Summons for Judgement - Midland

[sillycanoe]

I just received a summons for Judgement that I have to reply. 
Original creditor was Paypal Credit/Syncrony, bought by Midland. This is in WI.

I do not know how to write up the answer letter and if its even worth fighting. 
 

I would think that is admitting to the debt. 
I am looking for any help possible. I cannot afford a lawyer.

[nobk4me]

To clarify:  have you just been sued, or do they have a judgment already? 

@BackFromTheDebt knows about WI law.

[sillycanoe]

I have just been sued. I have a summons and have to answer in a couple weeks.

[BackFromTheDebt]

You can beat this.  Why pay them anything?  That won’t help your credit rating and will just cost you money.  
 

The best lawyer for this case in Wisconsin won’t take Kohn cases, so it’s better for you to fight them by yourself.  And win. 

On one hand, Kohn is the best debt collection law firm in Wisconsin.  They don’t make mistakes.  
 

OTOH they rarely violate the law   I am hoping that means they won’t foolishly object to arbitration   

What county are you in?  

Also, what do you mean by you have to reply by June 12? Do you need to file an answer by that date or is that a date to appear in small claims court?  If that is a filing deadline, file a few days ahead of time to be safe.   If it is an appearance date, bring all your documents with you.   I have been in small claims court several times in Dane County and it is different every time.   Sometimes they had a guy meet the parties and work things out with them at a table in a small room.  Once it was a hearing before a magistrate who had a computer to look up the law on the fly   

There are two possible strategies. 
 

A.  In some cases, if you are in dire financial straits, especially from a medical condition, Midland will drop the case and forgive the debt.  
If that is the case, call them and see what you need to do .  Since you talked about a payment plan they probably doesn’t apply to you   

B. Otherwise you need to go the arbitration route.  
 

That entails:

 

1.  Get a copy of the agreement. If Kohn did not provide one, you can download one from the CFPB web site.   

Synchrony has a fantastic arbitration provision, which you can use to beat them.  
 

2.  Look up threads on arbitration on this forum to see how to write an MTC. You may have questions.  For example, every motion you file must have the case number (SC xxxxxx) and the names of the parties (Midland v You)
 

3. When you either file or show up in court, have 3 things:   An answer with improper venue as an affirmative defense, the entire copy of the card agreement, and the MTC.  
 

4. When you meet with the facilitator or magistrate, be prepared to explain that the arbitration provision is in the agreement, and the US Supreme Court says you have the right to exercise that right.  I doubt Kohn will object, but if they do just hammer the point that the OC wrote the contract and it must be followed.
 

5. Sometimes the magistrate doesn’t understand the law very well, even in Dane and Milwaukee Counties.  If the magistrate rules against you, you have an automatic appeal to Circuit Court where you will usually face a more knowledgeable judge.  There was a case in Dane County someone posted on this board where the magistrate ruled against the MTC and the defendant appealed to Circuit Court and won.   
 

6. You will have questions.  That is what we are here for. 

[sillycanoe]

 

How do I write the answer and what would my answers be?

[BackFromTheDebt]

This all depends on your comfort level.  

I don't know how much of a hardship taking time off from work would be for you.  That is your decision.  

You pretty much have 4 choices.  For any kind of settlement, the earlier you do it the better.  It would have been better to do that before getting sued, but I'm happy you looked us up as soon as you were sued.  Sometimes we get posts with "I've got court tomorrow what do I do?".

1. You could work out a payment plan.  That usually involves a stipulated judgment, meaning you don't contest their case and if you ever miss a payment they can get a judgment for the rest without going to court.  They usually want everything for a payment plan.  Sometimes they want interest as well.  If they don't want interest, $50 a month will take you 5 years.  They may or may not agree to it.  Usually they want more than $50 a month, and to be paid off in less than 5 years, or else they will want interest.  You could ask, but there is a strong chance they will say no.  

2. You could work out a lump sum settlement.  Again, this will cost you more today than it would have last month, but it will be cheaper today than if they get a judgment against you.  They might want more money than you have, but it doesn't hurt to ask.

3. Wisconsin Chapter 128.  This involves filing some forms, and it might take a court appearance.  This is a law in which you pay an administrative fee, and then pay off the debt interest free over a period of 3 years.  With the filing fees, etc. this may run $90 or $100 a month, but you can use this as a last resort.  Even after a judgment goes against you.

4. Arbitration.  Midland almost always runs away.  Not 100% of the time, but almost always.  You answer the case, and file an MTC.  This would require writing up some papers, and you might have to appear once in court, which could take you away from work.  It could save you as much as $3000.  

5. A judgment against you.  This means you either work out a payment schedule with them, or they garnish your wages.  You will NOT beat Kohn in court.  You either get them to go away with arbitration, or you will lose.  They are sharks.  They know their way around the courthouse. You don't.  

 

The way you answer -- sometimes the courts have standard forms for small claims.  Check your court's web site to see.  

In general, you need to put the names and the case number.  They will have certain paragraphs in their complaint.  Use the same paragraph numbers.  

Admit to your name.

Admit to your address.

Deny everything else.

Add on a section "Affirmative Defenses"  

Put something like this:

For a first Affirmative Defense: Improper Venue, due to an Arbitration clause in the contract.  The Card Agreement has an Arbitration clause.  The Defendant elects to invoke the Arbitration clause.  

 

Then, include the agreement.

 

Then, include the MTC.  You will need to do your homework on how to write the MTC.  Look up the arbitration thread.  There are many examples of a proper MTC.  You can post REDACTED (remove your name and address, etc.) copies of what you intend to file, and we can help you with the details.  

[sillycanoe]

So I want to file for the arbitration with the summons answer? Or do I want them to provide the proof of debt first?

Dumb question but what is arbitration?

Would I want to include anything else for defenses?

But I never got anything that I had to sign for.

 

[BackFromTheDebt]

Well, they probably sent you a letter at some point. If you don’t open your mail you wouldn’t see it.  
 

Arbitration is, effectively, an alternative court system.  Pro sports teams use arbitration for contract disputes at times.  
 

What happens is that the case is taken out of the court system and put into a private venue.  JAMS is the more favorable one for consumers, but AAA is fine. 
 

For consumer disputes, the debt owner has to pay almost all the costs, which are in the thousands, and sometimes tens of thousands.  Usually the consumer has to pay up to $250, but the Synchrony contract says they pay everything. 
 

In other words the cost to Midland would be far more expensive than the $3000 debt.  They cannot get their costs back from you.  In some rare occasions they can, but not for Wisconsin debts since attorney fees can’t be transferred to the debtor.  
 

Midland almost always walks away from arbitration.  If you file an MTC and are granted the MTC, they almost always walk away after you file in the arbitration venue.  
 

You really need to find the main arbitration thread and read it.  Find as many threads as possible with arbitration and read them.  The tactic of using arbitration as a weapon against the plaintiff started in Wisconsin and I was the second person to use the strategy in Wisconsin.  It works.  I wiped out 5 accounts with a total of at least $50-60k using arbitration. 

[sillycanoe]

Thanks for the info. 

So do I file the MTC with my answer or wait for that part?

[BackFromTheDebt]

File everything together. 
 

Your answer 

The MTC 

A copy of the card agreement that has the arbitration provision 

[sillycanoe]

For the card agreement do I use what I can find that is current or something from around the time the Alleged account went into defult?

[WhoCares1000]

You use the last agreement in force at the time you defaulted on the account.

[sillycanoe]

So on my answer, there is 18 things numbered out on thier complaint. Do number 1 through 18 and deny all of them except for my name and address

then do number 19 and put in affirmative defense then 20 would be the MCT?

[sillycanoe]

So here is what I got for the answer.
I am working on the MTC now. I am just trying to figure out how to have the corect format.

Attachment for answer.pdf SC-5200V.pdf

[BackFromTheDebt]

10 minutes ago, sillycanoe said:

So here is what I got for the answer.
I am working on the MTC now. I am just trying to figure out how to have the corect format.

Attachment for answer.pdf 7.9 kB · 1 download SC-5200V.pdf 153.7 kB · 2 downloads

Looks good. 

[sillycanoe]

2 hours ago, BackFromTheDebt said:

Looks good. 

Ok. So do I want to put case number and plaintiff/defendant info on the attached sheet?

Also I am trying to figure this whole MTC paper out. Do you know if I need to file for a hearing date along with it? Or just file it with this and let them figure a hearing date out?

[sillycanoe]

Final question maybe LOL.

I have my Answer with attached sheet (due to not enough room), exibit with the credit agreement, Motion to Compel Arbitration, Affidavit for credit agreement and again the credit agreement. Do I make 3 copies of these before I go to the clerk of court and have them all stamped then they get one copy, I get one copy, and send the Plaintiffs Lawyer the 3rd copy?

[sillycanoe]

OK everything is filed. Received a letter 2 days later for hearing set in about 2 months.

Is that normal or does that mean the judge is not going to grant the MTC?

[BackFromTheDebt]

I am not sure what is normal for that small claims court.  It doesn’t seem particularly strange.  It is likely the magistrate will rule on the MTC.  If you don’t like the results of the hearing you get an automatic de nova appeal to Circuit Court. 
 

Just prepare to argue the MTC and hope for the best.  If you have time prepare whatever defense you can to their suit in case the MTC fails.  If it fails, just appeal 

[WhoCares1000]

On 5/29/2021 at 9:30 PM, sillycanoe said:

OK everything is filed. Received a letter 2 days later for hearing set in about 2 months.

Is that normal or does that mean the judge is not going to grant the MTC?

The judge has to give the other side a chance to oppose your motion so yes, a hearing is normal and does not indicate whether a judge will grant or not grant your motion. As for 2 months from now, realize that courts have been moving slowly due to the pandemic, even in states like Wisconsin which has stayed open for the most part. Use the time to come up with possible opposition to your MTC and how you will counter the arguments.

[sillycanoe]

Received a letter that I have a notice of hearing on 6/24 as a status conference.

Received a packet from their lawyer saying my request for review was denied because it is my debt according to them. Included a whole bunch of
statements, bill of sale to midland, and a affidavit for a witness.

Is this a good thing or bad?

[sillycanoe]

Received a call the day before a hearing for Status conference that the Plaintiff filed a notice for dismissal.
Got the letter today and it says it was dismissed without prejudice.

Is that good or bad?

[WhoCares1000]

Your question was answered already but yes, it is good. The dismissal without prejudice means that the case is closed and they did NOT get a judgement against you which means you don't have to pay. They can refile but 1) the SOL restarts as if the case never happened which means all the time the case was open is counted against the SOL and 2) they can refile but most JDBs never refile and even those who purchase the debt down the line do not refile because they are all looking for the easy summary judgement, not deal with someone who puts up a reasonable fight.

So yes, congrats on the win and have a drink. You earned it.

[Kingme]

I just found this site and was in a similar  situation.. (in the state of wisconsin county of dane) the issue i have is I have already filed my affirmative  response  but with no MTC.. I have a court date in January,  is it possible  to file or add my MTC to my original  answer? I'm being sued by khon (midland)

[BackFromTheDebt]

5 hours ago, Kingme said:

I just found this site and was in a similar  situation.. (in the state of wisconsin county of dane) the issue i have is I have already filed my affirmative  response  but with no MTC.. I have a court date in January,  is it possible  to file or add my MTC to my original  answer? I'm being sued by khon (midland)

First off, please start your own thread.  You also need to give more information.  Is this Circuit Court or Small Claims Court?  That makes a difference.  

Second, I am in Dane County.  In the old days we used to file a Motion To Stay instead of a Motion To Compel.  And yes, I filed that twice in Circuit Court AFTER my answer and BEFORE a court date.  My MTS was granted both times.  One case was settled with an NDA, so I can't talk about that one, but I was very happy with the result.  The other case, Cap 1 back when they had an arbitration clause, had Cap 1 simply refuse to participate in arbitration and walk away from an alleged $15k debt.  

Third, Dane County has many of the most knowledgeable and consumer friendly judges in the state, in Circuit Court.  Small Claims is a mixed bag.  The top consumer lawyer in Wisconsin is in Madison, but he won't take cases against Kohn.  However, I have seen reports that he has instructed Small Claims clients to expect to have a bad magistrate, and then take advantage of the automatic appeal to appeal to Circuit Court.  Quite a few of his clients lost in Small Claims but won the same case in Circuit Court.  The only time I was in danger of getting a debt case in Small Claims I filed in JAMS before they filed in Small Claims.  That law firm dropped the Small Claims case when they realized I beat them to the punch.  

 

Fourth, Kohn has a reputation for having the sharpest lawyers of any debt collection law firm in the Midwest.  They will have the evidence; they won't make mistakes.  Arbitration is probably your best bet.  Midland usually doesn't like to follow through in arbitration.