Beachykeen

Being Sued by Midland Credit in Florida ~ Please help

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1. Who is the named plaintiff in the suit?

MIDLAND FUNDING

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

It seems to be in-house lawyers for Midland Funding

3. How much are you being sued for?

$2496

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

Comenity Bank/HSN

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.

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

Yes. And he was quite nice.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I honestly didn't see anything via mail. As far as I know, it was just calls to my cell phone.

9. What state and county do you live in?

Florida, Bay County (Fourteenth District)

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

Apparently February 2017

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

November 2014

12. What is the SOL on the debt? To find out:

4 years.

Statute of Limitations on Debts

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

We had a pre-trial conference, where the judge suggested we retire to a room to mediate; however, we were at an impasse.

Because of this, a trial date was established for July 24, in judge's chambers.

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

No. Once HSN stopped sending letters, I'd forgotten all about it.

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?

No, no questionnaire that I saw. 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

This is what's listed (they sent me a huge packet of documents):

* Original Creditor Statements

* Assignment/Bill of Sale/Seller Data Sheet

* Letters to Defendant

Basically, several credit card statements from HSN, along with three letters from Midland Funding that I never received. 

They also included:

* Notice of Filing Documents in Support of Entry of Final Judgment

* Plaintiff's Notice of Introducing Documents at Trial and Witness List

* Plaintiff's Notice and Motion for Records Custodian Witness to Appear By Telephone at Trial

* Plaintiff's Motion to Continue Trial

(In the Plaintiff's Motion to Continue Trial, they state that they have opened a "dispute investigation and will be mailing a request for additional information and documentation to the Defendant to support her claim" (my claim was that the balance and date of last payment was incorrect). To date, 3 days before the court date, I've received no such request)

18.  How did you find out about this site?

I searched for information on being sued by Midland and this seemed to be the most helpful and insightful forum. ❤️

18. Read these two links:

I did, but I'm not sure if my refusal to settle at mediation constituted a waiver of my right to arbitration.

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I do realise that I'm terribly late in addressing this. If it helps, I do believe that I can file things online via Florida's E-File Portal. I created an account to do so just moments after creating this topic here.

If there's no action I can reasonably take, legally-wise, may I ask for guidance in perhaps speaking to MCM and requesting a payment plan? 

In regards to assets they might attach, my name is only on a very elderly truck worth less than $900 and a joint checking account that, if I'm understanding Florida Statute 655.79, is considered tenancy by entirety and therefore exempt from attachment/garnishment.
http://www.leg.state.fl.us/statutes/index.cfm?mode=View Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=655.79&URL=0600-0699/0655/Sections/0655.79.html

I do not have an employer ~ rather, I do have an Etsy shop and a business account in my name. 

I did try to log in to their website to see what my option WRT to payments and they didn't even have an option for me to pay the entire amount online. 

I really and truly and whole-heartedly appreciate any guidance and help you might give me. Thank you so much for your time!! ❤️

 

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5 minutes ago, Robby8900 said:

Is there a arbitration clause in the contract or written agreement?

 

I do believe this is what I agreed to when I opened the account in 2014. x

arb2.JPG

arb1.JPG

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8 minutes ago, Beachykeen said:

I do believe this is what I agreed to when I opened the account in 2014. x

arb2.JPG

arb1.JPG

There ya go, if it were me personally, i would file a motion to compel contractual arbitration, and dismiss, or in the alternative to stay pending arbitration pursuant the written agreement.

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16 minutes ago, Robby8900 said:

Is there a arbitration clause in the contract or written agreement?

 

The problem is FL is the one state where you do NOT file an answer if.you want.to arbitrate. You file a MTC instead. Given there is already an answer and a pre-trial hesring where it was not raised it is likely too late and the OP waived their right to arb under FL law.

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1 minute ago, Clydesmom said:

The problem is FL is the one state where you do NOT file an answer if.you want.to arbitrate. You file a MTC instead. Given there is already an answer and a pre-trial hesring where it was not raised it is likely too late and the OP waived their right to arb under FL law.

But I didn't file anything ~ we went to a room to mediate and reached an impasse. Or does that count as waiving my right to arbitration? Which is exactly what's got me terrified. :(

ETA: At the time, I was told that our conversation wasn't in an official capacity. Which is why I was a bit stumped when I saw that in their Plaintiff's Motion to Continue Trial they stated that at the pre-trial conference, I disputed the amount.

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1 minute ago, Beachykeen said:

But I didn't file anything ~ we went to a room to mediate and reached an impasse. Or does that count as waiving my right to arbitration? Which is exactly what's got me terrified. :(

i would file the MTC  and see how it goes you have nothing to loose, and justice requires it.

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Just now, Robby8900 said:

i would file the MTC  and see how it goes you have nothing to loose, and justice requires it.

Might you know if I run the risk of incurring arbitration costs should I lose? I read somewhere that it can run anywhere between $750 and $2k ~ which I assume is why turning to arbitration often (according to what I've read) disuades JDB from pursuing further.

My fear is that if we went to arbitration, I might lose. :(

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8 minutes ago, Clydesmom said:

The problem is FL is the one state where you do NOT file an answer if.you want.to arbitrate. You file a MTC instead. Given there is already an answer and a pre-trial hesring where it was not raised it is likely too late and the OP waived their right to arb under FL law.

I saw this via https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution/Mediation-in-Florida#Advantages to mediation 7

Does that not mean that arbitration is still an option? x

arb3.JPG

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That is court mediation which you have already done. Private contractual arbitration is very different and in FL you have to MTC it instead of answering the suit.

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22 minutes ago, Clydesmom said:

That is court mediation which you have already done. Private contractual arbitration is very different and in FL you have to MTC it instead of answering the suit.

I am genuinely not trying to be obtuse ~ does that mean that my attending the hearing/pre-trial/mediation, I essentially waived my right to arbitration?

Would filing a MTC be an utter waste of time?

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1 hour ago, Clydesmom said:

The problem is FL is the one state where you do NOT file an answer if.you want.to arbitrate. You file a MTC instead. Given there is already an answer and a pre-trial hesring where it was not raised it is likely too late and the OP waived their right to arb under FL law.

You can file an answer if you don’t engage in further litigation. The 

Thus "[t]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver." Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976). It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992).

In a case factually similar to the case at bar, this court held that the filing of an answer two months prior to filing the motion to compel arbitration did not constitute waiver. Benedict v. Pensacola Motor Sales, Inc.,846 So.2d 1238 (Fla. 1st DCA 2003)(see Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999).  In that case, the defendant's counsel had not received a copy of the contract which contained the arbitration clause at the time the answer was prepared and served. However, based on a review of the case, it is hard to imagine how the party opposing arbitration could have been prejudiced simply because the answer was filed two months before the motion to compel arbitration, absent any other participation in the litigation. Id.

@fisthardcheese

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1 minute ago, BV80 said:

You can file an answer if you don’t engage in further litigation. The 

Thus "[t]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver." Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976). It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration, Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992).

In a case factually similar to the case at bar, this court held that the filing of an answer two months prior to filing the motion to compel arbitration did not constitute waiver. Benedict v. Pensacola Motor Sales, Inc.,846 So.2d 1238 (Fla. 1st DCA 2003)(see Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999).  In that case, the defendant's counsel had not received a copy of the contract which contained the arbitration clause at the time the answer was prepared and served. However, based on a review of the case, it is hard to imagine how the party opposing arbitration could have been prejudiced simply because the answer was filed two months before the motion to compel arbitration, absent any other participation in the litigation. Id.

Oh, thank you, BV80! x

May I ask if you know if I lose at arbitration, will I be responsible for the arbitration fees? Also, might I ask if filing the MTC this late in the game is even a possibility? I do seem to have the ability to e-file via the Florida Courts E-File Portal, if that matters. 

Also, would I still attend the July 24th court date, or would the MTC essentially stall things?

Again, thank you so much for your help! xo

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4 minutes ago, Beachykeen said:

Oh, thank you, BV80! x

May I ask if you know if I lose at arbitration, will I be responsible for the arbitration fees? Also, might I ask if filing the MTC this late in the game is even a possibility? I do seem to have the ability to e-file via the Florida Courts E-File Portal, if that matters. 

Also, would I still attend the July 24th court date, or would the MTC essentially stall things?

Again, thank you so much for your help! xo

I don’t think you would be responsible for the fees, but fisthardcheese would know more.  Hopefully, he’ll be here today or in the morning.

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Just now, BV80 said:

Oh, yes ...I did worry that my lateness and/or that I attended a mediation/pre-trial conference constituted a waiver of my right to arbitration, though. 😕

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@BV80

Might you know if I'm too late in filing a MTC? My court date (in judge's chambers) is July 24th, the day after tomorrow. 😕 

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1 minute ago, Beachykeen said:

@BV80

Might you know if I'm too late in filing a MTC? My court date (in judge's chambers) is July 24th, the day after tomorrow. 😕 

I honestly don’t know.  I would still write it up and file it or bring it with me.  Hopefully, that’s another question fisthardcheese can answer.  

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Did you file an answer at all?  Anything that denied all their allegations in writing?

I would type up an MTC using the template in the link in my signature.  When you attend court, you want to cite the Supreme Court case law in that template which states that if there is a valid agreement between the parties to arbitrate, that arbitration is to be the preferred method.  You would ask the judge to stay this case and order the parties to arbitration per the underlying Card Agreement contract.

Bring the Card Agreement in with you that includes the arbitration section.  Bring 3 copies of the Motion and the Card Agreement.  1 for the judge, 1 for the attorney and one for you to reference.

If the attorney attempt to bring up the debt or any other aspect of the case, you should object and politely state that according to the Supreme Court, if This Court finds that there is a valid agreement to arbitrate between the parties, then all other issues are for the arbitrator to decide only.  This means that with your MTC the ONLY issues the judge should decide on is if the agreement to arbitrate is valid.  Which, if they somehow say you don't have a valid card agreement, then you would ask them to show proof that you don't have a correct copy.  They won't have it, or if they have another agreement it should also have an arb section anyway.  If anything happens that you are unsure of, such as the judge asking if you have something you don't have or a question you can't answer, ask the judge for a little time to find that. Ask for another 30 days.   That is always a last ditch effort to extend it and come back here to re-group if needed.

1 hour ago, Beachykeen said:

Might you know if I run the risk of incurring arbitration costs should I lose? I read somewhere that it can run anywhere between $750 and $2k ~ which I assume is why turning to arbitration often (according to what I've read) disuades JDB from pursuing further.

My fear is that if we went to arbitration, I might lose. :(

Midland does not even deal with arbitration.  Once the court orders them to go there, they will want to agree to a complete dismissal.

According to the card agreement and the JAMS rules, Midland is the one on the hook for all of the arbitraiton fees.  You pay nothing.

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1 minute ago, fisthardcheese said:

Did you file an answer at all?  Anything that denied all their allegations in writing?

Nothing in writing. In the mediation, I did admit it was my debt BUT that I disputed HSN/Comenity's records and the balance owed.

Supposedly, that was in confidence and I was told it wouldn't be considered evidence or testimony, but it somehow ended up being alluded to in their Plaintiff's Motion to Continue Trial.

I would type up an MTC using the template in the link in my signature.  When you attend court, you want to cite the Supreme Court case law in that template which states that if there is a valid agreement between the parties to arbitrate, that arbitration is to be the preferred method.  You would ask the judge to stay this case and order the parties to arbitration per the underlying Card Agreement contract.

Bring the Card Agreement in with you that includes the arbitration section.  Bring 3 copies of the Motion and the Card Agreement.  1 for the judge, 1 for the attorney and one for you to reference.

If the attorney attempt to bring up the debt or any other aspect of the case, you should object and politely state that according to the Supreme Court, if This Court finds that there is a valid agreement to arbitrate between the parties, then all other issues are for the arbitrator to decide only.  This means that with your MTC the ONLY issues the judge should decide on is if the agreement to arbitrate is valid.  Which, if they somehow say you don't have a valid card agreement, then you would ask them to show proof that you don't have a correct copy.  They won't have it, or if they have another agreement it should also have an arb section anyway.  If anything happens that you are unsure of, such as the judge asking if you have something you don't have or a question you can't answer, ask the judge for a little time to find that. Ask for another 30 days.   That is always a last ditch effort to extend it and come back here to re-group if needed.

The credit card agreement I've got was one that I found online ~ it's the most recent one they've got on their website. I no longer have the original one I agreed to back in 2014. 😕

Midland does not even deal with arbitration.  Once the court orders them to go there, they will want to agree to a complete dismissal.

According to the card agreement and the JAMS rules, Midland is the one on the hook for all of the arbitraiton fees.  You pay nothing.

Is filing using JAMS better than AAA? x

I couldn't tell, really, if Comenity agreed to pay the arbiter's fees. 

I absolutely CANNOT thank you enough. I'd offer to name my next born after you, but I'm afraid the factory's closed for business. xo

 

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@fisthardcheese

Does this look okay for my MTC? 

Again, thank you SO VERY much for your help!! It's really and truly appreciated!! ❤️

(I'll have a copy of the card agreement printed in triplicate, as you said, along with my MTC in triplicate as well. But may I ask, as I'm going to be seeing them in person on the 24th, do I still needs send things via CMRR?)

And may I ask what I should say should the judge tell me and my MTC to sod off (my lack of confidence is in ME, not what you're telling me to do)? Do I just try to make some sort of payment plan with MCM, then?

_____________________________________________________________________________________________________________________________________________________________

IN THE COUNTY COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN

AND FOR BAY COUNTY, FLORIDA

CASE NO.:  

 

MIDLAND FUNDING, LLC,

Plaintiff,

vs.

BEACHYKEEN.,

Defendants. _______________________________________/

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

AND TO STAY PROCEEDINGS PENDING ARBITRATION


COMES NOW the Defendant, BEACHYKEEN, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about April 24, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on July 22, 2019, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


THEREFORE, Defendant respectfully requests that this Honorable Court compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.



Respectfully submitted this day July 22, 2019


BEACHYKEEN, Defendant, pro se

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@fisthardcheese

I'm so sorry to be a pest, but is there a way to file the JAMS form electronically? I'm afraid if I send it off via post, it won't be received by anyone until after my court date. 😕

ETA: Well, I'm an utter arse. I asked and typed before I used my brain.

I'm so sorry about that!! ❤️

 

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42 minutes ago, Beachykeen said:

@fisthardcheese

I'm so sorry to be a pest, but is there a way to file the JAMS form electronically? I'm afraid if I send it off via post, it won't be received by anyone until after my court date. 😕

ETA: Well, I'm an utter arse. I asked and typed before I used my brain.

I'm so sorry about that!! ❤️

 

Don't worry about JAMS.  You have a court hearing in 1 day.  You need to get an MTC typed up in triplicate and preferably an affidavit testifying to the "true and correct copy" of your card agreement you will be submitting with it.  Court issues must be done NOW.  JAMS is down the road.

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1 minute ago, fisthardcheese said:

Don't worry about JAMS.  You have a court hearing in 1 day.  You need to get an MTC typed up in triplicate and preferably an affidavit testifying to the "true and correct copy" of your card agreement you will be submitting with it.  Court issues must be done NOW.  JAMS is down the road.

But I don't know if it is a true and correct copy ~ it's literally just what I downloaded from the internet from the Comenity/HSN website. 😕

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