Being sued by midland credit management, court is this wednesday (someone please help)

[jgal89]

I am in the process of preparing a motion to compel arbitration. I wanted to share what I have to see if it is sufficient. I am having a Zoom court hearing this Wednesday. 

Also when submitting the agreement as an exhibit, do i include all pages or just those with discussion of arbitration?

 

 

1. Who is the named plaintiff in the suit? midland credit management

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

3. How much are you being sued for? 2827

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

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? 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? A few phone calls

9. What state and county do you live in? Fulton County GA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2019

11. When did you open the account (looking to establish what card agreement may be applicable)? 2017

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

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  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) YES just today

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? Responded a while ago with a denial of all claim and court is this Wednesday

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. Didnt send evidence I dont think

18.  How did you find out about this site? google

 

[BackFromTheDebt]

You need to edit this to remove your name.  
Please put a redacted version instead.  

[jgal89]

thank you. I edited it. Didnt notice it in that last spot

[BackFromTheDebt]

Okay. 
 

Here is my critique. 
 

1.  It is good that you put excerpts from the card agreement in the motion.  What you absolutely need to do is enclose the entire agreement along with the complaint  as well.  
 

2. It appears your copy of the agreement was not included with the complaint.  Whenever I included an agreement I always included an affidavit that the agreement was the true and proper agreement. 
 

3.  Look at some of the MTC s others have filed.  They tend to include the ATT v Concepcion case in which the Supreme Court ruled that arbitration agreements had to be followed.  It would be good to include that as well. 

[jgal89]

Thank you. I noticed on a couple other threads that there is a link to where I can find the original agreement. I happen to actually have the actual one i walked out of the store with but I was looking for an electronic copy and the one on the banks website was updated recently and the information differs.

[BackFromTheDebt]

Is the arbitration provision in the original?

If so, make a photocopy and include an affidavit that this is a true and correct copy of the agreement which you have saved since you opened the account.  

[jgal89]

It is in there. Would i need to photocopy the whole agreement or just the pages with arbitration on it.

[BackFromTheDebt]

Every page.  That way the judge can tell it is the proper agreement.  

[jgal89]

Hi there,

       I am currently in the zoom court room and was told by a mediator that sometimes if they do take to arbitration and if they win I may incur that cost as well. As that ever the case. Should I be worried and try to settle instead? Lawyer is confused a bit and keeps reading the contract and says he is going to ask for 30 days so he can present to client.

[BackFromTheDebt]

11 minutes ago, jgal89 said:

Hi there,

       I am currently in the zoom court room and was told by a mediator that sometimes if they do take to arbitration and if they win I may incur that cost as well. As that ever the case. Should I be worried and try to settle instead? Lawyer is confused a bit and keeps reading the contract and says he is going to ask for 30 days so he can present to client.

There is more than one type of arbitration.  Sometimes the court-ordered mediator will do arbitration.  That is completely different from the contractual arbitration as in JAMS.  

It is extremely rare that the consumer would be stuck with the fees for JAMS

 

EDIT TO ADD:  Make sure you let them know you want JAMS, not arbitration done by the mediator.   

As for the 30 days, the contract is the contract.  Just press the point that you are demanding the contract be enforced.  Why do they need 30 days to figure out if they agree to the contract?

[jgal89]

3 minutes ago, BackFromTheDebt said:

There is more than one type of arbitration.  Sometimes the court-ordered mediator will do arbitration.  That is completely different from the contractual arbitration as in JAMS.  

It is extremely rare that the consumer would be stuck with the fees for JAMS

Ok great. I was reading all of the agreement and it didnt appear to be the case so I stuck with it. Thank you!

[BackFromTheDebt]

Just now, jgal89 said:

Ok great. I was reading all of the agreement and it didnt appear to be the case so I stuck with it. Thank you!

Good for you.  Act like one of the Monty Python vikings:

 

JAMS JAMS JAMS JAMS, 

JAMS JAMS JAMS JAMS

JAMS!  Wonderful JAMS!

[jgal89]

2 hours ago, BackFromTheDebt said:

Good for you.  Act like one of the Monty Python vikings:

 

JAMS JAMS JAMS JAMS, 

JAMS JAMS JAMS JAMS

JAMS!  Wonderful JAMS!

Ok so the lawyer ask for the case to remain open so that i can submit the arbitration to JAMS. They pushed it back 120 days. What I'm confused about is who should be filing. If they are the ones with the complaint, shouldn't they be the ones initiating the arbitration request. 

 

Where should i go from here? Is there a chance they will drop it during these 120 days or do they just think I'm not capable of filing it and hope to take me bacl to court? Should i just get it started and pay the $250?

[BV80]

19 minutes ago, jgal89 said:

Ok so the lawyer ask for the case to remain open so that i can submit the arbitration to JAMS. They pushed it back 120 days. What I'm confused about is who should be filing. If they are the ones with the complaint, shouldn't they be the ones initiating the arbitration request. 

 

Where should i go from here? Is there a chance they will drop it during these 120 days or do they just think I'm not capable of filing it and hope to take me bacl to court? Should i just get it started and pay the $250?

If there is no court order instructing the plaintiff to file, you should probably do it.  Otherwise, it won’t be filed, and the plaintiff will try to argue that you are not serious about the process.  Let’s see what @BackFromTheDebtsuggests.

[BackFromTheDebt]

36 minutes ago, BV80 said:

If there is no court order instructing the plaintiff to file, you should probably do it.  Otherwise, it won’t be filed, and the plaintiff will try to argue that you are not serious about the process.  Let’s see what @BackFromTheDebtsuggests.

I agree.  
 

Get this filed soon. Send a copy of everything to the opposing attorney. 
Save a copy for the court just in case. 
Don’t pay the JAMS fees right away.  
Instead, contact the opposing attorney and offer a settlement of mutual dismissal of everything with prejudice in both JAMS and the court case.  If they accept, you have won without having to pay anything. 
 

If they ignore your offer, pay the JAMS fees.  If the case gets closed for non-payment, send copies of everything to the court and move for a dismissal with prejudice as a sanction for them disobeying the court order to arbitrate. 

[BV80]

43 minutes ago, BackFromTheDebt said:

 

If they ignore your offer, pay the JAMS fees.  If the case gets closed for non-payment, send copies of everything to the court and move for a dismissal with prejudice as a sanction for them disobeying the court order to arbitrate. 

Is there a court order to arbitrate?

[Brotherskeeper]

@jgal89Do you have possible/plausible consumer law violations that you can claim? Do you plan to file a demand in JAMS for the debt amount plaintiff claims you owe, or will you make plaintiff Midland file its claim against you as a counterclaim and pay that fee as well? Have you read fisthardcheese's pinned arbitration thread?

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

Did the judge grant a stay of case for 120 days so the arbitration claim could be filed? It doesn't sound like the judge granted your motion to compel and signed an order, correct? 

 

[BackFromTheDebt]

1 hour ago, Brotherskeeper said:

@jgal89Do you have possible/plausible consumer law violations that you can claim? Do you plan to file a demand in JAMS for the debt amount plaintiff claims you owe, or will you make plaintiff Midland file its claim against you as a counterclaim and pay that fee as well? Have you read fisthardcheese's pinned arbitration thread?

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

Did the judge grant a stay of case for 120 days so the arbitration claim could be filed? It doesn't sound like the judge granted your motion to compel and signed an order, correct? 

 

In the old days, before we knew about the MTC, we used to always file a motion to stay.  

In the motions I had for a stay, the judge would order that I initiate arbitration.  In one case, the judge specifically ordered I initiate in JAMS, because the opposing attorney had only been to arbitration once, and that was in JAMS.  So I was the second CIC poster to file in JAMS against that law firm.  

[jgal89]

8 hours ago, Brotherskeeper said:

@jgal89Do you have possible/plausible consumer law violations that you can claim? Do you plan to file a demand in JAMS for the debt amount plaintiff claims you owe, or will you make plaintiff Midland file its claim against you as a counterclaim and pay that fee as well? Have you read fisthardcheese's pinned arbitration thread?

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

Did the judge grant a stay of case for 120 days so the arbitration claim could be filed? It doesn't sound like the judge granted your motion to compel and signed an order, correct? 

 

I know close to nothing about what I am supposed to claim in arbitration. I'm super lost on what to say when i file JAMS. 

 

The judge did not grant the motion, he stayed it for 120 days so thst i can initiate the process in jams. I feel that the lawyer didn't feel like id follow through. Good to know that i can wait to pay fees, i thought upon filing fees had to be paid. 

 

Once I file, are they able to not proceed? Is JAMS not mandstory for them once i file a complaint. 

[BackFromTheDebt]

I am not sure what to put in the JAMS complaint for your case.  Every time I filed in JAMS I had legitimate claims against the other party, so I filed my claims against them and most of them filed their counterclaims.  Cap 1 never paid their fees, so the case was closed.

I would never pay the initial filing fee at first, and only paid it when I had to.  

For my first case, I was able to work out a settlement before anyone paid any fees.  For Cap 1, the other side stupidly claimed in court that they would pay my fees, but never did.  For my other cases the other side paid their fees so I had to pay mine.  

The reason I recommend waiting to pay the fees is that you have a little time to negotiate a settlement.  If you can't, then pay your fees.

In theory JAMS is mandatory once you file.  In practice, it is extremely common for JDBs to simply not pay the fees and have the case closed due to non-payment of their fees.  

[Brotherskeeper]

On 4/19/2021 at 7:39 PM, jgal89 said:

I happen to actually have the actual one i walked out of the store with but I was looking for an electronic copy

Have you gone over all of Midland's attached paperwork to see if you can find any discrepancies in the balance total, interest rates charged, late fee, over-limit fee etc. between your original agreement's terms and what Midland has claimed? What about on your credit reports from TransUnion, Experian or Equifax?