HELP! Court in 2 days/Being sued by Midland in New York County

[Luzbella]

Please help. Yesterday I received a notice that my court date was being changed to this Thursday. This was my first notice that I was being sued by Midland Funding LLC. I spent all night in these forums trying to figure out how to answer when I had never received a summons or complaint or any communication from them whatsoever. This morning I went to the court to file an answer (it was too late to do so) and long story short the case is being brought up for dismissal on Thursday since apparently it’s been sitting there for over a year. I made a copy of my case file which included  the summons (which again I never received) and a discontinuance from midland’s lawyers. The discontinuance says without prejudice and without fees to either party. My question is what can I do when I return on Thursday to make sure that they cannot sue me again. The statute of limitations is up next October 2020, and I want to be able to sleep at night.

[BackFromTheDebt]

It is rare for a case to be dismissed after sitting around for a year and then re-filed.  It happens, but not very often. 

In the meantime, who was the original creditor, and is this a small claims case?

That is important for you to work out a strategy.  

[Luzbella]

Thank you for your response! The original creditor was Barclays. The court date came from the Civil Court. I don’t see mention of small claims anywhere in the summons they had on file and the postcard from Centre Street. The amount they had sued for was a little over $1,000

[BackFromTheDebt]

That is under the limit for small claims in New York. Meaning they could re-file the case.  

You have a homework assignment.  

Find a copy of the Barclays card agreement on the CFPB web site.  I think they used to have an arbitration clause.  I am not sure if they still do. 

What you need to know is:

1.  Is there an arbitration agreement?

2.  Is the arbitration agreement valid for small claims?

When you have the answers you can devise your strategy.  That is, YOUR strategy, which is what you feel comfortable doing.  

[Luzbella]

@BackFromTheDebt thanks for your guidance. I did look up the agreement. It is dated 2019 which is not what I would have signed back in 2011. There is an arbitration clause but I don’t understand what it states in regards to small claims. I can keep reading into this though. 

As for Thursday, what can I expect may be the possible outcomes and how should I respond? I have no idea what I am walking into or what to expect. If I am looking into arbitration, does that mean I should ask for the discontinuance to be reversed? Or that the case not be dismissed? Or should I just let things proceed without interruption and wait and see if they file again? I am worried about the latter option since I was never informed the first time around and I don’t know that I will have adequate time to get my answer or WTC in order.

Basically, I’d like to know how Thursday is expected to play out.

 

thank you again for taking the time to discuss, I really appreciate it!

Standard_Credit_Agreement.pdf Addendum_to_Standard_Credit_Agreement.pdf

[BackFromTheDebt]

Okay, this is good.  

The arbitration agreement is confusing, which may be why you were confused.  

It doesn’t appear to rule out a MTC from small claims court.  If you had more than two days to prepare, I would suggest filing an MTC with the court and using that as leverage for them to agree to a dismissal with prejudice.  

Instead, probably your best bet is to let the case be dismissed without prejudice.  You may not even have to show up for the hearing.  But you may want to, just to prevent any tricks on their part.  

Essentially, you were never served, so you don’t have a real reason why the case should be dismissed with prejudice.  If you show up but they don’t, you can move the judge on the spot for a dismissal with prejudice, but you probably won’t get one.  Essentially the suit never happened because you were never served.  

If they do show up, expect a dismissal without prejudice.  It may be done by phone.  If the lawyer is there in person, maybe try to talk to the lawyer before the case.  Tell it that if it refiles and actually serves you, you will just file a MTC arbitration and why not save all the mess by agreeing to dismissal with prejudice?  Occasionally this actually works.  Most of the time not, but you never know.  

If the case is re-filed, and you are served, then come back here and learn the arbitration strategy. That will beat them. 

 

Here are the main possibilities: 

1.  You get dismissal with prejudice.  Not likely, but it sometimes happens.  You win.  

2. You get dismissal without prejudice, and they never re-file.  Or they re-file but never serve. Same thing.  These are the most likely options by far.  You win.  

3. Either they convince the judge not to dismiss, or else they re-file.  And this time you are served.  Not likely, but possible. It could happen.  In this case you beat them with the arbitration strategy.  You win.  

I hope this helps.  You don’t need to worry about the case.  You will win.  You only need to actually do some research in case 3. 

[BackFromTheDebt]

I should add:

My wife had a Barclays account she defaulted on.  We just kept hammering with all the collection agencies that we want arbitration, we want arbitration, we want arbitration and can you at least validate the account? 

Eventually they gave up.  Never even sued. 

[Luzbella]

@BackFromTheDebt this is amazing and so encouraging. I’m so incredibly grateful! I was getting really lost and confused but you truly have done a wonderful job simplifying things.

I’ll post after Thursday to let you know how it all goes. 

 

[BackFromTheDebt]

Good luck!

The worst part of fighting debt is the stress and lost sleep.  Things are not as bad as they seem.  Sleep soundly.  

[Luzbella]

@BackFromTheDebt sorry I haven’t had a chance to reply with an update since my court date. Long story short the case was dismissed since the plaintiff was a no-show. Long story is there were about 10 other defendants who had had lawsuits filed against them By Midland funding scheduled to appear on Thursday. The clerk very kindly explained to those of us that did show, that if Midland did not send a representative, the case would be dismissed. It was a pretty nerve wracking hour, waiting and hoping that they wouldn’t appear at the last minute. When we were finally called into the courtroom there were further delays as the clerks and judge got settled, but in the end, all cases with Midland were dismissed. There did not seem to be a good opportunity to approach the judge regarding dismissal with prejudice and she had been quite feisty with another case so I was hesitant to speak out of turn. I also had no opportunity to mention that my case file already had a discontinuance within but we were all given a document signed by the judge with the dismissal information for our records. Since they originally filed the suit in 2017, I’m cautiously optimistic that they won’t bother to file again and actually serve me this time around. If they do, I will come running back to this forum for the invaluable advice. Thank you again for your help in explaining my situation. I know I was one of the lucky ones but I was completely clueless going into this, so I really appreciate your responding to my concerns.

[BackFromTheDebt]

5 hours ago, Luzbella said:

@BackFromTheDebt sorry I haven’t had a chance to reply with an update since my court date. Long story short the case was dismissed since the plaintiff was a no-show. Long story is there were about 10 other defendants who had had lawsuits filed against them By Midland funding scheduled to appear on Thursday. The clerk very kindly explained to those of us that did show, that if Midland did not send a representative, the case would be dismissed. It was a pretty nerve wracking hour, waiting and hoping that they wouldn’t appear at the last minute. When we were finally called into the courtroom there were further delays as the clerks and judge got settled, but in the end, all cases with Midland were dismissed. There did not seem to be a good opportunity to approach the judge regarding dismissal with prejudice and she had been quite feisty with another case so I was hesitant to speak out of turn. I also had no opportunity to mention that my case file already had a discontinuance within but we were all given a document signed by the judge with the dismissal information for our records. Since they originally filed the suit in 2017, I’m cautiously optimistic that they won’t bother to file again and actually serve me this time around. If they do, I will come running back to this forum for the invaluable advice. Thank you again for your help in explaining my situation. I know I was one of the lucky ones but I was completely clueless going into this, so I really appreciate your responding to my concerns.

Glad to hear this.  

If they come back, they will be facing a tiger this time!