cibach

Received letter from Eaton Attourney in LA

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received a letter dated 07/24/2019

current creditor Midland Funding 

original creditor synchronny bank

it is a basic letter stating to contact them(Eaton) within 30 days to dispute or they will assume debt is valid

 

What should I do? I have read a lot of topics on here on how to deal with them but I am not very legal savy..

 

Thank you

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1 hour ago, cibach said:

What should I do?

Wait until about 3-5 days before the 30 days the letter is dated on and mail a debt validation letter to the law firm.  This buys you a little time but will not delay the inevitable.  Midland will sue you.  The good news is Synchrony has the best arbitration clause of all the creditors.  Research what the Louisiana courts require as far as filing an answer once you are sued and how to invoke your right to arbitration.  Louisiana law is  a bit different than they other states in that it is based off French law(s) not English law so you need to make sure you follow what is required based on that.

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Buying some time by waiting until almost the 30 days, then demanding validation, is a good idea.  

If you do it that way, it will probably be at least 2 months before you are sued.  Maybe even a little longer, but don't count on it.

That gives you some time to do your homework.

Quite a few people have beaten Midland by using the arbitration strategy.  That means, they file a Motion to Compel arbitration (MTC).  

As @Clydesmom mentioned, the laws in Louisiana are different from the other 49 states.  You need to find out what is required for an answer, etc.

Your homework is two parts:

1.  Investigate your state laws as to how to file an answer, and how to file and possibly schedule a motion.  Note that the court procedures might even vary from parish to parish.  (For example, in my state, which has its own weird laws, the court procedures vary from county to county.  My particular county has unusual court procedures, different from any other county in the state).  

2.  Read up on the arbitration forum.  See what others have filed to get arbitration.  Learn from it.  

You have from now until the deadline for a return to do your homework.  If you do your homework, you will probably win the case.  

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I filed an answer, I include an affirmative defense , then filed a MTC with a memorandum in support of my MTC. I filed them at the same time ,  the MTC required a court date.

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thank you for the responses .. is there a certain validation letter I need to use ? or is just a generic version. 

 

clydesman you mention that arbitration is the best for Synchrony , if they don't own the debt does that matter ?

 

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8 hours ago, cibach said:

thank you for the responses .. is there a certain validation letter I need to use ? or is just a generic version.

 

clydesman you mention that arbitration is the best for Synchrony , if they don't own the debt does that matter ?

 

Just a short and sweet letter will do fine:

"Dear Attorney,

I dispute this debt and demand validation.

Sincerely

Cibach"

Just remove the quotes and replace whatever you need. Realize that validation is a real low bar to get over for debt buyers. They cannot repeat what they said but they do not have to supply a ton of stuff that some internet letter claim you can request. It just has to be a simple letter stating who the OC is and that they have done their due diligence and that you are the correct debtor.

As to your 2nd question, when a debt buyer purchases a debt, the step into the shoes of the original creditor. They obtain the rights of the original creditor but also the responsibilities. That means that if the original creditor forced arbitration in it contracts, the debt buyer must also abide by the arbitration clause. In this case, Midland has taken the place of Synchrony. They have the rights that Synchrony had but they also have the responsibilities that Synchrony had too.

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another question.. would it best to allow midland to sue and then go to arbitration or should I call midland to work out a payment plan before that it goes to court

 

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You probably will not get a good settlement right now if you try to call them because they will think they have you on the ropes and that you have no negotiating power. However deeper you get into arbitration, the less likely it is you will want to settle. You can call and see what the offer is and decided to take it or not. I would wait for the validation however before calling them.

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On 8/1/2019 at 12:10 PM, WhoCares1000 said:

You probably will not get a good settlement right now if you try to call them because they will think they have you on the ropes and that you have no negotiating power. However deeper you get into arbitration, the less likely it is you will want to settle. You can call and see what the offer is and decided to take it or not. I would wait for the validation however before calling them.

No.  Don't pay them a dime.  Don't even spend the $5 on certified mail.  Midland is lightweight.

I beat Midland (also Synchrony accounts) by doing nothing more than sending an email.  Sent it to their corporate executives/compliance officer, disputing the debt and demanding arbitration.  Also simultaneously disputed with the CRA's.  Within a week, had a deletion on all three CRA's and letters from Midland stating they were closing the accounts.

PM me if you'd like their contact info.  

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It wasn't about whether or not they were in compliance.

It was about sending a message--that, if they chose to sue me, they would be in for a battle that would cost them many times the alleged debts.

Emailing executives/compliance personnel has been very successful for me--both for getting CRA deletions and getting paid for FDCPA violations.  Hell, it's even worked wonders in dealing with issues regarding cell phone service, cable, etc.

It's all about being aggressive.  Searching for the names of compliance/executive personnel on LinkedIn or other similar sites has worked wonders.

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19 hours ago, pulpfiction0 said:

It's all about being aggressive.

But if there were no violations, I'm trying to understand what your angle is.  If you're just bluffing, and they call it like Unifund just did to another member here, what's your plan B?

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My 'angle' was simple: to show that I am an aggressive advocate of my rights and will cost them far more than anything they would ever recover against me.

Had they sued, they would have immediately been faced with a MTC and would have also received a summons for FDCPA violations (again, I know that the theory of filing suit after receiving a letter electing arbitration hasn't YET been shown to be a violation, but frankly I don't care).  

When sending letters like this, I always invite the opposition to check out my name on PACER and my state court's website, as well.  The dozen or so cases I've filed against various creditors tends to send a signal.

Is this a guarantee of success?  Of course it isn't.  However, it damn well beats rolling over and filing a Chapter 13BK.  I'm fighting $60k+ in charge-offs, and after two years have beaten every creditor except for one, and that was settled quite favorably.  Not to mention that I just settled with a CA for various violations, which will be worth about 1/3 of the debt that I wound up settling.

In the end, it (usually) isn't about being right.  It's about refusing to back down.

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4 hours ago, pulpfiction0 said:

to show that I am an aggressive advocate of my rights

But if they haven't violated your rights.....

4 hours ago, pulpfiction0 said:

I always invite the opposition to check out my name on PACER and my state court's website, as well.
...
In the end, it (usually) isn't about being right.

The terms for what you are is "vexatious litigant".  I'm guessing that eventually a company with deep pockets, like Midland, is going to tire of your harassment.  Especially because you are publicly mocking them for going easy on you, and are almost certainly violating NDAs.

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33 minutes ago, Harry Seaward said:

But if they haven't violated your rights.....

The terms for what you are is "vexatious litigant".  I'm guessing that eventually a company with deep pockets, like Midland, is going to tire of your harassment.  Especially because you are publicly mocking them for going easy on you, and are almost certainly violating NDAs.

The law is not completely settled on whether filing a court case after election of arbitration is an FDCPA violation or not.  

True, there is no case law backing it up.  OTOH, I am not aware of any case law saying it is NOT a violation.  If there is any, please let me know.  At least there wasn't in the old days when I used to use this strategy years ago and it worked well.

 

If there are bona fide violations, and @pulpfiction0  has been aggressively suing, most debt collectors will want to shy away.  Web Recon even provides lists to its members of people to avoid.  I remember, there was a law firm that had lost to me twice.  At one point they got third case against me.  They contacted me.  I called them up and reminded them of who I was.  They dropped that account like a hot potato.  

 

The strategy of sue-a-lot is riskier these days, because debt collectors are a lot more careful.  In the old days, there were ALWAYS violations, and often TONS of violations, by the time any case got to court.  But those were the old days.

Would an election of arbitration in a DV letter be sufficient for Midland to forego suing?  Maybe, maybe not.  Would it hurt to try?  I don't think so.  

I agree with sending a notice along with the 

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23 minutes ago, BackFromTheDebt said:

Would an election of arbitration in a DV letter be sufficient for Midland to forego suing?  Maybe, maybe not.  Would it hurt to try?  I don't think so. 

I agree. That's not where i was going, though. @pulpfiction0 flat out said he/she doesn't care whether or not the other side has committed violations. That's a dangerous suggestion and the consequences should be explained when discussing it on a DIY credit repair message board. 

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6 hours ago, pulpfiction0 said:

Had they sued, they would have immediately been faced with a MTC and would have also received a summons for FDCPA violations (again, I know that the theory of filing suit after receiving a letter electing arbitration hasn't YET been shown to be a violation, but frankly I don't care).  

The FDCPA is not a mechanism for matters governed elsewhere by state and federal law. Bentrud v. Bowman, Heintz, Boscia & Vician, P.C.,794 F.3d 871, 875 (7th Cir. 2015).

Arbitration in credit card agreements is governed by the FAA (“governed elsewhere by state and federal law”).   According to the federal law, the proper procedure after a refusal to arbitrate is to file a MTC.  

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6 minutes ago, Harry Seaward said:

I agree. That's not where i was going, though. @pulpfiction0 flat out said he/she doesn't care whether or not the other side has committed violations. That's a dangerous suggestion and the consequences should be explained when discussing it on a DIY credit repair message board. 

That is true.  If you sue over a violation, there should be at least some indication it is a real violation.  Even a borderline violation is good.

Things can really blow up in your face if you don't handle the courts properly.  I had that happen to the tune of between $1000 and $2000 once, when the judge didn't like the way I was handling a case and threw in sanctions.  We all know about a certain fellow who wound up with over $60,000 in sanctions against him because he got stupid and cocky.  

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22 minutes ago, BackFromTheDebt said:

We all know about a certain fellow who wound up with over $60,000 in sanctions against him because he got stupid and cocky.

In his limited defense, there was no shortage of people on these boards egging him on. 

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On 8/3/2019 at 10:29 PM, Harry Seaward said:

But if they haven't violated your rights.....

The terms for what you are is "vexatious litigant".  I'm guessing that eventually a company with deep pockets, like Midland, is going to tire of your harassment.  Especially because you are publicly mocking them for going easy on you, and are almost certainly violating NDAs.

Should I have just rolled over and paid?  Or, better yet, have been forced into a Ch13 plan that would have eaten up every last cent of disposable income I'd have?

In the end, it's a business decision.  Midland backed down because they knew I'd cost them far more than the pennies on the dollar they spent on my accounts.  Just like it was a business decision to default on my cards. 

Call me a vexatious litigant...that's fine.  At least I'm doing something about my credit issues instead of just rolling over to the JDB's and (nearly as evil) BK attorneys. Yes, one must exercise a degree of caution before actually filing suit, and I always do.  I've never faced any sort of sanctions motion, nor have I ever had attorneys fees awarded against me.

The bottom line is that getting oneself out if a credit mess involves being aggressive.  Period.  I got myself out of the infamous NAF/MBNA/Wolpoff & Abramson mess years ago by being relentlessly aggressive.  I got myself out of a potentially huge Amex judgment by being aggressive.  Didn't get a win there, but very decent monthly payments I can manage.  Otherwise my wages would have been garnished and there would be a lien on my property.

One can 'play nice' and get stomped on. I choose to fight.  Between about a dozen credit-related lawsuits and arbitrations, in addition to misc. other companies like my cell phone provider, cable, Samsung (tv warranty dispute), I've yet to have one less than positive outcome.  No, I haven't always won, but the end result has been significantly better than had I done nothing.  

Bottom line is that being aggressive pays (not to mention, it's an adrenaline rush).  The Arb card alone is a huge part of that.

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On 8/3/2019 at 8:45 PM, BV80 said:

The FDCPA is not a mechanism for matters governed elsewhere by state and federal law.

Maybe sometimes it is.  State law governs the procedural defense of statute of limitations.  Yet a defendant isn't limited merely to asserting the SOL as an affirmative defense, she also can file an FDCPA complaint - many of which have been successful.

 

On 8/3/2019 at 8:45 PM, BV80 said:

 Bentrud v. Bowman, Heintz, Boscia & Vician, P.C.,794 F.3d 871, 875 (7th Cir. 2015).

Arbitration in credit card agreements is governed by the FAA (“governed elsewhere by state and federal law”).

As I've mentioned before, the Bentrud opinion states ,  "If Bentrud is concerned about Bowman-Heintz resuming litigation after he elected arbitration—a procedural oddity, at worst—his remedy sounds in breach of contract".

The opinion doesn't state that Bentrud is limited to filing a motion to compel, but rather that he has a cause of action in breach of contract.  That is the remedy recommended in the precedent opinion, regardless of damages.

 

On 8/3/2019 at 8:45 PM, BV80 said:

  According to the federal law, the proper procedure after a refusal to arbitrate is to file a MTC.  

The availability of one remedy doesn't necessarily exclude the availability of some other remedy.

Yes, Bentrud is governing precedent in the 7th Circuit.  But there is not yet even any circuit split.  Consider this case.  The opinion is not consistent with Bentrud.

Remember the circuit history of delegation. There was a lone circuit decision for over 4 years before there finally was a split, and then another, and then another before it bubbled up to the supreme court and ended with Rent-A-Center.

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1 hour ago, pulpfiction0 said:

The bottom line is that getting oneself out if a credit mess involves being aggressive.

A, it was your own mess, as was mine and virtually everyone else that comes here looking for credit repair advice.  B, you're not just talking about being aggressive. What you are describing is prohibited activity. That your opposition has chosen to let it slide for whatever reason doesn't change the fact that you've violated court rules in cleaning up a mess that you created.

Again, to each their own, but it's irresponsible to make these sorts of suggestions without also explaining the serious risks that accompany them. 

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1 hour ago, Pericles said:

Maybe sometimes it is.  State law governs the procedural defense of statute of limitations.  Yet a defendant isn't limited merely to asserting the SOL as an affirmative defense, she also can file an FDCPA complaint - many of which have been successful.

I understand that fact.  I believe many of us have encouraged consumers to file counterclaims when the FDCPA has been violated.  

 

1 hour ago, Pericles said:

Yes, Bentrud is governing precedent in the 7th Circuit.  But there is not yet even any circuit split.  Consider this case.  The opinion is not consistent with Bentrud.

Destro’s (this case) claim was based upon a MTC after a lawsuit had been filed.  That’s what you previously pointed out in this post, https://www.creditinfocenter.com/community/topic/331150-demand-for-arbitration-lvnv/?do=findComment&comment=1381631

“However, since Bentrud, there have been many FDCPA cases that have survived a motion to dismiss based upon ignoring an "election" of an arbitration clause after a lawsuit has been filed.”

In addition, his claim was based on this:

We first look at whether the plaintiff has stated a claim for a violation of the FDCPA on the grounds that the defendants improperly prolonged the collection action litigation against the plaintiff. Specifically, the plaintiff alleges that the defendants required the plaintiff to file a motion to compel arbitration after receiving no response from the defendants and then required him to attend an unnecessary, and ultimately uncontested, hearing on the motion. The defendants argue that this conduct alleged does not amount to a violation of the FDCPA. We disagree.”

While some such claims have survived a motion to dismiss the claim that refusing to arbitrate after a lawsuit has been filed is an FDCPA violation, I know of no ruling that declares it to be a violation. 

OIn regard to this thread, the following was stated:

On 8/3/2019 at 5:34 PM, pulpfiction0 said:

Had they sued, they would have immediately been faced with a MTC and would have also received a summons for FDCPA violations (again, I know that the theory of filing suit after receiving a letter electing arbitration hasn't YET been shown to be a violation, but frankly I don't care).  

The poster’s claim is based upon electing arbitration before a lawsuit has been filed.  

Whether the election of arbitration is before or after a debt collection lawsuit has been filed, the FAA provides a remedy for a refusal to arbitrate.  Until a court rules that a refusal to arbitrate is an FDCPA violation, I cannot and will not suggest that consumers have a right of action under the FDCPA.

 

 

 

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1 hour ago, Harry Seaward said:

A, it was your own mess, as was mine and virtually everyone else that comes here looking for credit repair advice.  B, you're not just talking about being aggressive. What you are describing is prohibited activity. That your opposition has chosen to let it slide for whatever reason doesn't change the fact that you've violated court rules in cleaning up a mess that you created.

Again, to each their own, but it's irresponsible to make these sorts of suggestions without also explaining the serious risks that accompany them. 

Good points. 

I was really aggressive.  I wiped out over $100,000 in unsecured debt and probably got slightly more in settlements for violations than I paid out in debt settlements.  I took on the two companies that cannot be beaten in arbitration and beat both of them.  I also got some $ from Zee attorney for one of the cards.  I did some things that were borderline nuts. 

One of my tactics was I usually filed in court or arbitration against the attorneys who filed against me.   Not something to do unless there are real violations   I didn’t make much money off of that.   Maybe broke even with filing fees and losing some money to sanctions once.  But it dissuaded law firms from ever dealing with me again.    

I did make a few mistakes, and the mistakes cost me.  I overplayed or misplayed my hand a few times   

Also, in those days violations were more common.  I always had real, bona fide violations.

In some cases the violations were tenuous.  Other times they were egregious.  And I am in the 7th Circuit and this was before 2015, so no case law on whether threats of filing suit was an FDCPA violation or not.  

Aggressive can be good, but it can backfire.  Some have done very well being far more aggressive than I was. Others crashed and burned.  

Just remember— if you want to play aggressively, realize the risks as well as the potential benefits. If you claim violations which are tenuous, you are at least in better shape than making stuff up out of thin air.  We don’t recommend that, even though it often works, because it is a highly unethical practice which can backfire spectacularly.  

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