SeeUinCourt

JDB (Midland) wouldn't Settle, So I elected Arbitration- Texas

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So I posted my answer and it was shot down the other day. It totally killed the fight in me made me rethink my tactics on fighting this as there is so much info on the web my brain was going to explode because I don't know what to do. My husband recently filed for bankruptcy and his attorney said I should try to settle with them for 20%. Next I sought out my own lawyer and had a consult and they said asking for a bill of sale won't matter, claiming arbitration won't matter, all midland have to do is give a sworn statement that they bought the debt and its mine and they would get a judgment against me. They said they would try to settle for me. I told them if that's all they planned to do then I could do that on my own.

I called the attorney who filed against me, but I got the answering machine and didnt leave a message. I was going to try and settle at 20% and tell them i don't work, no bank accts, cars, ect are in my name. My house is homestead and exempt. So either they can settle and be done or take me to court get a judgment and in a yr I'll be filing bankruptcy and they wont get a dime from me.

But then I was like well what if I can get this dismissed and I wont have to deal with them at all and no money out of my pocket. What tactics can I truly use on midland. Ugh... I have til Monday to file my answer or to call and settle, but I know if I try to settle and they dont accept im basically admitting to the debt and they win. What would you do?

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Settlement discussions cannot be used in court so they cannot use the fact that you wanted to settle as proof that the account is yours. If the courts allowed settlement discussions to be used as evidence, there would be no settlements and the courts would grid to a halt (settlements are the oil in the machinery of the civil courts as plea deals are the oil in the machinery in the criminal courts). If you are that worried, then when you call, you can state that "I do not admit that the account is mine but in the interest of saving time and money, I would be interested in settling." Large companies do it all of the time so why not you.

As for arbitration, you only got one opinion. I would suggest posting your information on this board and get the opinion of those who have successfully done arbitration before deciding whether that will work in your case or not.

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2 hours ago, WhoCares1000 said:

Settlement discussions cannot be used in court so they cannot use the fact that you wanted to settle as proof that the account is yours. If the courts allowed settlement discussions to be used as evidence, there would be no settlements and the courts would grid to a halt (settlements are the oil in the machinery of the civil courts as plea deals are the oil in the machinery in the criminal courts). If you are that worried, then when you call, you can state that "I do not admit that the account is mine but in the interest of saving time and money, I would be interested in settling." Large companies do it all of the time so why not you.

As for arbitration, you only got one opinion. I would suggest posting your information on this board and get the opinion of those who have successfully done arbitration before deciding whether that will work in your case or not.

Many attorneys still don’t know much about arbitration.  It is not what they do.  Attorneys are geared towards courts and settlements.  

Whether you can use arbitration depends on several factors.  

1.  Is there an arbitration agreement.  If no, then you can’t arbitrate.  Skip the rest. 

2. If you are in small claims court and there is a carve out for small claims, you can’t arbitrate.  Skip the rest.  

3. If you are in Florida, you must send in an MTC instead of an answer for arbitration.   If you already answered without an MTC you probably can’t arbitrate 

4. In other states you are can arbitrate. 

You need to post your information.  Specifically, 

who is the OC

what State is this?

what type of court?

the approximate amount?

You can find the credit card agreement online at the CFPB web site.  

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@BackFromTheDebt

They are suing for two claims one is from Synchrony and the other for Comeity Bank.

I live in Texas.

Court is at JP

Total amount is 4110. 

On the other post I was told I might have to argue arbitration here in Texas. Not even sure what I would say. 

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Well I called and they passed me around like a hot potato and sent me to the debt collection side with a random representative after I asked numerous times for an attorney.  I said like @WhoCares1000 suggested.. "I do not admit that the account is mine, but in interest of saving time and money I would be interested in settling the account for 20%". The lady said we can not do that. I said ok thank you. Then she started asking for a good telephone number and I hung up on her lol. So I guess court is my only option now. I will file my answer on Thursday. Now do I claim arbitration or not? The attorney who filed the claim is on Maternity leave and that firm is located 5hrs away from me. Do you think they are going to call in or send some random rent-a-lawyer to the court case?

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10 minutes ago, SeeUinCourt said:

Now do I claim arbitration or not?

Yes.  Claim it.  If the court denies a motion to compel arbitration you can then file a motion to do discovery.  If you file the motion to do discovery first you run the risk that the courts rule you waived your right to arbitration.

11 minutes ago, SeeUinCourt said:

The attorney who filed the claim is on Maternity leave and that firm is located 5hrs away from me. Do you think they are going to call in or send some random rent-a-lawyer to the court case?

They will do one of two things:  send an associate of hers and try a bundle of cases all on that day or hire a local yokel firm to handle it.

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@Clydesmom  if I use this template what should I say exactly and where do I put it? Sorry I'm super lost on arbitration. I've read the section, but I read so much that day everything is jumbled and I honestly cant compute it. Makes me feel stupid. lol

 

For your answer use the same format as the Plaintiff's Original Petition that you were served with the court and case information on top of the page.

DEFENDANT'S ORIGINAL ANSWER

Comes now, <your name>, the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following:

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence.

II. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that <he or she> is justly entitled to.

<Your name, address and phone number>

File it with the court immediately and send a copy to the attorney's office that filed the lawsuit.

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You really need to understand how to do arbitration because one misstep and it is default judgement. @fisthardcheese can help you with the arb part and @texasrocker can help you with the finer points.

The first thing I would do is find the agreements since they are using one action to sue on 2 separate accounts. They can be found on the CFPB website. Synchrony for sure has an ironclad arb clause. I am not sure of Comeity Bank does or not but I would think they probably do. Make sure you get the ones that were in force on the date of default on the account. As for your answer, you need to include as an affirmative defense that the court does not have subject matter jurisdiction because according to the contract, the dispute must be resolved in private arbitration. Since you have until next Monday to answer, if you take until Friday afternoon to fine tune things, that will be fine. Once the answer is filed with the court and served on the plaintiff, you then file a Motion to Compel (MTC) to force the plaintiff into arbitration for each account. You will need to fill out an affidavit stating that they card agreements you have are the true copies and where you got them from. You will need to attach the card agreements to the MTC. That will be filed with the court and then served on the defendant.

Also, while you wait, you need to get the JAMS (or in the case of Comeity Bank, AAA if the contract requires that forum) forms ready, one for each card. This way, if the plaintiff says you are not serious about arbitration, you can show the court the forms and that you are waiting for the court to decide if they will compel or not. I would divide up each card into 2 separate arbitration cases because they are 2 accounts, not one. If the plaintiff does not like that (because of the added cost), they can appeal and pay the extra fees during arbitration (although I doubt they will). If the court approves your MTC, you can then file with the correct forum and then wait until the decide to follow you into arbitration (highly unlikely) or offer to dismiss the case which then, you are in the driver seat.

Since they would not settle over the phone, you can offer the attorney $500 to settle at the courthouse at the MTC hearing since that is what arb will cost you to get started. If they complain you offered higher earlier, tell them that was before you had to expend all this effort.

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@WhoCares1000 My synchrony acct was established in 2016 and went into default 2018. Its for Paypal Credit. I used the CFPB website and they don't have paypal credit it was never an issued card so its not a mastercard or anything. I found one for paypal credit but it has 6/19 on it "FR833282333 PAYPAL CREDIT CARD PLCC TC PDF WF1217331A 6/19" that's what the agreement has on the top right corner. So I would need one from 2018? How do I find it? I googled but it doesn't pull up anything. Same with Comenity Bank its for a Victoria Secret acct that was open 2014 and defaulted in 2017 "81686I040  (11/18)" is what is on the upper right corner when I see their agreement. They do both have the arbitration clause so that is good.

Also the motion to compel is there a template on that somewhere on this board? Thanks in advance!

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@Fisthardchesse should be able to help you more in this.

You need the 2018 agreement for Paypal and the 2017 agreement for Victoria Secret. Since you are making the motion, you need to find the agreement. I would take the last agreement before the default (which means if there is a 2017 Paypal agreement, grab that. If they say that was not the agreement in force, make they prove it). Same for Victoria Secret.

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Did they combine two different accounts into one lawsuit?  This is the 3rd case I have seen this month where the JDB combined accounts like this.  This is a weird new trend.

You need to file an MTC and in it, I would ask for two separate arbitration cases according to the card agreement language.

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@fisthardcheese Yes they combined two claims in one. I am going to print out two separate JAMS for each claim like @WhoCares1000 suggested. The MTC I copy and pasted right above your response is that a good one to give to the court or should I reword it? Also is the ANSWER I pasted above good and the right wording for Arbitration? Thank for y'all help! I really appreciate it! 

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1 hour ago, SeeUinCourt said:

@fisthardcheese Yes they combined two claims in one. I am going to print out two separate JAMS for each claim like @WhoCares1000 suggested. The MTC I copy and pasted right above your response is that a good one to give to the court or should I reword it? Also is the ANSWER I pasted above good and the right wording for Arbitration? Thank for y'all help! I really appreciate it! 

You should completely re-do that MTC.  I would make two separate sections for each of the Card Agreements and describe what gives the authority in each of the contracts to make two separate arbitration cases.  Both the Comenity and the Synchrony card agreements should have both AAA and JAMS listed in them.  I would put in my MTC asking for one to be ordered to arbitrate with JAMS and the other to be arbitrated with AAA.

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@fisthardcheese @WhoCares1000 @texasrocker

I've ran into a dilemma!!! With my Paypal Credit account. It was opened in 2014 and defaulted in 2018. Synchrony Bank did not own Paypal Credit until June 2019. I called Synchrony to see if I could get the agreement and they said I had to talk to Paypal and then I called Paypal and they said they gave everything to Synchrony so they should have it. I called Synchrony back and they said that the 2018 credit agreement for Paypal Credit would fall under the credit agreement they have now that's dated for 6/2019.

So now I am not sure what I do because the date is 2019 and not 2018 on the agreement and Paypal claims they do not have a credit agreement. Is my arbitration claim scrapped and should I fight them on ownership of the account. For my Victoria Secret acct I found everything I need for arbitration. Or should I hit them with arb for Victoria Secret and then fight them on ownership for Paypal credit? 

 

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You could argue that because they combined both cards, they whole case is stayed pending arb on the Victoria Secret card unless they want to dismiss this action and file 2 different cases.

If Paypal handled heir own credit cards prior to 2019, there has to be an agreement somewhere and I am sure Paypal used an arb clause. You could file your answer while you try to figure this out and file your MTC next week. That would give you time to find the agreement.

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Here is an undated agreement from PayPal's website that you can use, they call for use of AAA:
https://www.paypal.com/us/webapps/mpp/ua/cashcard-agreement?locale.x=en_US

Since they use The Bancorp Bank in the agreement above, you can argue that the agreement was before the sale to Synchrony on 3 July 2018 (articles abound based on a Google Search). I would also search The Bancorp Bank and Paypal on the CFPB site.

Also, It looks like PayPal is claiming that the sale to Synchrony closed on 3 July 2018 so if you defaulted after that, you might be able to argue that the Synchrony agreement applied at that time.

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@WhoCares1000 The paypal credit doesn't issue a card bearing the name Mastercard ect. Its only something you can use online if an online store happens to accept paypal then you can check out using paypal and select to use paypal credit as an option instead of your bank acct at check out. So I never had an actual card for that acct. The card Default date in their claim is 2/4/2018. So its a few months before Synchrony takes over. 

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The thing is, there has to be an agreement somewhere and you have to find it, even if you need to search day and night. Search your files if you must or any emails you might have saved. I doubt Paypal would offer credit without an agreement and I doubt Paypal, who has been the subject of many class action suits because of their practices, would not have an arbitration clause in any credit agreement.

Here is a list of their agreements for the USA:
https://www.paypal.com/us/webapps/mpp/ua/legalhub-full

Maybe what you need in somewhere in there.

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I have searched everywhere for the past few days and couldn't find one. That's why I called Paypal and Synchrony yesterday and neither of them were any help. I think I'm just gonna have to scrap arbitration and go for proof of ownership. 😩

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I would still argue that the whole case should be stayed pending the resolution of the Victoria Secret card in arbitration since they decided to file both accounts as one case. The alternative is that they dismiss this action without prejudice and them file for each account separately. They tried to save money and it came to bit them in the rear end.

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9 hours ago, SeeUinCourt said:

@WhoCares1000 The paypal credit doesn't issue a card bearing the name Mastercard ect. Its only something you can use online if an online store happens to accept paypal then you can check out using paypal and select to use paypal credit as an option instead of your bank acct at check out. So I never had an actual card for that acct. The card Default date in their claim is 2/4/2018. So its a few months before Synchrony takes over. 

Why can’t you use the user agreement on the PayPal website?

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@BV80 I can get one, but its for June/2019

https://www.paypal.com/us/webapps/mpp/ppcterms

The paypal website is citing Synchrony terms and agreements which technically they didn't own Paypal credit when I defaulted in 2/18. I cant find an old agreement from Paypal Credit that dates 2018 almost everything either pulls up Synchrony's agreement dated 6/19 or it just talks about them taking over PP credit. That's why I called them, but they were a dead end too. 

I need to file my answer tomorrow since its due Monday. I'll do what @WhoCares1000 suggested and hit them with arbitration for one and ownership for the other. 

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