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Intensivefire

Sued By Midland Funding in Oregon HELP!!!

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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.)

Gordon, Aylworth & Tami, P.C.

 

3. How much are you being sued for?

$1,1XX.XX

 

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

Synchrony Bank/Amazon

 

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

Yes

 

6. How were you served? (Mail, In person, Notice on door)

In person

 

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

I believe so

 

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

Nothing that i remember

 

9. What state and county do you live in?

Polk County, Oregon

 

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

Sometime in 2015

 

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

Sometime in 2015

 

12. What is the SOL on the debt? 

Oregon says 6 years but these cards were issued in Puerto Rico which i believe is 3 years.

 

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).

Open, MTC Filed, hearing for motion and hearing for status check scheduled.

 

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').

No

 

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?

 

Breach of Contract

1. Defendant, an individual residing in Polk County Oregon entered into a contract with Synchrony Bank/Amazon.com for a credit account. The credit account was issued to Defendant with the account number ********9315.

2. Synchrony Bank/Amazon.com supplied the credit account to Defendant subject to an agreement to repay all amounts charged to the account plus all associated costs and fees.

3. Defendant used the credit account and became indebted to Synchrony Bank/Amazon.com.

4. Synchrony Bank/Amazon.com performed its obligations under the terms of contract.

5. Defendant breached the contract by failing to make payments as agreed. No payments were made on the account.

6.. As a result of Defendants failure to pay, Defendants credit account was charged off for delinquency on Feb 3, 2016.

7. As of the date of the charge off, the balance due on Defendants account was $1,1xx.xx. Additional information regarding the account can be found on the Consumer Debt Disclosure form, which is attached hereto and by this reference incorporated herein.

8.Plaintiff, for good and valuable consideration, purchased Defendants Synchrony  Bank/Amazon.com credit account and contract and all of the associated rights thereunder on or about February 27, 2017.

9. As a result of Defendants breach of contract, Defendant is indebted to Plaintiff in the sum of $1,1xx.xx. Plaintiff also seeks recovery of fees, costs and disbursements that are permitted by law. These fees, costs and disbursements may include, but are not limited to, those permitted by OCRP 68, such as costs of filing and service, as well as any other statutorily permitted cost, fee or disbursement which may be awarded to a prevailing party in this action. At this stage of the litigation, it is impossible to itemize these costs further. Plaintiff also requests post-judgement interest on the full balance of the judgement at the statutory rate of 9%.

 

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

Only the complaint and a  Consumer debt collection disclosure which has marked that i made a payment but under it states that no payments were made.

 

 I went through the mandatory arbitration of Oregon, which was really one sided. They sent in some credit card charge statements, a bill of sale from Synchrony Bank with no personal info, and a paper with my info printed from Synchrony Bank records. 

 Filed a Trial De Novo afterwards and now i have a hearing date for the motion, which im waiting to get in the mail, and a status check hearing date which i got today in the mail. 

The first time they sued me for over $2k and they ended up dismissing without prejudice once i filed the MTC, not this time. Also as soon as i filed my answer i had filed an MTC but i believe the clerk made a mistake and filed it under a motion for discovery so i re filed the MTC together with the Trial de Novo last week and sent the attorneys and Midland a copy.

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My advice would be don't believe a word Midland Funding LLC says on paper or in person and if possible keep all communication with them limited to letters (for your records). I recently had my case dismissed with prejudice when Midland Funding LLC got caught lying to the judge during trial. If Midland will lie to a judge during trial, they will lie to anybody before trial. The Consumer Financial Protection Bureau recently investigated Midland Funding LLC and Midland Credit Management and found they were (and in my experience with them still are) notorious for unethical and unlawful debt collection practices (here). You can file a claim against Midland Funding LLC and Midland Credit Management with CFPB if you suspect they are being dishonest in anyway, shape or form.

 

Also, information for pursuing the arbitration route against Midland Funding LLC and other debt collectors could be found here: 

 

 

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They just mailed me that they will file a Motion for Appearance by Telephone for my motion hearing. The reasoning for them is that they are more than 25 miles away from the court.

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If it were me, I would write them back and say "I do not stipulate to a telephone appearance".  And nothing more (other than the case number and other regular identifying info).  This will make no difference, but I just like to let them know I know their games. :)

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23 minutes ago, Intensivefire said:

Would that push them to dismiss just to not show up in court? Or would it just annoy them to get them off their lazy a$$?

As @fisthardcheese pointed out, it will do absolutely nothing except show them you are paying attention.

These days, judges are trying to get as much of their docket done by telephone as possible.  The odds that a judge would refuse a telephonic appearance are pretty much nil.  In fact, the judge may order the entire hearing to be done by phone.  

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7 hours ago, Intensivefire said:

Would showing up in person help my odds to get the motion granted? Im fully expecting them to come up with a crappy reason to object to the motion.

This is getting into the realm of psychology here.  

I would always show up in person to argue a motion, on the premise that the judge could see me as a real person, as opposed a disembodied voice.  Even when the opposing party phoned it in.  The judge probably has met all the lawyers.  

In current times, a judge might a LOT happier without humans in the courtroom.  After all, judges are often quite old.  Often times, when lawyers are about to retire, they work as a judge for a while.  I had a great-great uncle in central TN who was on the bench until he was about 90

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Well my Status Check Hearing was canceled and the date for the Motion Hearing was changed to more than a month from now due to the coronavirus. Hoping that my case gets dismissed before the hearing but thats wishful thinking.

 

I did file a complaint through the CFPB to see what happens.

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I just recieved a Settlement Agreement and Release from Midlands attorney. If anyone could help me out with this i'd appreciate it, i want to make sure im not screwing myself over.

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Main thing is to include language that says that you are not "settling a debt" and this in no way is an admission of indebtedness and was just done to say litigation costs, etc. Something like that so when you get a 1099 you can try to contest it.

 

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The first page says:

Dear ~~~

Pursuant to your request, my client is oferring a dismiss to the above referenced case. Enclosed please find a proposed Settlement Agreement and Release along with a Stipulated Judgement of Dismissal. If the Agreement and Stipulation are acceptable, please sign and date where indicated and return them to my office.

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Settlement Agreement and Release

This Settlement Agreement and Release [the "Agreement'] is made this _ day of ___ 2020, by and between Defendant and Midland Funding LLC.

WHEARAS. Defendant incurred certain debt related to a Synchrony Bank/Amazon.com account identified by account number ~~~ [the "debt"] and Midland Funding LLC's account number ~~~ [the "Plaintiff Account"],

WHEARAS Midland Credit Management, Inc. [MCM] services the Plaintiff Account on behalf of Plaintiff.

WHEARAS, Plaintiff has filed a complaint entitled ~~~~~~~ and 

WHEARAS, the Parties hetero desire to compromise, settle and release any and all claims arising out of relating to the Plaintiff Account, any sale, assignment, or transfer of the Plaintiff Account, the Action,

NOW THEREFORE in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows:

 

1. DIsmissal of Action. The Parties shall dismiss the Action with prejudice upon the execution of this agreement. Each party shall bear its own costs and fees

2. Release By Defendant. In consideration of the promises contained herein and the relinquishment of his legal rights regarding any claims arising out of or related to the Action, the Debt, and the Plaintiff Account, Defendant, himself, his heirs, successors, legal represntatives and assigns, do hereby release, acquit and forever discharge Plaintiff and all of its affiliates, parents and/or subsidiary corporations including, without limitation, its representatives managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, insurers, and representatives [including attorneys], together with any and all other persons, Firms and/or corporations who are or might be liable [collectively, the "Plaintiff Released Parties"], from any and all claims, liabilities, demands, suits, and causes of action of every nature and kind, wether vested or contingent, accrued or unaccrued, known or unknown, in law or in equity, matured or unmatured, wether or not such claims were or could have been brought or raised in the Action, or as a result of any sale, assigment, or transfer of or collection activities related to the Debt and/or the Plaintiff Account, including without limiting the generality of the foregoing, those claims expressely raised in the Action, those arising out of or relating to the facts, circumstances, or ocurrences surrounding the above mentioned Action, and those arising out of, relating to or resulting from the facts, circumstances, or ocurrences concerning the Debt and Plaintiff Account.

3. Release by Plaintiff. In consideration of the promises contained herein and the relinquishment of its legal rights regarding any claims arising out of or related to the Action, the Plaintiff Account or the Debt, Plaintiff, itself, its representatives managing partners, officers, directors, shareholders, employees, agents, assigns, successors, servants, insurers, and representatives [including attorneys], together with any and all other persons who are or might be liable [collectively the "Defendant Release Parties"], from any and all claims, liabilities, demands, suits and causes of action of every nature and kind, wether vested or contingent, accrued or unaccrued, known or unkown, in law or in equity, matured or unmatured, whether or not such claims were or could have been brought or raised in the Action. In adittion, by operation of this Agreement, Plaintiff hereby represents  that it will not effectuate conveyance of or activity relating to the Plaintiff Account. It is specifically understood that this Agreement shall be applicable solely to the Plaintiff Account referenced above, and will not apply to any other accounts currently owned or hereafter acquired by Plaintiff.

4. Release of unknown claims. This Agreement covers and includes all claims that Defendant has against Released Parties up to and including the date of this Agreement, whether actually known or not, despite the fact that any applicable state and/or federal law may provide otherwise.

5. Denial of Liability. It is expressly understood and agreed to by and among the undersigned hereto that by entering into this Agreement, none of the undersigned hereto admit the truth of the allegations made by any other party, and this is a compromise of a disputed claim, which should not be construed as an admission of liability on the part of any party.

6. Tax Considerations. This Agreement is a result of a "contested liability" that was disputed in good faith. The Released Parties  make no representations regarding tax consequences, if any, pursuant to this Agreement.

7. Assigns and Successors In Interest. This Agreement shall be binding upon and inure to the benefit of their heirs, successors, and assigns of the undersigned hereto.

8.Agreement Fully Read and Understood. This Agrement has been carefully read by the undersigned and the contents are known and understood by the undersigned. The recitals stated above are incorporated herein by reference. The undersigned have each been afforded the opportunity to receive independent legal advice from the attorneys of their choice with respect to the preparation, review, and advisability of executing this Agreement or have voluntarily elected not to do so. Prior to the execution of this Agreement by each party, the undersigned has had the opportunity for an attorney to review the Agreement, and the undersigned acknowledge that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence.

9. Applicable Law. The existence, validity, construction and operation of this Agreement, and all of its covenants, agreements, representations, warranties, terms, and conditions, shall be determined in accordance with the laws of the State of Oregon.

10. Entire Agreement. This Agreement sets forth the entire agreement between the undersigned, and fully supersedes any and all prior and/or contemporaneous agreements or understandings between the undersigned, which pertain to the subject matter hereof. The terms of this Agreement may not be contradicted by the evidence of any prior or contemporaneous agreement, and no extrinsic evidence whatsoever may be introduced to vary its terms in any judicial proceeding involving this Agreement.

11. Modification. This Agreement may be modified, but only if the modification is in writing and signed by the undersigned to this Agreement.

12. Severability. Should any provisions of this Agreement be declared or determined by any couret to be illegal or invalid, the validity of the remaining parts , terms, or provisions shall not be affected thereby, and said illegal or invalid part, term, or provision shall be deemed not to be part of this Agreement.

13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Faxed signatures may be accepted as originals.

14. Confidentiality. The Undersigned hereto agree that they will not, at any time, without the express written consent of each of the other party, communicate, disclose or acknowledge the terms of this settlement, or this Agreement, to any person or entity except as required by court order, except as may be necessary to update the trade lines of the Plaintiff Account with Credit Bureaus. Defendant may discuss the details of this Agreement by ordinary means of private communication, including, but not limited to, voice, telephone, and email, with  his legal counselors, tax professionals, and financial advisors acting in their professional capacity. The undersigned may disclose that this matter has been settled to the undersigned's satisfaction.

15. Mutual Drafting. This Agreement is the product of negotiations "at arms length" between the undersigned, both of whom are either represented by counsel or hereby acknowledge voluntary waiver of the right to such counsel. As such, the terms of this Agreement is mutually agreed upon, and no part of this Agreement will be construed against the drafter.

 

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The last page they sent me says Stipulated General Judgement of Dismissal WIthout Prejudice which they want me to sign, makes no sense to me since in the agreeement it says dismissal with prejudice.

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