beatpixie

Midland Funding, I want to arbitrate in CA

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I received a summons from an attorney in IL representing Midland Funding (I’m in CA) and looking for an actual template to use for MCL for Arbitration but also need advice on how to do this along with a counter claim for unfair debt practices.
Comenity bank apparently sold my account to Midland approx 2 years ago. I have not once received any communication from Midland that I am aware of and when I had called Wayfair/Comenity when the account was charged off I was told they could not defer that information to me.  Flash forward two years later and I receive a summons at my house (the summons mind you did not have the correct address for me on it, but I think that really doesn’t matter) so I called the attorneys in an attempt to get some discovery materials and requested communications in writing that Midland had made to me during this two year time period since I had received none. I recorded all the phone conversations and in this first one I was told she would put that all together along with the amount of purchases broken down. I received the paperwork just 3 days before I am due to provide a response (no court date is set) and low and behold there is no information from Midland except one page showing where they bought the debt in 2017 and the communication was only between Comenity bank and Midland, not myself. 

Next up I began totaling the amount of the judgement and I have been charged 1500+ in late fees and interest and received no credit for items that were actually returned. The actual amount of the debt is closer to 2500. 

During my first conversation with the attorneys representing Midland the rep (who said she was not an attorney) said that the total was 3,714.  When I called again today after receiving the packet missing the documents I had requested the total had gone up over 4100. The new rep told me because of legal fees. I questioned this as part of the judgement because the summons states 3,714 not 4100 dollars, she didnt have an answer for me except to say they can add whatever legal fees they want and apparently in 2 weeks time I’ve racked up 400 dollars worth. 
 

So what I want to do is proceed with a response: MCL with arbitration but with a counter claim under the Federal Consumer Credit Protection Act due to the way this has all been handled. 

Can anyone help with a template of sorts to use or some guidance? I have been round and round in the forums and I think I am now overcomplicating this lol.  I have the Credit Card Agreement stating they will be responsible for all arbitration fees to use as an exhibit as well and another poster said that the consumer is released from paying any arbitration fees in CA.  Also should  I mention that I have recordings of the phone calls in my response or no? Maybe best to just keep it simple? 

Thanks in advance for any help! This forum has me feeling a little more positive on this process. The rep today said that their parameters with midland will not allow them to offer any settlement under 3400.00 paid over a 4 year term. 

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5 hours ago, beatpixie said:

Comenity bank apparently sold my account to Midland approx 2 years ago. I have not once received any communication from Midland that I am aware of

The first thing to know is that Midland is not required to notify you prior to suing.  Only a couple of states require that and California is not one of them.  They also do not have to prove that you received any communication from them.  Simply producing a copy of letters they attest they mailed will be sufficient for the courts.

5 hours ago, beatpixie said:

Flash forward two years later and I receive a summons at my house (the summons mind you did not have the correct address for me on it, but I think that really doesn’t matter)

A clerical error can be fixed (which the court will allow) and if the court house they sued in is the same one for your correct address you are right it is irrelevant.

5 hours ago, beatpixie said:

I called the attorneys in an attempt to get some discovery materials and requested communications in writing that Midland had made to me during this two year time period since I had received none.

That is not how you do discovery.  California courts have VERY specific rules and if they sent you anything at all it was as a courtesy not within the rules of civil procedure.  You need to research the California threads very carefully to learn all the things you need to do to protect your rights in CA courts.

5 hours ago, beatpixie said:

Next up I began totaling the amount of the judgement and I have been charged 1500+ in late fees and interest and received no credit for items that were actually returned. The actual amount of the debt is closer to 2500.

That can be a defense as to what the actual amount owed is.  The burden of proof is on you though.

5 hours ago, beatpixie said:

During my first conversation with the attorneys representing Midland the rep (who said she was not an attorney) said that the total was 3,714.  When I called again today after receiving the packet missing the documents I had requested the total had gone up over 4100. The new rep told me because of legal fees. I questioned this as part of the judgement because the summons states 3,714 not 4100 dollars, she didnt have an answer for me except to say they can add whatever legal fees they want and apparently in 2 weeks time I’ve racked up 400 dollars worth.

Stop talking to them.  They can claim anything they want on the phone.  Settlement talks are not admissible in court and they won't get attorney fees until the court actually awards them which would be on top of the verdict for the debt.

5 hours ago, beatpixie said:

looking for an actual template to use for MCL for Arbitration but also need advice on how to do this along with a counter claim for unfair debt practices.

First thing to know is that unfair is NOT illegal. Just because you don't agree with it does not mean it rises to the level of violating the law.  Before you file a counter claim that might be frivolous and cause more problems run your situation past a consumer attorney.  Most will do a consult for free.  If there is a violation they will probably take the entire case at no cost to you.

5 hours ago, beatpixie said:

The rep today said that their parameters with midland will not allow them to offer any settlement under 3400.00 paid over a 4 year term. 

That is pretty standard.  A discount on the amount settled for is best when a lump sum payment is made to settle the account.  If you want to make payments over 4 years they are going to want the entire amount and a consent judgment.  You have already defaulted once and they are going to want added protection if they enter into another payment arrangement.

5 hours ago, beatpixie said:

I assume a certified letter to both the attorney and the court is all I need to submit my response to the summons?

No.  DO NOT assume when it comes to a lawsuit.  You need to be learning how to defend yourself.  You need a formal answer if the court does not provide a pre-printed answer form.  You need to file it with the court and serve a copy on the Plaintiff's attorney.  A certified letter is NOT an answer. DO NOT do this.

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Thank you! For the last portion, I was not clear. For my templated arbitration response once I find the right format, how do I get that to the plaintiff and courthouse? That is what I mean when I say sending it via certified mail. 
 

I appreciate your time and help. I will not do a counter claim and like I said I only have three days left to do this as I was waiting on the documentation for all of this and it arrived very late. I wanted to file arbitration but you’re making me think maybe I should not and just do the payment plan. I do not have further time to consult an attorney at this point and still cannot find the appropriate form to send. I have called the court to see if they could point me in the right direction, due to fiscal constraints they do not have someone available on phones. 
 

The attorneys did post an ADR form in the back of the packet they sent me, I wasn’t sure if I should be using something they provided to me or not though and it leaves no room for me to write anything, just check off boxes and such.  
 

Thanks again. 

 

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4 hours ago, beatpixie said:

For my templated arbitration response once I find the right format, how do I get that to the plaintiff and courthouse?

First you need to file an answer to the suit.  Have you done that?  Once you have answered there are things you need to do in CA.  Read the threads.  A motion to compel arbitration is separate from your answer though you can use private contractual arbitration as an affirmative defense in your answer.

You need to go to the clerk's office and file your answer and the MTC.  Read your rules of civil procedure and find out if the court serves a copy of everything for you or if you do it via certified mail on the Plaintiff's attorney.

4 hours ago, beatpixie said:

I wanted to file arbitration but you’re making me think maybe I should not and just do the payment plan

You can settle at any time.  As slow as the CA courts move I would try the MTC first and if it is denied you can agree to settle before trial.

4 hours ago, beatpixie said:

I have called the court to see if they could point me in the right direction, due to fiscal constraints they do not have someone available on phones. 

The court cannot give you any advice on defending yourself or procedures.  You need to either hire a lawyer or check with legal aid to see if you qualify.

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Disregard, I found the official forms needed to file my summons response, making three copies now and I am also going to make 3 copies of the ADR form requesting arbitration. Will bring both but will file my response first and see if I can also file the ADR at the same time while I’m there. I will see if they want me to send the third copy to the plaintiff via certified mail or if they handle that. It doesn’t stipulate on the courts site so I’ll just ask in person. 
 

thanks!

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