MikeS

Being sued by Midland Credit Management and Portfolio Recovery Associates in Ohio

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1 hour ago, Brotherskeeper said:

@MikeS This Ohio thread has a lot of useful information and links to other Ohio threads, including @MikeB35 cases. 

 

Thank you. I think this is one of the ones I had seen before I made my posting but now that I'm into mine a little i review it again.

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1 hour ago, Brotherskeeper said:
 

@MikeS This Ohio thread has a lot of useful information and links to other Ohio threads, including @MikeB35 cases. 

 

Re-reading this, I am nervous they will try to make the same claim that the arbitration clause (card agreement) does not apply since I denied having any agreements with the Plaintiff in my answer. How could they possibly argue that the card agreement does not apply yet they still have a right to collect on the debt?

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1 hour ago, MikeS said:

I denied having any agreements with the Plaintiff in my answer.

The Plaintiff is not the original creditor. Did you expressly deny ever having the credit card? 

1 hour ago, MikeS said:

How could they possibly argue that the card agreement does not apply yet they still have a right to collect on the debt?

MikeB35 had to file a response to his plaintiff's opposition. He addressed many arguments they raised. I am not a lawyer, but it appears to me that JDB attorneys in Ohio like to throw weak arguments against arb up against the wall and hope something sticks with the judge. 

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On 6/10/2020 at 1:54 PM, MikeS said:

This is the complaint from PRA. I can also add the Midland one as well if you would like. 

Exhibit A is the Bill of Sale with no specific account number mentioned and what looks like an excel spreadsheet with some account data that has no context.

Exhibit B is an Account Statement

Exhibit C is the Credit Card Agreement

 

1. The Plaintiff is the owner of the Defendant's SYNCHRONY BANK - HOME SOURCE account, account number XXXXXXXXXXXXXXXX. The Chain of Title is attached hereto as Exhibit A

2.    By use of the account, the Defendant became bound by terms in the Account's agreement. Copies of the Statements and Agreement are attached hereto as Exhibits B and C.
3.    The Defendant breached the Account's agreement by failing to make payments on the Account as required.
4.    The amount due and owing by the Defendant is $X,XXX.XX.
5.     Although demand has been made upon the Defendant to liquidate the balance due and owing, the Defendant failed to do so.
6.    Plaintiff does not seek an award of attorney fees, contractual or statutory interest after the date of charge off including any post judgment interest, and expressly disclaims any right it may have to the same. 

Wherefore, the Plaintiff prays for judgment against the Defendant in the amount of $X,XXX.XX and court costs. 

 

5 minutes ago, Brotherskeeper said:

The Plaintiff is not the original creditor. Did you expressly deny ever having the credit card? 

MikeB35 had to file a response to his plaintiff's opposition. He addressed many arguments they raised. I am not a lawyer, but it appears to me that JDB attorneys in Ohio like to throw weak arguments against arb up against the wall and hope something sticks with the judge. 

Paragraph 2 is the closest thing to that. I didnt really admit or deny the existence of the account. Below was the answer I filed with the court.

 

  1. Defendant denies paragraph one.
  2. Paragraph two defines terms from the original creditor, not the plaintiff. Defendant denies any such terms or agreement exist with plaintiff.
  3. Defendant has no agreement with the plaintiff and denies paragraph three.
  4. Defendant denies paragraph four.
  5. Defendant denies paragraph five. The Plaintiff has failed to show evidence to prove ownership of debt including:
    1. The original credit application, including the terms and conditions under which the original lender agreed to extend credit;
    2. Record of the sale to prove that the Plaintiff purchased this specific account; and
    3. The terms and conditions of the sale of the account.
  6. Defendant neither agrees with nor denies paragraph six.

 

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(I am not a lawyer.) I would argue that  "2. Paragraph two defines terms from the original creditor, not the plaintiff. Defendant denies any such terms or agreement exist with plaintiff." denies the assignment of those rights to plaintiff as successor-in-interest. You don't expressly deny  " 2.    By use of the account, the Defendant became bound by terms in the Account's agreement. Copies of the Statements and Agreement are attached hereto as Exhibits B and C." In my state, if you don't deny an allegation or claim lack of knowledge, it's deemed admitted. 

Check your rules to see what is required to amend your Answer. I believe MikeB35 had to amend one of his. If you feel you must amend your Answer in order to keep your fight alive, you'll know how to do it. 

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1 minute ago, Brotherskeeper said:
 
 

(I am not a lawyer.) I would argue that  "2. Paragraph two defines terms from the original creditor, not the plaintiff. Defendant denies any such terms or agreement exist with plaintiff." denies the assignment of those rights to plaintiff as successor-in-interest. You don't expressly deny  " 2.    By use of the account, the Defendant became bound by terms in the Account's agreement. Copies of the Statements and Agreement are attached hereto as Exhibits B and C." In my state, if you don't deny an allegation or claim lack of knowledge, it's deemed admitted. 

Check your rules to see what is required to amend your Answer. I believe MikeB35 had to amend one of his. If you feel you must amend your Answer in order to keep your fight alive, you'll know how to do it. 

Should I wait to see what happens with my current motion to dismiss? Or could how I have filed my answer muck that up?

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5 minutes ago, MikeS said:

Should I wait to see what happens with my current motion to dismiss? Or could how I have filed my answer muck that up?

Again, I'm not a lawyer or expert on Ohio rules, but I would only take an action if I had to, in order to avert disaster. I gave you how I might argue that I never expressly denied I had an agreement with the original creditor, only denied that plaintiff is successor-in-interest through purchase. Ohio members are the ones who know more than I do. 

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1 hour ago, MikeS said:

Re-reading this, I am nervous they will try to make the same claim that the arbitration clause (card agreement) does not apply since I denied having any agreements with the Plaintiff in my answer. How could they possibly argue that the card agreement does not apply yet they still have a right to collect on the debt?

It doesn’t matter that you didn’t have an agreement with the plaintiff. Read your cardmember agreement.  It will contain language that shows the account can be assigned or sold and that the terms, conditions, and rights transfer to the new owner.  Because of that language, you do have an agreement with the plaintiff. 

In a lawsuit in which arbitration is not made an issue, the plaintiff would be required to prove it owns the account in question.  In your case, the plaintiff is not going to claim the cardmember agreement does not apply.  The reason is because to do so would be the same as claiming it did not purchase the account.  It cannot claim it has a right to the balance but does not have to abide by the terms and conditions of the account it claims to have purchased.  

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1 minute ago, BV80 said:

It doesn’t matter that you didn’t have an agreement with the plaintiff. Read your cardmember agreement.  It will contain language that shows the account can be assigned or sold and that the terms, conditions, and rights transfer to the new owner.  Because of that language, you do have an agreement with the plaintiff. 

In a lawsuit in which arbitration is not made an issue, the plaintiff would be required to prove it owns the account in question.  In your case, the plaintiff is not going to claim the cardmember agreement does not apply.  The reason is because to do so would be the same as claiming it did not purchase the account.  It cannot claim it has a right to the balance but does not have to abide by the terms and conditions of the account it claims to have purchased.  

Thank you. Are you saying I should be ok right now with my motion? Up until they object of course.

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1 minute ago, MikeS said:

Thank you. Are you saying I should be ok right now with my motion? Up until they object of course.

Like @Brotherskeeper, I’m not up on Ohio law.  They may not object to being bound by the agreement. 

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23 hours ago, MikeS said:

Would I be adding that to the beginning of my MTD or when I receive their discovery requests I send back my response as an objection because I elected arbitration?

When you receive their discovery requests send back your responses as objections.

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1 minute ago, nobk4me said:

When you receive their discovery requests send back your responses as objections.

I received them in the mail today. I planned to respond:

OBJECTION.  Arbitration has been elected, and a jurisdictional motion is pending in this court.  The scope of discovery is to be determined by the arbitration forum.

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10 minutes ago, MikeS said:

I received them in the mail today. I planned to respond:

OBJECTION.  Arbitration has been elected, and a jurisdictional motion is pending in this court.  The scope of discovery is to be determined by the arbitration forum.

That's good.

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23 hours ago, MikeS said:

I feel pretty good about it and am very appreciative of the help. Major KUDOS to @Robby8900 for the help. I'll let you know how it goes and if this is successful in the suit for PRA I'll submit it with the other card agreement for the Midland suit too.

I thought about it overnight. I feel there really isn't any good reason to wait to file the same motion for the Midland suit as well. The Judge is either going to approve the motion because he agrees the SCOTUS ruling applies or he doesn't. It's not like I mucked something up with procedure. Anyone think I should wait to see what happens with PRA before filing the motion with Midland? I do have a motion deadline of July 30th for that one.

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On 6/12/2020 at 10:09 AM, MikeS said:

I thought about it overnight. I feel there really isn't any good reason to wait to file the same motion for the Midland suit as well. The Judge is either going to approve the motion because he agrees the SCOTUS ruling applies or he doesn't. It's not like I mucked something up with procedure. Anyone think I should wait to see what happens with PRA before filing the motion with Midland? I do have a motion deadline of July 30th for that one.

my suggestion is file something right away. ill attach the dismissal from the case on the 8th regarding the same type MTD

Dismissal - Redacted.pdf

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On 6/12/2020 at 10:09 AM, MikeS said:

I thought about it overnight. I feel there really isn't any good reason to wait to file the same motion for the Midland suit as well. The Judge is either going to approve the motion because he agrees the SCOTUS ruling applies or he doesn't. It's not like I mucked something up with procedure. Anyone think I should wait to see what happens with PRA before filing the motion with Midland? I do have a motion deadline of July 30th for that one.

 

On 6/13/2020 at 6:53 PM, Robby8900 said:

my suggestion is file something right away. ill attach the dismissal from the case on the 8th regarding the same type MTD

Dismissal - Redacted.pdf 81.64 kB · 1 download

Filed the motion for Midland today as well. Adjusted dates and such. Attached the card agreement for that card. The clerk actually rejected the efile at first. They were having a Monday and trying to make sure they didnt over charge me. They thought it was a duplicate filing for the same case and they were not aware the two JDB were suing me. Called them up and we are all square now. 

I should have asked if the judge looks at motions on certain days or if its just as they come in in the order they come in. It's supposed to be ruled on within 10 days in Ohio right?

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3 hours ago, MikeS said:

 

Filed the motion for Midland today as well. Adjusted dates and such. Attached the card agreement for that card. The clerk actually rejected the efile at first. They were having a Monday and trying to make sure they didnt over charge me. They thought it was a duplicate filing for the same case and they were not aware the two JDB were suing me. Called them up and we are all square now. 

I should have asked if the judge looks at motions on certain days or if its just as they come in in the order they come in. It's supposed to be ruled on within 10 days in Ohio right?

Now just keep a watch on the docket for any changes. 

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Ruled on in 10 days?  I am not aware of that.  Remember, the other party has the right to respond to your motion.

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7 minutes ago, nobk4me said:

Ruled on in 10 days?  I am not aware of that.  Remember, the other party has the right to respond to your motion.

I thought I'd read in a different post that either it was supposed to be ruled on or the other party only had 10 days to respond. Maybe I'm getting it mixed up with something else entirely. 

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On 6/15/2020 at 5:38 PM, Robby8900 said:

Now just keep a watch on the docket for any changes. 

I can see on the PRA suit that the attorney has filed a brief in opposition. It doesn't look like the clerk has uploaded the document yet. I'll update the thread when I have it.

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57 minutes ago, MikeS said:

I can see on the PRA suit that the attorney has filed a brief in opposition. It doesn't look like the clerk has uploaded the document yet. I'll update the thread when I have it.

You will have 7 days to file a reply

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Just now, Robby8900 said:

You will have 7 days to file a reply

Anything you can point me to for me to start reading? I'm reading one for Michigan right now but you just helped someone through this in Ohio recently right?

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2 minutes ago, MikeS said:

Anything you can point me to for me to start reading? I'm reading one for Michigan right now but you just helped someone through this in Ohio recently right?

Got to see what the attorney wrote in his opposition. That's all you can reply too. 7 days from when you receive your copy

 

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13 minutes ago, Robby8900 said:

Got to see what the attorney wrote in his opposition. That's all you can reply too. 7 days from when you receive your copy

 

I need to read this thoroughly later this evening but in just scanning it quickly, they seem to state early that i should not be granted arbitration because it will cost too much for them and then later on say that they would welcome arbitration but I have to file. Is that how It's reading to others?

Plaintiffs Brief in Opposition_Redacted.pdf

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Two main points in the plaintiff's brief: 1. The contract excludes collection matters from arb; 2. Defendant failed to initiate the arb case. 

This must be a boilerplate response, as they refer to Discover, _which is not the OC here.

Anyway, with regard to the first issue, their logic is faulty, or maybe they are being deceptive. The contractual language is "We will not require you to arbitrate . . . '  in collection cases.  But you want arb.  It is not a case of them forcing arb on you.  The contract does not say arb can never be used in a collection case at the request of the defendant,  which is how they are twisting this to read.

As to the second issue, there is great case law, Capital One v. Rotman, which held that it is the plaintiff's responsibility to initiate arb. 

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