Midland Funding Suit HELP Arbitration or Discovery ?? TEXAS

[texasbbj]

Basic Info

Midland Funding Sued for account purchased from Synchrony Bank Amazon Account that I do not have believe is mine

Attorneys for Midland in Houston at a PO BOX 46058 one being Peter Newman.  They had a local attorney from this area

show up in court  with the offer to settle for $2800.00  which apparently about $1800 in principal and the rest in interest.

Purchase agreement from Synchrony to Midland Aug 4, 2017 and delivered to seller by buyer on March  28, 2018.  

It appears the charge off by Synchrony on this account,  occurred in Feb 2018 which does not fall in line with the purchase agreement dated Aug 4 2017

Original opening date for the account was stated for 2010 with Amazon.

Suit filed June 11 this year by Midland.  I responded with a General Denial and sent copy to Midland and filed with court in required time frame.

Their local attorney was nice, offered full settlement (before court) which I rejected as I do not believe this account is mine and needed proof.

I requested a continuance to seek legal advice and discovery and that was granted by the local JP Court in Texas.

My next court date is set for middle November.

 

My question is whether to pursue a defense of Arbitration of go thru the discovery route.  Usual papers in their court documents with copies

of the billing only, and shows last payment in August 16 2017.

I have no papers of any of type or bank statements etc, as I was a victim of Hurricane Harvey in Rockport, Texas and lost everything, home, papers

vehicles, RV, etc with the flood that occurred.

I can provide more info if needed regarding their court papers.

Just would like some referrals as to what direction to proceed at this point.

 

Thanks in advance

 

[texasbbj]

I see views, but no help suggested or opinions.  Am I missing the correct way to request or am I missing info??  I will gladly provide if I can.

[Brotherskeeper]

On 10/4/2019 at 9:53 AM, texasbbj said:

I requested a continuance to seek legal advice and discovery and that was granted by the local JP Court in Texas.

Did you consult with an attorney? If so, what was the result?

Why do you believe this is not your account? Were you the victim of identity theft? Did a family member open this in your name?

I'm very sorry for the losses you suffered due to Harvey. Does Midland know about this? A few of our members have contacted Midland to discuss hardship and have had Midland back off:

Article 2: Hardship

"Consumers Who Are Servicemembers, Victims of Natural Disasters, or Who Are Experiencing Medical Issues, Job Loss, or Other Hardships

-We actively seek to identify active duty servicemembers and stop collections from those servicemembers.

-We suspend collection activities when a consumer demonstrates that he or she is experiencing significant financial hardship due to medical issues.

-We suspend collection activities when a consumer is a direct victim of a natural or other catastrophic disaster.

-We cease collection activities when we receive documentation indicating that the consumer’s only source of income is from exempt sources, such as Social Security or Supplemental Security Income benefits, and that the consumer has access to no other assets. We work with and are sensitive to consumers who encounter unforeseen circumstances, such as job loss."

 

Have you contacted the bank that you used during this time period to get copies of your bank statements? 

The arbitration clause in the Synchrony agreement has been used by many posters here against Midland suits. You need to read Texas threads here and read your rules of civil procedure to see if arbitration is waived if it isn't included in your Answer. @texasrocker 's posts have a great deal of info. 

 

[texasrocker]

3 minutes ago, Brotherskeeper said:

You need to read Texas threads here and read your rules of civil procedure to see if arbitration is waived if it isn't included in your Answer. @texasrocker 's posts have a great deal of info. 

The only reason it could be waived in Texas is if one has already participated in discovery.  

[texasbbj]

Thanks for the input.

I have not participated in Discovery.

The Judge gave me a continuance and said I must file discovery if I want to go that route.

I have not filed any discovery as I have since read the info pertaining to the arbitration here.

I have read the arbitration info, but was advised by someone to start my own post and request assistance with the specifics that I provided above, and that is what I have done.

I have not contacted a attorney.  I have no money to do so, as I am on SS only.

I believe it was a family member that opened the account but I have not proven that. 

I will reread the threads again but I have limited access to the internet at this time as I do not have it at home and very limited with my phone plan 

due to costs vs my SS income.

 

Thanks again

 

[Brotherskeeper]

@texasbbj You may qualify for assistance by a senior or low income legal aid group. The public library may be a good place to do some research. Many attorneys will give a cursory consult without a fee. 

This is from the Midland Consumer Bill of Rights page, Hardship section I linked to. It appears you qualify. Why not call them to discuss?  "Contact Us (800) 296-2657 

-We suspend collection activities when a consumer is a direct victim of a natural or other catastrophic disaster.

-We cease collection activities when we receive documentation indicating that the consumer’s only source of income is from exempt sources, such as Social Security or Supplemental Security Income benefits, and that the consumer has access to no other assets. We work with and are sensitive to consumers who encounter unforeseen circumstances, such as job loss."

 

If you have the wherewithal to prepare a MTC arb and pay the filing fee, that's probably your best bet if you don't want to call Midland. You'll need to understand your court rules for how and when to file a motion, and whether you need to schedule a hearing for the motion. There are Texas threads here that have helpful info. 

[fisthardcheese]

If you have read the arbitration information, then you know that you need to file a Motion to Compel arbitration.  I would do that immediately.  This is how you beat midland.

[texasbbj]

Thank you!  I will do that.

[Brotherskeeper]

 

[texasbbj]

Updates

I do have some assets that they can attach to.

My income is limited to SS but wanted to try this route at this time before any contact to them.

I did apply for legal aid, but as of yesterday, still not heard if approved.  They say under review.

I did upgrade my internet for this month and have read, read, and read, took notes and tried to get this 70 yr old brain to take all this in

and come up with a gameplan before its too late.

I prepared by MTC Arbitration for court with the info from the 2016 CC agreement which I obtained from the gov website per examples found here.

I had my statement for the CC agreement to be valid, notarized and attached as exhibit A.

I prepared my letter to the attorney for Midland and requested arbitration and sent that certified and attached a copy as exhibit in MTC as exhibit B.

Presented all those to the court clerk, received date and time stamp copies of all the above.

I believe I am now suppose to send the attorney a copy of the court MTC but wanted to confirm that with you all. ******

I believe I am suppose to send that certified as well.******

 

So thats where I am at.

I would appreciate confirmation of by question on sending the court MTC to  the attorney and if there is anything else I should do at this point.

I believe that I an NOT to apply to Jams until I receive the court approval/stay.

I am not sure if I am to send their local attorney who showed up in court any of this as well, or just the Midland Att on file.

 

Thanks to all for the advice and thanks to all who have come before me and left a great trail of bread crumbs to follow!

 

 

[fisthardcheese]

Did your MTC include a certificate of service page?  You do need to send a copy of everything and anything you file in court to the Plaintiff's attorney. This includes the MTC and all exhibits with it.

No need to file or send anything to JAMS at this point, however, printing off and filling out the Demand Form and having copies to take to court with you are always a good idea, just in case it comes up that you are not serious or intend to file and are just using this as a stall tactic.  You can show the judge and attorney that you are ready to file with JAMS immediately upon the granting of your MTC.

[texasbbj]

Yes, I added the Registered return receipt number on the MTC.

I will send the attorney copies of the court papers on Monday.

I already have the Jams forms downloaded and ready.?

 

Thanks fisthardcheese!!

[texasbbj]

I received a notice today from the Justice Peace Court and a court date was set for Nov 7th 

It states its a hearing on my motion to compel/private contractual arbitration

Pursuant to a motion filed by me.

 

What will happen at court??

Need some good advice and what to expect.

 

Thanks in advance.

[fisthardcheese]

You can expect the attorney to make a few baseless claims as to why arbitration should not be allowed. You just need to have the case laws ready to cite which will slam the door shut on any opposition they try to make.

The first thing I would do is check the court rules to see how long the other side has to respond to a motion.  I would have that rule ready to cite and say that they did not object to your motion within the time limit of [cited rule number] and that you object to any untimely oppositions they try to raise at the hearing and ask the judge to grant your motion as unopposed.  However, I would assume the judge will let them be heard anyway.  So, then you just have to show that there is clearly a valid agreement to arbitrate between the parties and all of the overwhelming case laws state that if a valid agreement exists, then arbitration is the preferred resolution method and must be ordered.

[texasbbj]

OK thanks.   I will try and find the  case laws to support and check on the time limit.

[texasbbj]

Update

Got the case law support (thanks to those that helped)

Went to court today.

Attorneys for Midland no showed.

Judge approved MTC and will send letter to validate.

This is a very small JP court and he did not seen well versed in the procedure but non the less, was approved.

I asked what the time frame for Midland to respond to a  motion....he just said court today was the time frame.  ??

I did call the court clerk last week as well and asked the same question....and she said that was what court was for??

So from what I have learned....I think....

I should now go ahead and file my Jams and pay the $250.

And wait for them to contact Midland attorney.

Question:   Do I send copy of Jams to the attorney?

                   Do I need the court doc with approval to send it with Jams app.

 

Thanks for everyones help here!   

First good night sleep tonight in a while!

 

If I am off track, please let me know.

[Impress]

Others here will chime in, but maybe first contact the lawyers and let them know MTC was approved, but you will be willing to do a mutual walk away with prejudice before you file with Jams.  Also check your arb clause.  Some of them state they (the credit company/JDB) will pay all fees or will pay your portion if you ask.  This also gives you leverage. 

 

[BackFromTheDebt]

To answer the other questions:

Unless you get an agreement right away, you will need to file in JAMS.  Don't wait more than a few weeks.  If negotiations are stalled, just file.  If you do that the right way, it doesn't hurt you at all.  

When you file in JAMS, you MUST send a copy of everything to the attorney.  Everything.  Mail it at first.  If the case gets going, you will probably later do everything by email, but that is a few steps in the future.  (For one JAMS case, I used an email account that was only for the arbitration correspondence).  

When you file in JAMS, do NOT pay right away.  As @Impress mentioned, some of the agreements have clauses for which they pay the arbitration fees.  

I had two JAMS filings for which I never paid the fees.  In one case, we had a mutual walkaway between the time I filed and when the fees were due.  So no fees.  In another case, the attorneys stupidly claimed that Cap 1 would pay all the fees.  Cap 1 never paid their fees nor mine, so the case was dismissed.  

Seeing as how this is Midland, the chances are you have pretty much won this case, and you may not need to pay the JAMS fees.  If the arbitration agreement says YOU have to pay the fees, and you can't reach a mutual walkaway agreement before the fees are due, then you will have to pay the JAMS fees.  They will never pay, and the case will be dismissed from JAMS for non-payment.

 

As for the court docs -- if you have a court order for arbitration, by all means include that with your JAMS filings.  Refer to the document in your filings, and include the court order.  

 

[Brotherskeeper]

11 hours ago, texasbbj said:

First good night sleep tonight in a while!

Funny how a good day in court can do that. Congratulations! 

11 hours ago, texasbbj said:

I should now go ahead and file my Jams and pay the $250.

I would take a moment to reread Fisthardcheese's thread on arbitration before taking any action with JAMS. Many of your questions of what to do next are answered in it. You'll find the link to it in his signature on any of his posts in your thread. Follow @Impress 's advice to read your Synchrony arbitration clause to see if it contains this:

 "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."

 

 

[texasbbj]

Thanks to all for the responses.

I will reread as I am very sure I missed items with the cram speed reading I have just gone thru with everything i had to read and learn!!

 

Onward!

And again THANKS! to all!!

 

[fisthardcheese]

On 11/7/2019 at 9:59 PM, texasbbj said:

Judge approved MTC and will send letter to validate.

The Judge will send a letter to validate?

On 11/7/2019 at 9:59 PM, texasbbj said:

Attorneys for Midland no showed.

I wish this website had a heading on the top of every page that just says "If the other side no-shows in court, immediately ask for a judgement in your favor!!".  For a no show, we don't even have to deal with the arbitration issue.  But, now you must press on. 

[Dgree]

On 11/11/2019 at 8:15 AM, fisthardcheese said:

The Judge will send a letter to validate?

I wish this website had a heading on the top of every page that just says "If the other side no-shows in court, immediately ask for a judgement in your favor!!".  For a no show, we don't even have to deal with the arbitration issue.  But, now you must press on. 

For motion hearings, in CA, the mover isn’t even required to show in court. Not sure if that is the same elsewhere, but asking for a judgement during a motion for arb hearing would likely be laughed at.

[texasbbj]

He is sending letter to validate that the MTC was approved and stated he was sending to the attorney and a copy to me.

 

Unclear on the other part to ask for a judgement in my favor....as the court was for a motion to compel arbitration.?? My expertise in this is slim ,so no, did not do that one as I guess did not understand that could be done or requested.  ?  But yes onward with arbitration.

[fisthardcheese]

No worries, this is almost over anyway.

File the case with JAMS if you haven't already. Send a copy to the attorney.