Blue1234

Midland Credit Management Lawsuit, Need advice please!

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Hi, so I received a court date in April. I also received a letter from Midlands attorney for both cases offering payments or to settle for a lump sum (about 3/4 of total). It was not a great offer, but it tells me that they don't like my response with a MTC. They originally offered no settlement when I called. I was considering sending them back an offer of $250 for each case, just to see if they would consider. I was wondering if anyone has any information on how to do this. Is it appropriate to send them an email? And is this even a good idea? Thanks everyone!

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8 minutes ago, Blue1234 said:

Hi, so I received a court date in April. I also received a letter from Midlands attorney for both cases offering payments or to settle for a lump sum (about 3/4 of total). It was not a great offer, but it tells me that they don't like my response with a MTC. They originally offered no settlement when I called. I was considering sending them back an offer of $250 for each case, just to see if they would consider. I was wondering if anyone has any information on how to do this. Is it appropriate to send them an email? And is this even a good idea? Thanks everyone!


I personally used email for all my communications with attorneys when possible.  
1. It is faster than snail mail, and cheaper. 
2.  With email you always have a record of everything sent back and forth.  
 

If you make this offer, make sure there is a time limit to the offer.  The time limit should be at least a week into the future and before the court date.  If the court date is early April, make the time limit the day before the court date.  If late April, make the time limit a few days before the court date.  

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6 hours ago, Blue1234 said:

Hi, so I received a court date in April. I also received a letter from Midlands attorney for both cases offering payments or to settle for a lump sum (about 3/4 of total). It was not a great offer, but it tells me that they don't like my response with a MTC. They originally offered no settlement when I called. I was considering sending them back an offer of $250 for each case, just to see if they would consider. I was wondering if anyone has any information on how to do this. Is it appropriate to send them an email? And is this even a good idea? Thanks everyone!

Definitely not an email, you want to send them a written settlement offer.  One that you send CMRR.

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My settlement offer was denied (as I expected) and my court date is next week. I am so nervous about this. If my MTC is denied for some reason, will court move forward with the original complaint and the judge then rule on that too? Are the chances slim that my MTC will be denied? 

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3 hours ago, Blue1234 said:

My settlement offer was denied (as I expected) and my court date is next week. I am so nervous about this. If my MTC is denied for some reason, will court move forward with the original complaint and the judge then rule on that too? Are the chances slim that my MTC will be denied? 

There is no way we could answer this question.   We don’t know the history of this particular judge.  
 

All you can do is make a plan, prepare as well as possible, and hope the judge follows the US Supreme Court.  Most judges will.  If not, an appeal may be required.  
 

 

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51 minutes ago, Blue1234 said:

What happens if the MTC is denied? Will the case move forward in court immediately?

 

Yes.

The MTC has the effect of stopping the case.  Once the MTC is ruled on, the case continues, either in arbitration or in court.  

It really isn't helpful to worry too much about whether the judge will rule incorrectly.  In the event that does happen, you would need to appeal.  But cross that bridge when it comes.  In some jurisdictions you would appear to a higher court after the case is over.  In other jurisdictions you would appeal that particular ruling.  I don't know how things work in your jurisdiction. Again, the best bet is to be prepared to defend what you wrote in your MTC.  

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I was just thinking ahead so that I could be prepared with something if the mtc was denied and the case moved forward in the courtroom. I would feel silly after arguing for the judge to rule in favor of my motion, if I had no way to contest the debt, if my mtc was denied. From what I understood from the clerk, the case would move forward and be ruled on the same day if my motion was denied. Ive read and tried to be prepared for the mtc portion of the hearing that I havent thought much about what to do if it wasnt granted.

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2 hours ago, Blue1234 said:

I was just thinking ahead so that I could be prepared with something if the mtc was denied and the case moved forward in the courtroom.

If your motion to compel is denied, and the court directly proceeds to a trial on the merits, you could ask the court for leave to file an interlocutory appeal of the denied motion to compel.

Towles v. United Healthcare Corp., et al., - SC

Quote

We must initially determine whether United may appeal from the circuit court's order.   United contends the circuit court's order is appealable under both federal and state law.  We agree.

 Both federal and state policy favor arbitrating disputes.  Heffner v. Destiny, Inc., 321 S.C. 536, 537, 471 S.E.2d 135, 136 (1995) (“The policy of the United States and this State is to favor arbitration of disputes.”).   This preference for arbitration has manifested itself in legislation and judicial decisions supporting the expeditious appeal of decisions denying an application to compel arbitration.

The FAA states:  “An appeal may be taken from ․ an order ․ denying an application under section 206 of this title to compel arbitration.”  9 U.S.C.A. § 16(a)(1)(C) (1999).   Enacting this provision revealed Congress's “deliberate determination that appeal rules should reflect a strong policy favoring arbitration.”  Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d 727, 730 (4th Cir.1991) (quoting 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3914.34, at 412 (Supp.1990)).

 South Carolina's statutory law provides a similar framework.   South Carolina's Uniform Arbitration Act states:  “[a]n appeal may be taken from ․ [a]n order denying an application to compel arbitration made under § 15-48-20.”   S.C.Code Ann. § 15-48-200(a)(1) (Supp.1998).   Therefore, “an order that favors litigation over arbitration-whether it refuses to stay the litigation in deference to arbitration;  refuses to compel arbitration;  ․ or grants, continues, or modifies an injunction against arbitration-is immediately appealable, even if interlocutory.”  Stedor, 947 F.2d at 730 (emphasis added).

Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d

Quote

Thus, a party who believes that arbitration is required by an agreement between the parties need not suffer the expense and inconvenience of litigation before receiving appellate review of a district court judgment that arbitration was inappropriate. -- Stedor Enterprises, Ltd. v. Armtex, Inc., 947 F.2d 727, 730 (4th Cir. 1991)

The above was uncovered after only a few minutes of searching. You'd want to do your own due diligence, both to verify the information and check for better precedent.

The court could still refuse leave and go ahead with the trial, but that itself might be an error, if you asked for leave to file an immediate appeal.

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The interlocurary appeal is standard in MOST situations.  

My state is a bit different.  

For example, in my state, Wisconsin, a small claims case can be automatically appealed to the higher circuit court and the case is heard de novo.  The circuit court in my county is probably the most consumer friendly court in the state.  

The state's best consumer attorney is also in my county.  He doesn't have much faith in the small claims courts.  What he normally advises his clients is they will often have a bad magistrate in small claims, but to appeal whatever verdict they get in small claims up to circuit court.  Many of his clients win on that appeal.  

I know of at least one poster on this board who was denied an MTC and lost a case in small claims in my county, but won the MTC in circuit court.  

It would not hurt for the OP to find out what the Rules for Civil Procedure are for the OP's state.  That could lead to the proper strategy if the MTC is denied.  

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5 hours ago, BackFromTheDebt said:

The interlocurary appeal is standard in MOST situations.  

My state is a bit different.  For example, in my state, Wisconsin, a small claims case can be automatically appealed to the higher circuit court and the case is heard de novo

How do the small claims rules in Wisconsin preclude an interlocutory appeal of a denied motion to compel arbitration?

Several states provide for de novo review of the entire case.  The standard of review for a denied motion to compel arbitration is almost always de novo.  In South Carolina, it is de novo with some qualifications.

Having de novo review of the entire case is of superfluous benefit if all that a party is concerned with is the denied motion to compel arbitration.

OP seemed to indicate that the mtc hearing and the trial are scheduled for the same day.  OP shouldn't have to proceed to the trial if the mtc is denied.

Even if the appeal rights are preserved, it is not ideal to have a judgment while the appeal is pending. Even if it is eventually reversed, data will linger from it being recorded at all.

But, yes, OP should learn the applicable law and rules of civil procedure, of course.

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Also check your state's arbitration laws.  Most are modeled on the Federal Arbitration Act.  Often, if a judge denied a MTC Arb and request for a stay, that order is immediately appealable.  No need to wait for the end of the case.

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Right, the case I referenced above (Towles v. United Healthcare Corp., et al.) cites both federal and state law.

The applicable state law is the SCUAA § 15-48-20 & § 15-48-200.  See https://www.scstatehouse.gov/code/t15c048.php

But I didn't review OP's motion to compel.  I don't know if the application was made under the relevant SCUAA statutes, or just the FAA.

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1 hour ago, kittycat said:

Right, the case I referenced above (Towles v. United Healthcare Corp., et al.) cites both federal and state law.

The applicable state law is the SCUAA § 15-48-20 & § 15-48-200.  See https://www.scstatehouse.gov/code/t15c048.php

But I didn't review OP's motion to compel.  I don't know if the application was made under the relevant SCUAA statutes, or just the FAA.

If the arbitration provision is governed by the FAA, the SC arbitration law will not apply.  The court will have to follow the FAA.

Because interstate commerce is involved, the FAA applies and displaces South Carolina's Uniform Arbitration Act. See Soil Remediation Co., 323 S.C. at 459-60, 476 S.E.2d at 152 (noting the FAA preempts South Carolina's Uniform Arbitration Act). Towles v. United HealthCare Corp., 338 S.C. 29, 37, 524 S.E.2d 839, 844 (Ct. App. 1999).

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2 hours ago, kittycat said:

Yep, that seems to be the case. Still subject to immediate appeal as per Towles, etc.

Absolutely subject to immediate appeal.  The OP just needs to rely on the language in the arbitration provision (governed by the FAA), §16 of the FAA if his MTC is denied, U.S. Supreme Court case law, and South Carolina case law about the FAA.

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I am by far overwhelmed with all of this, but researching as much as possible. The arbitration clause in the agreement does state that it is governed by the FAA. From what I understand, I should go to trial prepared to defend what I wrote in my mtc. If it is denied and they proceed with the trial then I can request a stay on the basis that I wish to appeal the decision? I do not want the trial to proceed and not be ready with anything to defend the validity of the debt. 

I also really appreciate all of the feedback and help from you all. The trial is Tuesday so I really need to make sure I'm on the right page before going to court.

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Also here is the mtc that was filed...

 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

 

1. That on or about December 8, 2020, the Plaintiff filed its Complaint against the Defendant.

 

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Agreement (see Exhibit B, attached).

 

3. The parties are bound by the Credit Agreement. The Arbitration Agreement states, among other things:

 

a) Disputes between you and us will be subject to individual arbitration. This means that neither a court nor a jury will resolve any such dispute.

 

b) You and we must arbitrate any dispute or claim between you and us (including our parents, affiliates, agents, employees, officers, and assignees).

 

c) Arbitration may be requested at any time, even where there is a pending lawsuit.

 

d) The Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs the interpretation and enforcement of this Agreement to Arbitrate.

 

e) The Agreement to Arbitrate shall survive the termination, cancellation or suspension of the Agreement or your account.

 

4. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989)."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "
 

5. This argument is made pursuant to Rule 12 of the South Carolina Rules of Civil Procedure, as amended; the Federal Arbitration Act, 9 U.S.C.§§ 1, supported by Munoz v. Green Tree Fin. Corp., 343 S.C. 531, 538, 542 S.E.2d 360, 363 (2001), and Bradley v. Brentwood Homes, Inc., 398 S.C. 447, 455, 730 S.E.2d 312, 316 (2012) which states “There is a strong presumption in favor of the validity of arbitration agreements because of the strong policy favoring arbitration," et seq.; as well as applicable Federal and South Carolina jurisprudence in addition to the pleadings on file.

 

6. The Defendant elects arbitration to settle this dispute.

 

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.

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I should probably not think this far ahead and concentrate on getting the mtc granted but I keep looking over things trying to decide what to do if the mtc is denied. Once I filed the mtc I received a packet from midlands attorney with some cc statements, a bill of sale and an affidavit ( Im not sure what all is required for the jdb to prove his case). The affidavit only states that a "pool of accounts" was sold, not my account specifically. I've also looked up the name that claims to be the media representative for synchrony bank and cannot find him on the internet except as a notary for the state of FL. Not sure if I should bring that up or look into it anymore. Im running out of time and need to focus on getting the mtc granted. Thanks everyone for the help. Any responses will be greatly appreciated from my last 3 post.

@BV80 @nobk4me @BackFromTheDebt @kittycat @admin

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10 minutes ago, Blue1234 said:

Anyone? I only have until tomorrow morning. Help!

You are trying to do a few weeks' worth of stuff in one day.  You can't do that.

Just prepare for your MTC hearing.  You should win that.  Other possibilites are the MTC is rejected, or a decision will be made later.

If you get the MTC, then file in arbitration right away, but wait a little while to pay.  Make sure you send copies of everything to the opposing attorney.

If your MTC is rejected, move for a stay to file an interlocary (sp) appeal.  If that is not given, move for a stay to prepare your defense.  If either stay is granted, file your appeal.  

If worst comes to worst and you have to defend your case on the spot, bring up the points you brought up here.  Maybe it will work.  

 

Most of the time you win this.  Don't overthink it.  Try to get some sleep tonight.  

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Thank you! I talked to the lady that schedules the hearing last week and she told me that the trial would proceed immediately if my mtc was denied and it kind of made me panic. I was originally under the impression that this hearing was just for the mtc. I guess I'll find out tomorrow. 

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What just happened?!? I went into court and of course the lawyer pulled me aside and tried to set me up on a payment plan. I declined. He explained how expensive arbitration was and I told him that I understood.

We went before the judge and he stood up and told the judge that I demanded arbitration, that there was a valid clause, and thats what we would do if I agreed! He asked for the case to be dismissed! I literally only said one word to the judge! I am in awe right now. I was not expecting it to be so easy!

What do I do now? File with jams or aaa? Wait for the court to send me something? You people here are so awesome!

 

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Well, so far so good. Sometimes it really is that easy

You probably worried too much.  :-)

 

The big question is, did the judge dismiss with or without prejudice?  Without is far more likely, but you need to know that.  You also need to know if the court ordered you to file in arbitration.  

The thing is, if the case was dismissed without prejudice, you are expected to file in arbitration.  If you fail to do so. they could file again, and fight your MTC by saying you waived your rights to arbitration.

I usually file in JAMS and then contact the other side about a settlement, usually offering a mutual dismissal of all possible claims and counter claims, and try to get that done before the fees have to be paid.  But your situation is a little different.  

If I were you, I would wait a few days.  Then, early next week, send off an email to the opposing attorney offering a mutual dismissal with prejudice.  Perhaps include a draft of what you are planning to file in JAMS.  Mention it is a draft, and if they agree to a mutual dismissal, you won't file in JAMS.  

 

 

 

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