dusty119

Midland Credit Managment- Court Tomorrow (too late for arbitrage?)

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1. Who is the named plaintiff in the suit?

Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Encore Capital Group

3. How much are you being sued for?

$1,600

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

Synchrony/ Victoria Secret

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)

In Person

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None/Ignored Phone Calls

9. What state and county do you live in?

AZ/USA

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

2016

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

2014

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

6 Years

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Pre-Trial Conference

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').

Before: No

After Being Served: Yes

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 Days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

OC Statements

NO: Original Contract

18.  How did you find out about this site?

Google

 

My wife is the original debtor being sued. She opened this account before we met in 2014. I had no knowledge of this debt until I (myself, not my wife) was served at our front door. My wife responded by agreeing to move forward with the lawsuit, but requested the plaintiff provide more documentation. Here are the events thus far:

Events
Event Type Sub Type Result  
Affidavit of Service  Private Process  Filed   
Answer  Civil Complaint  Filed by Defendant   
Notice  Comprehensive Pre Trial Conf Hearing  Mailed   
Notice  Amended Caption  Filed by Plaintiff   
Order  Continue  Issued/Ordered   
Motion  Continue Hearing  Filed by Plaintiff   
Notice  Comprehensive Pre Trial Conf Hearing 

Mailed

 

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My wife and I have court tomorrow. She just received their "supporting documentation" in the mail this morning, and it was just copies of what they had originally used in their paperwork to serve us. The Plaintiff also stated that they are requesting MOTION FOR SUMMARY JUDGEMENT with the judge. My wife believes they WILL NOT SETTLE, and they believe they have a case to request the full amount + any court fees, etc. 

Can we go in tomorrow and see if they will settle for a lower amount (PFD), and if not, can we then file a motion for arbitration? Or does the motion for arbitration have to be filed before hand?

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Several things.  

1.  You will almost certainly NOT get a PFD.  This rarely happens.  In those rare cases when you CAN get a PFD, you almost always have to pay 100% of the amount, and that is usually before they file in court.  Getting a settlement for < 100% AND a PFD just won't happen unless there are some very unusual circumstances.

2.  By participating this far in the case, SOME courts would rule that you have waived your rights for arbitration.  Others will still let you arbitrate.  This differs from state to state, county to county, judge to judge, and even differs with the same judge depending on his/her mood.  So there is no guarantee off arbitration.

3.  You miss 100% of the shots you don't take.  The ONLY way to get arbitration is to file an MTC NOW.  Either you get arbitration, or you don't.  At least you still have a chance.

4.  Your leverage for negotiations are much better once you have filed an MTC.  If you file an MTC, and then negotiate a settlement, you will probably get a better settlement.  However, what happens once the judge or magistrate or whomever rules on it?  If you get your MTC, your leverage is enormous, because they won't follow you into arbitration.  If you lose the MTC battle, you have lost all your leverage.  

 

I hope that helps.  I would suggest writing up an MTC, and bringing it with you to the pre-trial hearing.  Then see what happens.  

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2 minutes ago, BackFromTheDebt said:

Several things.  

1.  You will almost certainly NOT get a PFD.  This rarely happens.  In those rare cases when you CAN get a PFD, you almost always have to pay 100% of the amount, and that is usually before they file in court.  Getting a settlement for < 100% AND a PFD just won't happen unless there are some very unusual circumstances.

2.  By participating this far in the case, SOME courts would rule that you have waived your rights for arbitration.  Others will still let you arbitrate.  This differs from state to state, county to county, judge to judge, and even differs with the same judge depending on his/her mood.  So there is no guarantee off arbitration.

3.  You miss 100% of the shots you don't take.  The ONLY way to get arbitration is to file an MTC NOW.  Either you get arbitration, or you don't.  At least you still have a chance.

4.  Your leverage for negotiations are much better once you have filed an MTC.  If you file an MTC, and then negotiate a settlement, you will probably get a better settlement.  However, what happens once the judge or magistrate or whomever rules on it?  If you get your MTC, your leverage is enormous, because they won't follow you into arbitration.  If you lose the MTC battle, you have lost all your leverage.  

 

I hope that helps.  I would suggest writing up an MTC, and bringing it with you to the pre-trial hearing.  Then see what happens.  

Thank you very much. I am having trouble finding the terms and agreement for a 2014 Synchrony Victoria’s Secret card... can anyone point me in the right direction so I can use it to draft up my MTC?

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If you or we elect to arbitrate a Claim, you will not have the right to pursue that Claim in court or have a jury decide the Claim. Also, your ability to obtain information from us is more limited in arbitration than in a lawsuit. Other rights that you would have if you went to court may also not be available in arbitration.

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me personally, i would bring the demand for arbitration pursuant the terms and condition of the governing card agreement between parties, along with the MTC,  OP claim arising out of or related to the agreement is a material issue, that you can use against the summary judgment motion. 

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3 minutes ago, Robby8900 said:

me personally, i would bring the demand for arbitration pursuant the terms and condition of the governing card agreement between parties, along with the MTC,  OP claim arising out of or related to the agreement is a material issue, that you can use against the summary judgment motion. 

I’m sorry, I’m not very savvy on this type of stuff. Can you explain what “OP Claim arising out of or related to the agreement is a material issue” means? 

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3 hours ago, dusty119 said:

I’m sorry, I’m not very savvy on this type of stuff. Can you explain what “OP Claim arising out of or related to the agreement is a material issue” means? 

In the arbitration clause in the agreement it states that any claim arising out of or  related to this agreement is arbitrable. 

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Im not sure if they will accept my MTC as I was pressed for time this morning and found a template listed on this forum from a previous defendant fighting the same type of case- I filled in the blanks with my personal and relevant information, but missed a few statements within the template that reference “exhibit A” and “page 4 of 4”, which are non existent on my behalf. The pitfalls of working 3rd shift and waking up 2 hours before court and not having time to prepare documents properly....

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The clerk of court accepted it, but I’m sure the judge or the OP will see the verbiage and know immediately I did not personally draft this document. 

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6 minutes ago, dusty119 said:

The clerk of court accepted it, but I’m sure the judge or the OP will see the verbiage and know immediately I did not personally draft this document. 

If the document was done correctly, that is the most important thing.  Many attorneys file documents they didn’t draft themselves. Often a paralegal fills out a template form, prints it out, and the attorney signs it. 

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Just now, BackFromTheDebt said:

If the document was done correctly, that is the most important thing.  Many attorneys file documents they didn’t draft themselves. Often a paralegal fills out a template form, prints it out, and the attorney signs it. 

I understand that, however, my previous statement above notes that the document has references to documents and exhibits that are non existent. Aka- I skimmed over too fast and didn’t not remove certain sentences and verbiage that is irrelevant to me. 

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22 hours ago, dusty119 said:

I understand that, however, my previous statement above notes that the document has references to documents and exhibits that are non existent. Aka- I skimmed over too fast and didn’t not remove certain sentences and verbiage that is irrelevant to me. 

Ah. I see.  That could be confusing.  Hopefully the judge or magistrate will be understanding.

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Update:

We ended up settling for $1,000. They sent a Rent-A-Lawyer on behalf of the actual attorney on the case. We stated to him that we had already filed arbitration papers with the clerk and planned to go that route. He had no idea what that involved, so he made a phone call to the attorney and they asked if we would do $1,000 even instead of the $1,6xx. My wife jumped at the idea and immediately said yes. 

Unfortunately she wasn't as enthused about the idea of making them struggle as I was...

I think we had a good chance of getting out of this without paying a dime, but I suppose its over with so I'll just have to move forward.

I want to thank all of you for your immediate insights and help with this situation! 

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Yea - it's never easy when you are in-the-moment. Synchrony cards are pretty much uncollectible, due to the arbitration clause, but when it's your first rodeo it can seem overwhelming At least this is over with and you don't have to worry about it. If you get sued again, on another account, you now know what to do.

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If you are happy, this is great. 
The goal is to get a deal you can live with.  
 

Trust me, there were some arbitrations I’ve been through where it would have been easily worth $1000 just to avoid the hassles.  

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On 1/30/2020 at 8:03 AM, dusty119 said:

Update:

We ended up settling for $1,000. They sent a Rent-A-Lawyer on behalf of the actual attorney on the case. We stated to him that we had already filed arbitration papers with the clerk and planned to go that route. He had no idea what that involved, so he made a phone call to the attorney and they asked if we would do $1,000 even instead of the $1,6xx. My wife jumped at the idea and immediately said yes. 

Unfortunately she wasn't as enthused about the idea of making them struggle as I was...

I think we had a good chance of getting out of this without paying a dime, but I suppose its over with so I'll just have to move forward.

I want to thank all of you for your immediate insights and help with this situation! 

From what I understand, they still report the difference as unpaid. 

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