Sued by midland funding court 9/4

[Disngkadumasfuc]

Whois the named plaintiff in the suit? Midland Funding

2. What is the name of the law firm handling the suit?  Multiple 

3. How much are you being sued for?  1268

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

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

6. How were you served? (Mail, In person, Notice on door)  Roomate received the notice at door

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?  Called and tried to settle with less.. they offered me $200 off

9. What state and county do you live in?  Fairfax county Virginia 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  7/17

11. When did you open the account (looking to establish what card agreement may be applicable)?  06/2015

12. What is the SOL on the debt? To find out:  3 yrs

13. What is the status of your case? Suit served? Motions filed?  Open, have court 9-4-19

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? 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').  Unfortunately, no.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Warrant, 2 last statements, official paper saying they are selling the account off

 

Hey guys I’ve been doing a lot of research and it seems my best bet is MTC arbitration. ALSO the original store I purchase the items from was HHgreg which is no longer in business and I don’t have the OC agreement and can’t find it online, or is it all the same for “synchrony”. I think I’ve just been shoving so much info into my head for the past few hours and am a little confused. My first step would to go to the set court date and ask for MTC arbitration or should I file before hand. Any help with this would be greatly appreciated. 

[Disngkadumasfuc]

Anyone have the OC agreement for HHgregg so when I file for attribution I know wheather if I can use JAMS or AAA and can print it out and send a copy?

[BackFromTheDebt]

The agreements are found on the CFPB web site 

[Disngkadumasfuc]

On 8/18/2019 at 2:08 PM, BackFromTheDebt said:

The agreements are found on the CFPB web site 

Ive looked even as far back as 2013 and cannot find the OC anywhere. Any other ideas or do you know if all synchrony bank agreements are the same?

[BV80]

26 minutes ago, Disngkadumasfuc said:

Ive looked even as far back as 2013 and cannot find the OC anywhere. Any other ideas or do you know if all synchrony bank agreements are the same?

Did you check the CFPB archives?

[Disngkadumasfuc]

13 hours ago, BV80 said:

Did you check the CFPB archives?

Yes I did all the way back to 2013.. someone please help me as I need it for the MTC..I would assume all synchrony bank OC would be the same just different APR percents?

[Brotherskeeper]

Do you know what your APR was? Here's a Synchrony Bank agreement with a 26.99% APR. The Privacy Policy section indicates "Rev. 3/17." You can compare this 2017 arb provision language to other Synchrony agreements you can find.  

https://etail.mysynchrony.com/cs/groups/public/documents/et_tcdoc/013986.html

 

RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration
  1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or dealers/merchants/retailers that accept the card or program sponsors if it relates to your account, except as noted below.
  2. We will not require you to arbitrate: (1) any individual case in small claims court or your state's equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
  3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
• No Class Actions
  
  YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.
  
  If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court's determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.
• How to start an arbitration, and the arbitration process
  1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
  2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
  3. 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.
  4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.
• Governing Law for Arbitration
  
  This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator's decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator's award.
• How to reject this section
  
  You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section.

 

[Disngkadumasfuc]

I don’t know it. And I’d hate to use another OC and it would be terms for them to get the judgment on false agreement because the APR is different

[Brotherskeeper]

36 minutes ago, Disngkadumasfuc said:

I don’t know it. And I’d hate to use another OC and it would be terms for them to get the judgment on false agreement because the APR is different

You said plaintiff provided 2 statements with the complaint. What interest rate is stated on them? If they claim that isn't the correct agreement, any other Synchrony agreement from 2017 that you've already looked at has the same arb clause, right? 

[Disngkadumasfuc]

On 8/21/2019 at 1:12 PM, Brotherskeeper said:

You said plaintiff provided 2 statements with the complaint. What interest rate is stated on them? If they claim that isn't the correct agreement, any other Synchrony agreement from 2017 that you've already looked at has the same arb clause, right? 

 

Actually your right it is on there it’s 29.99. Should I just find a agreement with matching numbers? Also I just called my local court (Fairfax county civil) and the clerk so that there division of civil and small claims does not do arbitration but has mediation. I told her I wanted to know the rules and file for MTC but she again said they don’t do that and said they do mediation and gave me a number to a local mediator? 

My question now I guess is, is she correct and I cannot MTC?

[Brotherskeeper]

20 minutes ago, Disngkadumasfuc said:

 

 

Actually your right it is on there it’s 29.99. Should I just find a agreement with matching numbers? Also I just called my local court (Fairfax county civil) and the clerk so that there division of civil and small claims does not do arbitration but has mediation. I told her I wanted to know the rules and file for MTC but she again said they don’t do that and said they do mediation and gave me a number to a local mediator? 

My question now I guess is, is she correct and I cannot MTC?

The arbitration provision in credit card contracts is for arbitration in a private forum like American Arbitration Association (AAA), or Judicial Arbitration and Mediation Services, Inc. (JAMS). Court mediation is run by the court system and is not what your motion to compel arbitration would request. Please understand that court clerks cannot give legal advice. They are there to do vital adminisitrative tasks for the court system. 

If you can find a Synchrony card agreement (without "Amazon," "Paypal" or "Gap" or other branding) from the time period that the account was in good standing, with the standard arb provision posted above,  and it has the 29.99% interest rate, I would use it attached to an affidavit. (IANAL) If they say it isn't the correct agreement, they should have to produce the agreement they claim is the applicable one. As your research has indicated, the Synchrony Bank agreements all have the same clause, so how does it help them? 

[Disngkadumasfuc]

32 minutes ago, Brotherskeeper said:

The arbitration provision in credit card contracts is for arbitration in a private forum like American Arbitration Association (AAA), or Judicial Arbitration and Mediation Services, Inc. (JAMS). Court mediation is run by the court system and is not what your motion to compel arbitration would request. Please understand that court clerks cannot give legal advice. They are there to do vital adminisitrative tasks for the court system. 

If you can find a Synchrony card agreement (without "Amazon," "Paypal" or "Gap" or other branding) from the time period that the account was in good standing, with the standard arb provision posted above,  and it has the 29.99% interest rate, I would use it attached to an affidavit. (IANAL) If they say it isn't the correct agreement, they should have to produce the agreement they claim is the applicable one. As your research has indicated, the Synchrony Bank agreements all have the same clause, so how does it help them? 

If they cannot produce the agreement since HHgregg is out of business would that be means of dismissal? 

So just to confirm I would need to send an answer to the court house,  which would by my affidavit and copy of the OC agreement and saying that my affirmative defense is that the court house has no jurisdiction bc of the arbitration agreement found in the OC agreement?

 

sorry for the dumb questions I’m just going off of information I’ve been reading on here

[Brotherskeeper]

28 minutes ago, Disngkadumasfuc said:

If they cannot produce the agreement since HHgregg is out of business would that be means of dismissal? 

Dismissal, as in the judge dismisses the case with prejudice and they leave you alone forever? Sadly for you, no. The debt buyer bought a pool of defaulted accounts which have survived the demise of HHGregg. 

Do you think the 29.99% that's on the cc statements may be a default rate for missed or late payments?

I'm not familiar with Virginia debt collection laws. I believe Fairfax County has requirements for junk debt buyers bringing cases there and what documents need to be attached to complaints. Have you check this site for Virginia members? 

[Brotherskeeper]

Here's an article from 2013 written by a debt collection attorney. I don't know if this is up to date or not. 

Virginia Debt Collection Laws

b. Consumer/Retail Collections
One of the more unusual features of the Virginia legal process is the “return date” system for all cases
filed in the general district courts. Essentially, this means that every single case has to be scheduled for
an initial return hearing date, even if there is no contest or dispute (disputes and trials are identified at the
return date and may be scheduled for later hearings). This procedure is cumbersome for high volume
collection attorneys and requires the scheduling of numerous initial hearing dates and available attorneys.
The return date system applies to all civil cases, including commercial, though commercial cases are
more likely to have higher balances and therefore to be filed in the circuit courts (exclusive jurisdiction
over claims over $25,000).

A significant development that has occurred over the last several years is an increasing scrutiny by the
courts with regard to what claim documentation is needed for a debt purchaser to file suit and obtain
judgment. The so-called “Fairfax Rule” for claim documentation has spread via judicial conferences and is
now followed by the majority of Virginia judges, citing their role as gate keepers of the judicial process.
The documentation required varies somewhat by venue, but the essential elements are: (1) a statement
from the original creditor showing the balance claimed; (2) documentation showing the defendant used
the account; and (3) the terms and conditions or account agreement. In addition, many judges also
require documentation showing that the debt purchaser owns the account (bills of sale, assignments, etc).
Finally, a number of courts are requiring similar documentation on original creditor retail cases, though it
is typically much easier for the original creditor to provide such documents.

[Disngkadumasfuc]

26 minutes ago, Brotherskeeper said:

Dismissal, as in the judge dismisses the case with prejudice and they leave you alone forever? Sadly for you, no. The debt buyer bought a pool of defaulted accounts which have survived the demise of HHGregg. 

Do you think the 29.99% that's on the cc statements may be a default rate for missed or late payments?

I'm not familiar with Virginia debt collection laws. I believe Fairfax County has requirements for junk debt buyers bringing cases there and what documents need to be attached to complaints. Have you check this site for Virginia members? 

To be honest I don’t if it is the default rate or not and I haven’t spoken to any Virginia members of yet. Is there a specific forum for them? Also could I MTC and have an affidavit without the OC agreement?

[Brotherskeeper]

2 hours ago, Disngkadumasfuc said:

 

To be honest I don’t if it is the default rate or not and I haven’t spoken to any Virginia members of yet. Is there a specific forum for them? Also could I MTC and have an affidavit without the OC agreement?

No special place for Virginians. You would use Virginia in the search terms. Here's a law firm article on arb in Virginia:

https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf

[Brotherskeeper]

@Disngkadumasfuc

Here's an actual attorney-prepared motion to compel arb filed in Fairfax County Circuit Court against Chase Bank in 2010:

https://webcache.googleusercontent.com/search?q=cache:grd59hsIJ4cJ:https://www.jdsupra.com/legalnews/motion-to-compel-arbitration-and-stay-pr-74575/+&cd=7&hl=en&ct=clnk&gl=us

[Disngkadumasfuc]

On 8/23/2019 at 4:53 PM, Brotherskeeper said:

@Disngkadumasfuc

Here's an actual attorney-prepared motion to compel arb filed in Fairfax County Circuit Court against Chase Bank in 2010:

https://webcache.googleusercontent.com/search?q=cache:grd59hsIJ4cJ:https://www.jdsupra.com/legalnews/motion-to-compel-arbitration-and-stay-pr-74575/+&cd=7&hl=en&ct=clnk&gl=us

I still cannot for the life of me find a Credit agreement with the arbitration clause from synchrony and HHgregg. I need to file that motion and answer but how can I without the agreement?... 

should I just file my answer as affirmative defense that the court has no jurisdiction in the matter and a MTC without the arbitration clause attached?

 

although midland bought out the debt shouldn’t they still be able to provide me with the original agreement?

[Brotherskeeper]

6 hours ago, Disngkadumasfuc said:

I still cannot for the life of me find a Credit agreement with the arbitration clause from synchrony and HHgregg.

That may be because HHGregg used a standard Synchrony Agreement that wasn't branded "HHGregg," so it may not exist. If all of the agreements you've looked at from any time period from the time you opened the account until default have the same arbitration clause, then you should be safe using one of these with an affidavit. If Midland is going to argue your agreement isn't the correct one and your motion should be denied, they should produce the copy of the one they claim is correct. You can ask for it in very limited discovery if your rules permit. (I am not a lawyer.) You need to check the Virginia rules of civil procedure and the Fairfax County court rules to see if a complaint or defense is based upon a written agreement (aka "instrument"), if a copy of it should be attached or stated within the pleading that a copy is in the possesion of the opposite party.

@fisthardcheese likely addresses this in his arbitration thread. (IANAL) In your Answer, you might consider adding to your arbitration as an affirmative defense section, "attached to the Affidavit of Disngk as Exhibit A, in pertinent part, is a true copy of the applicable arbitration provision of the Synchrony Agreement. Upon information and belief, Plaintiff as the alleged assignee, is in possession of the Agreement, which includes this arbitration provision, that governs this alleged account." If you are too nervous to include a 2017 standard copy of a Synchrony Agreement, this covers the bases. I am not a lawyer and can't give advice on whether this would work for your court or not. 

 

6 hours ago, Disngkadumasfuc said:

although midland bought out the debt shouldn’t they still be able to provide me with the original agreement?

If your court rules don't require it, and you haven't asked for them to authenticate your copy, or asked for production of it in discovery, and then motioned to compel it if they fail to produce it, then no, they don't have to--if the judge allows in other evidence of a contract, like use of the account and/or payments on it as shown by account statements in your name with correct address.   

[fisthardcheese]

If you have a Synchrony Card Agreement from the correct time period and file an affidavit with your MTC that testifies that to the best of your knowledge, this is a true and correct copy of the Card Agreement that the Plaintiff's claims are derived from.  Your sworn testimony in the affidavit can not be overcome by the attorney himself.  The attorney can not testify to the accuracy of the card agreement because he was never a party to the agreement and did not work for Synchrony Bank during the alleged period the account was open.  They would have to have at the very least their own affidavit from someone from Synchrony Bank saying it is the wrong agreement.  But they won't, because Synchrony will just agree it is the correct agreement from that time period.  Therefore, the affidavit is a very strong part of your evidence that essentially makes the "wrong agreement" argument very hard for them to claim.

[Pericles]

It does appear that hhgregg used a generic synchrony agreement during '15-'16.

You can view some version of it from that time period on the internet archive; click Terms & Conditions on this page, which links to the agreement here.