anyone have personal experience/heard/feels which route would be beneficial?

Originally, I started with an American Express Costco then it was changed to Citibank because Citibank won the bid war.  When that transpired, I received a letter from Citibank or American Express (I don't remember which company) that the change has hands was happening and if I did not want to switch over, I had to notify Citibank?  Can I use that in my defense towards Midland that I did not receive a letter about my account being handed to them from Citibank?

[MIOMH]

Also, I am aware that the member that filed MTC Arbitration pro-se consumer was forced to hire an attorney because Midland was fighting back so hard. So, please keep that in mind when answering some of my questions.  

Thank you everyone.

[nobk4me]

Under JAMS consumer rules, the most a consumer has to pay in arb fees is $250.00.

[fisthardcheese]

13 hours ago, MIOMH said:

Your stance is against MTC because you believe that Midland will never have the documents or witnesses to win their claims. 

I read it as he is PRO arbitration because it was clear they want nothing to do with it.  When my opponent wants to avoid something (that I have an absolute contractual right to) like the plague, why would I do them the favor and go with their preferred venue of court?  No way.  I'm using arbitration where they are uncomfortable and unhappy. Every time.

 

13 hours ago, MIOMH said:

I ask because JAMS seems to charge:  "Administrative Fees For two-party matters, JAMS charges a $1,500 Filing Fee, to be paid by the party initiating the Arbitration." 

Not for consumer cases.

13 hours ago, MIOMH said:

Citibank Costco Anywhere card agreement says that "Arbitration shall be conducted by AAA..."

You must use AAA, then.

13 hours ago, MIOMH said:

I know it is difficult for anyone to really say but does it matter which route I dare venture MTC or court, since the amount they're suing me is so large?  Also, does anyone have personal experience/heard/feels which route would be beneficial?

Its actually not difficult for us to say.  Court is a sure loss.  Arbitration is almost a sure win with Midland.  That is my personal experience along with so many others on this board.  Your amount being large means you need to really take the arbitration seriously and do a few things to set yourself up in a better position with AAA and not just sit back and wait for 'things to happen' after court grants your MTC.  But given you are dealing with Midland, you should work out a nice deal in the end.

13 hours ago, MIOMH said:

Can I use that in my defense towards Midland that I did not receive a letter about my account being handed to them from Citibank?

Not really.  But the only defense I would put forth in court is that there is a valid arbitration agreement between the parties and the Supreme Court has multiple case laws showing arbitration must be ordered in such a situation.

13 hours ago, MIOMH said:

Also, I am aware that the member that filed MTC Arbitration pro-se consumer was forced to hire an attorney because Midland was fighting back so hard. So, please keep that in mind when answering some of my questions.  

Thank you everyone.

Not sure what member you are referring to, but dozens of members come here weekly and file a Motion to Compel Arbitration on their own without an attorney. They subsequently get their cases moved to arbitration and eventually dismissed.  Look around and you will see a lot of it.  Start with the link about arbitration in my signature below.  It will give you all of the basics you need to know.

[Brotherskeeper]

17 hours ago, MIOMH said:

Also, I am aware that the member that filed MTC Arbitration pro-se consumer was forced to hire an attorney because Midland was fighting back so hard.

This is not an accurate description of what occurred with Shelly7. She was not "forced" to hire an attorney. After drafting her answer and the notice of intention to arbitrate, she quickly (and wisely) determined she lacked the "intestinal fortitude" to handle this as a pro se. Midland's attorney in her case is a notorious junk debt collection firm. After being sanctioned by the court a few years ago, the firm changed its name to the other 2 partners' names. This firm is not rolling over on her cross-motion to compel arbitration, but has offered a very weak argument (IMO. IANAL). Attorney Usctrojanalum's informed opinion on what Midland usually offers up as evidence in NY courts notwithstanding, he is absolutely onboard for the arb strategy in Shelly7's $3400 case.

You're being sued for $18K, no one can say what OC account documents were transferred upon the sale. 

[fisthardcheese]

3 hours ago, Brotherskeeper said:

the firm changed its name to the other 2 partners' names

Ahh, that must be Colder and Snowflake ... or whatever the Hannah rejects are called.

[MIOMH]

I apologize for my ignorance on the matter but currently my case status is Pre-RJI, therefore no judge has been appointed.  When I file a MTC Arbitration or as someone mentioned a motion to change my answer with the court who approves/deny/view?

 

[MIOMH]

As I mentioned my answer was given using my courts forms and there's even a section for making motions.
http://www.nycourts.gov/courthelp/GoingToCourt/motionsOSC.shtml

The section "Making a Motion" a has form to fill out but there's section I do have information as Part, Room, etc.
http://www.nycourts.gov/courthelp/pdfs/forms/NoticeOfMotion.pdf

Should I just avoid using the DIY forms from my court?

[Brotherskeeper]

50 minutes ago, fisthardcheese said:

Ahh, that must be Colder and Snowflake ... or whatever the Hannah rejects are called.

Formerly known as Co hen and Slam O Witz.

[MIOMH]

Hello everyone,

Current time 2am and waking up in 2 hours that should be wonder for my production at work, well it hasn't been well due to the Midland dark cloud hovering over me...

First, I want to say everyone on this forum is great.  I've been reading countless post the past few days and you guys are awesome...professional, patient and partipate many.  I applaud everyone for helping us novices out.

Well, now to the main topic.  I want to apologize for this long post, questions and the attachment.

I wrote my MTC and Proposed Order from @fisthardcheese template in Arbitration Strategy mixed with some other tidbits I found.  Also, attached is the credit card agreement.  I'm hoping can review them and give their blessings or any modifications I should make.  I have a few question as well.

1) #2 sending letter to attorney electing arbitration w/AAA and requesting dismissal Exhibit A.  Is that an informal letter with that one line or a modification of the wherefore?
2) #3 Do I attach the entire CC agreement or just section 11 that deals with Arbitration?
3) #4 I only have two statements from the Arbitration Agreement instead of the five that @fisthardcheese list because his sample agreement is different then mine. Should I comb through it once more to add more statements? I tried searching for similar verbage in the agreement.
4) #5 and #6, I left as is but should I append or replace with the case laws that @Brotherskeeper provided in a different post?
5) I asked before but in case it was overlooked:

As I mentioned my answer was given using my courts forms and there's even a section for making motions.
http://www.nycourts.gov/courthelp/GoingToCourt/motionsOSC.shtml

The section "Making a Motion" a has form to fill out but there's section I do have information as Part, Room, etc.
http://www.nycourts.gov/courthelp/pdfs/forms/NoticeOfMotion.pdf

Should I just avoid using the DIY forms from my court?

No pressure but I was hoping to get the ball rolling tomorrow/today, if not I guess you can call me Mr. Friday.

Thank you again for your insight and to all a good night/morning

 

NY Case Laws.txt Proposed Order-Draft.doc Costco Anywhere Visa Card by Citi Card Agreement.pdf MOTION TO COMPEL-Draft.doc

[fisthardcheese]

3 hours ago, MIOMH said:

1) #2 sending letter to attorney electing arbitration w/AAA and requesting dismissal Exhibit A.  Is that an informal letter with that one line or a modification of the wherefore?

If this were me, I would skip this step and just omit it from the MTC.  Your card agreement does not require prior notice, so it is an unnecessary extra step.

3 hours ago, MIOMH said:

2) #3 Do I attach the entire CC agreement or just section 11 that deals with Arbitration?

Entire agreement

3 hours ago, MIOMH said:

3) #4 I only have two statements from the Arbitration Agreement instead of the five that @fisthardcheese list because his sample agreement is different then mine. Should I comb through it once more to add more statements? I tried searching for similar verbage in the agreement

What you have is all that is needed.

3 hours ago, MIOMH said:

4) #5 and #6, I left as is but should I append or replace with the case laws that @Brotherskeeper provided in a different post?

I would add as many case laws from your state or Federal district as I could find.  The more case law the better.

3 hours ago, MIOMH said:

Should I just avoid using the DIY forms from my court?

It's up to you.  The more important thing is to find your Court's rules and see if motions require you to schedule a hearing or not.  If it does, you need to ask the Clerk for a hearing date when you file it.

 

Most importantly -- is this in a small claims court?

[Brotherskeeper]

3 hours ago, fisthardcheese said:

If this were me, I would skip this step and just omit it from the MTC.  Your card agreement does not require prior notice, so it is an unnecessary extra step.

@fisthardcheese NY rules have a nifty burden-shifting provision that--if executed correctly--precludes plaintiff from objecting to arb if they receive a notice of intent to arb and don't apply to stay the arb within 20 days. This notice (per usctrojanalum) has to be sent to the plaintiff directly CMRRR, with a copy to the plaintiff's attorney. 

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 7503. Application to compel or stay arbitration;  stay of action;  notice of intention to arbitrate

(c) Notice of intention to arbitrate. A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. Notice of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Service of the application may be made upon the adverse party, or upon his attorney if the attorney's name appears on the demand for arbitration or the notice of intention to arbitrate. Service of the application by mail shall be timely if such application is posted within the prescribed period. Any provision in an arbitration agreement or arbitration rules which waives the right to apply for a stay of arbitration is hereby declared null and void.