Sued by MCM in NC

[madaboutu45]

being Sued by Midland - in North Carolina

Ok i have been reading some of the good information in this group but was just wondering if any one from NC is going through this or has been through this... MCM sent me summons & compliant i responded with my answers and filed with the courts. Then I received their interrogatories, request for documents, and admission. I really don't know how to handle this. I know i need to BUT I don't have an attorney. It is for a old CC debt last payment made 2019. They brought the debt from Cit in 03/20. They have attached the affidavit, bill of sale, statements a letter they said they sent to me but i did not received along with other stuff. It looks like they are following the laws but not sure, not sure if i have a case. any advice or steps to take and what to look for? Any idea how to response to interrogatories and admissions as well as how to send them interrogatories and request for doc and admission. I don't have the funds to pay !!!!!!

 

[nobk4me]

Is arbitration an option?  That's the best way to beat a JDB.   Is there an arbitration clause in the OC's  cardmember agreement?  Is there a small claims exception?  Are you in small claims court?

Note that if you want to use the arbitration strategy,  file the MTC Arb ASAP,  do not send them any discovery, and respond to their discovery with an OBJECTION for each one, on the grounds that arbitration has been elected, there is a jurisdictional motion before the court, and the scope of discovery is to be determined by the arbitration forum.  The reason for this is, if you go too far in litigation, such as participating in discovery, you can waive your arb rights.

Best info on arbitration is here:

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

[madaboutu45]

Oh thank you for this and I pulled up the terms of conditioner from Citibank who they say the original critter is it does say that arbitration is an option the 27th of  June is my 30 days my to respond to the discovery the interrogatories, produce for documents  and answers so I shouldn’t respond to any of that and then just request arbitration ... me not responding is admitting if I don’t respond your thoughts

[madaboutu45]

It’s in civil District Court

[nobk4me]

1.  File the MTC Arb as soon as you can.  There are examples in the arbitration thread I cited.  Do this first.  File it with the court and send a copy to the plaintiff's attorney.

2.  Answer their discovery with an OBJECTION to each one.  Like this:   OBJECTION.  Arbitration has been elected, and a jurisdictional motion is pending before the court.  The scope of discovery is to be determined by the arbitration forum.   Copy and paste this for every request they sent you.

[madaboutu45]

Thank you thank you

i called the courthouse today and was told it is already flagged for arbitration is that different ....tomorrow I will go up there and try to file that motion... the clerk of court said is already flagged for arbitration... so she had me confused... I talked to AAA and was sent the arbitration process and forms to fill out

[madaboutu45]

here is what i found on Arb in NC

CourtOrderedArbRules.pdf

[BV80]

43 minutes ago, key22 said:

here is what i found on Arb in NC

CourtOrderedArbRules.pdf 56.72 kB · 1 download

Court ordered arbitration is not the same as private contractual arbitration. 

[Bulldoger]

Just in case it's not clear:

41 minutes ago, BV80 said:

Court ordered arbitration is not the same as private contractual arbitration. 

So you don't want court ordered you want contractual arbitration the one in the credit card agreement (AAA JAMS). To stop your case being moved to Court ordered arbitration you need to do what @nobk4me stated.

 

2 hours ago, nobk4me said:

1.  File the MTC Arb as soon as you can.  There are examples in the arbitration thread I cited.  Do this first.  File it with the court and send a copy to the plaintiff's attorney.

2.  Answer their discovery with an OBJECTION to each one.  Like this:   OBJECTION.  Arbitration has been elected, and a jurisdictional motion is pending before the court.  The scope of discovery is to be determined by the arbitration forum.   Copy and paste this for every request they sent you.

  You need to file it quick IDK rules in NC you may have to amend answer, request or schedule a hearing on MTC also.  

[madaboutu45]

thanks so very much......... in doing research on  the NC laws.... here what i found and with this information that was sent in the summons it looks like MCM has all this stuff...what do you think

 

§ 58-70-115.  Unfair practices.

No collection agency shall collect or attempt to collect any debt by use of any unfair practices. Such practices include, but are not limited to, the following:

(1)        Seeking or obtaining any written statement or acknowledgment in any form containing an affirmation of any debt by a consumer who has been declared bankrupt, an acknowledgment of any debt barred by the statute of limitations, or a waiver of any legal rights of the debtor without disclosing the nature and consequences of such affirmation or waiver and the fact that the consumer is not legally obligated to make such affirmation or waiver.

(2)        Collecting or attempting to collect from the consumer all or any part of the collection agency's fee or charge for services rendered, collecting or attempting to collect any interest or other charge, fee or expense incidental to the principal debt unless legally entitled to such fee or charge.

(3)        Communicating with a consumer whenever the collection agency has been notified by the consumer's attorney that he represents said consumer.

(4)        When the collection agency is a debt buyer or is acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor or otherwise attempting to collect on a debt when the collection agency knows, or reasonably should know, that such collection is barred by the applicable statute of limitations.

(5)        When the collection agency is a debt buyer or acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor, or otherwise attempting to collect on the debt without (i) valid documentation that the debt buyer is the owner of the specific debt instrument or account at issue and (ii) reasonable verification of the amount of the debt allegedly owed by the debtor. For purposes of this subdivision, reasonable verification shall include documentation of the name of the original creditor, the name and address of the debtor as appearing on the original creditor's records, the original consumer account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of the amount claimed to be owed, including all fees and charges.

(6)        When the collection agency is a debt buyer or acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor to collect on a debt without first giving the debtor written notice of the intent to file a legal action at least 30 days in advance of filing. The written notice shall include the name, address, and telephone number of the debt buyer, the name of the original creditor and the debtor's original account number, a copy of the contract or other document evidencing the consumer debt, and an itemized accounting of all amounts claimed to be owed.

(7)        Failing to comply with Part 5 of this Article.  (1979, c. 835; 2009-573, s. 5.)

[madaboutu45]

i reached out to AAA and this is what they sent i am assuming that i have to pay if i initiate it....do you know if that is true because reading the trems of the CC it stated that they will pay...

Consumer Fee Schedule.pdf The_Home_Depot_Consumer_Credit_Card_Agreement.pdf

[nobk4me]

If the cardmember agreement says they will pay all fees, not you, that that trumps the arb forum rules.

[madaboutu45]

Also I meant to say when the attorney office sent me my interrogatories and request for documentation and admission they also sent a copy of somebody else that they  was suing in the state of North Carolina as well so I have all of their information is there anything that I can do about that I will try to reach out to that person to  let them know at least that their information was in my packet that was sent by the attorney office

[nobk4me]

17 hours ago, key22 said:

Also I meant to say when the attorney office sent me my interrogatories and request for documentation and admission they also sent a copy of somebody else that they  was suing in the state of North Carolina as well so I have all of their information is there anything that I can do about that I will try to reach out to that person to  let them know at least that their information was in my packet that was sent by the attorney office

Probably would be considered bona fide error . . . and the party wronged was the other defendant, not you.  I would return it to the attorney's office with a cover letter that explains that this was included in your package, probably by mistake.

[madaboutu45]

Thanks will do

[madaboutu45]

help needed… it looks like I will not be able to do the arbitration with AAA it’s going to require me to pay the fee because I’m initiating it so that’s a no go I don’t have the funds for that at this time but I wanted to get some feedback on how I should respond to the interrogatories and omission from MCM

 

their interrogatories are as follows

1. State your full correct name and any other name or nickname by which you have ever been known

me- will give name as the name that is showing on the compliant is not updated 

2. State your present complete in residential address

Me- will provide address 

3. State the name, nature, duration in place of each employment or occupation which you have had doing the five years prior to this date

me- i can give the name it only been one employer ..bit do need to answer that what does that have to do with anything 

 

4. State each trade name or assume name under which you have done business within the past five years and the complete address of each place where business was conducted

Me***I have not done business- not sure how say it ***

5. stay the full name and present address of each person which you have had engage in any partnership or business venture in the past five years

Me- no business ** not sure how to say it**

6. if you assert that the claim herein sued upon is the obligation of anyone other than yourself then state the name and present address of each search person or entity along with all the facts upon which you rely in support of such position including your relationship to such other person or entity

Me- I never said they such be suing anyone else 

7. request for production of documents which you contend  relate to and/or support the answer given to immediate proceeding interrogatory

Me-  no documents 

8. State fully completely and in length the factual basis of each and every defense which you now assert or will insert in this action

Me- I don’t understand this one (i I guess I will talk about my affirmation of the defense  that they have not provided the proper records showing ownership) 

9. request for production of documents which you content relate to and/or other support to answer given immediately preceding interrogatory

Me- no documents to give 

10. State the name occupation business address and telephone number of each person who has reliable information relevant to support the contentions you make in your defense in the matter together with a summary of the information that the person has knowledge of

Me- there is no one

11. request for production of documents which you content related to and/or support the answers given to the immediate proceeding interrogatory

Me- no documents 

12. State at length and verbatim the content  of each and every document written paper or letter which you intend to utilize as a basis or grounds for defense in this action or which you intend to offer into evidence upon the trial of this action in addition state the date in addition state the date and circumstances of preparation or receipt of each such item

Me-i have no evidence 

13. request for documentation

Me- no documents 

14. If you have not admitted  any one or more of plaintiffs request for admission serve up on you of this day herewith, then with respect to each such a request not fully admitted,  state all facts  known to you directly or indirectly which you contend  to be a basis for denial or refusal  to admit each search request

Me-lost here i am not going to admit to all of their requests if it doesn’t apply 

 

15. request for document

Me- no documents 

16. State verbatim and communication or admission  by the plaintiff’s  that you contend to support your defense in this action

Me- not sure 

17. request for documents

Me- no documents 

18. As to each of plaintiffs request for admission that you have denied based upon a lack  or insufficiency of knowledge provide a complete description of any and all actions you have taken or inquire that you have made to provide the answer to such a request for admission

Me-are they talking about my response to summons my answers or my response to the request for admission that was sent..So basically I can say the copy of the assignment has not been provided by the debt collector to show ownership

19. request for documents

me- no documents 

20. please state with particular each and every payment made by you or on your behalf to the plaintiffs  Citibank N. A the Home Depo consumer or any other predecessor along with the date of the payment the specific bill, account or invoice such payment was to apply,  the balance you alleged  was owing at  time of  said payment, to whom the payment was made, the purpose of the payment and the and indication  that the payment was received by the plaintiffs 

Me- I don’t have this its been since 2018

21. Request for  documents

me- no documents 

 

Admissions request 

1.you have here too for receive original or copies of the documents attached to plaintive complaint

Me- admit copies are attached 

2. each of documents attached to plan a complaint is genuine original documents and or a true copy there of

Me- denied as defendant cannot verify that these documents are genuine

3. Citibank NA extended credit to defendant pursuant to a(n) the Home Depo consumer credit card account

me- admit offended do you have Home Depo consumer credit card

4. defendant accepted and/or use credit reference in place of complaint

me-admit defendant use the Home Depot consumer credit card not produce by plaintiff

5. The principal balance is accurate

me- denied plaintiff  has not provided proof to have ownership of the account in compliant/ lawsuit as so defendant  doesn’t have knowledge of accurate amount

6. The balance sued for in this action is due and owing by defendant to plaintiff

me- deny plaintiff  has not yet provided proof of ownership of this account

7. written demand has  been made by plaintiff  upon defendant for payment of the claim that is the subject of this action more than 30 days prior to the date hereof 

Me- Denied defendant never received any documentation requesting payment

8. defendant is not entitled to any credits offsets or deductions except as have previously been deducted

me- denied plaintiff  has yet to provide proof of ownership of this account

9. there are no facts upon which the defendant relies as a basis for any defense in this action

me- denied plaintiff  has yet to provide proof of ownership of this account

10. there are no documents written letters records or papers of any sort which defendant intends to utilize as evidence of or a basis for any defense in this action

me- i have nothing 

11. defendant agrees to pay interest on the outstanding credit balance

me- denied defendant has yet to provide proof of documentation  to show ownership of this account

12. interest on the claim asserted herein by plaintiff is due in the amounts establish by applicable law and by the charges shown in the attached to plaintiff  complaint

Me- deny plaintiff  has yet to provide the actual terms and condition in ownership of this counsel this can be calculated correctly

13. every statement or allegation contained  in plaintiffs  complaint is true and correct

Me- deny plaintiffs  has yet to provide defendant with documents to show ownership of this account

14. defendant receive statements of account copies of which are attached hereto as exhibit A

me-i did receive attachments but….

15. defendant did not object to charges on the statement other account

me- denied plaintiff  has yet to provide accurate original documentation for defendant to review…

I have no idea here

 

Thanks for your help 

[Bulldoger]

On 6/8/2021 at 3:33 PM, nobk4me said:

If the cardmember agreement says they will pay all fees, not you, that that trumps the arb forum rules.

there is a debt dispute clause which makes Key22 have to pay $200.  On the other hand there is a clause that they cannot go after their cost to arbitrate, fees and attorney cost if they win. So best they can hope for is losing 1700-5000 dollars and getting a uncollectable Judgment. How much are they after? 

Key22 you don't have to pay right away. If you filed MTC request hearing this will stop court proceeding in district court.  Don't worry about the $200 at this time.  For all you know after you file the MTC MCM may just file a no-suit or dismiss without prejudice, they have been known to do that.  

Going down District Court you will need to learn the rules of the court for your state, The code for rules of evidence in your state. How to handle a summary judgment, how to cross examine, how to prepare and file briefs. 

It is much easier and has been more successful less stressful to go with the arbitration. That's why everyone is suggesting you go that route because going the other route requires so much more time researching and learning.  In court the JDB has the years of experience judicating cases and has a bag of tricks that will trip you up.  Just as the  interrogatories and admissions they just sent you. 

 

 

 

 

[nobk4me]

1 hour ago, Bulldoger said:

there is a debt dispute clause which makes Key22 have to pay $200.  On the other hand there is a clause that they cannot go after their cost to arbitrate, fees and attorney cost if they win. So best they can hope for is losing 1700-5000 dollars and getting a uncollectable Judgment. How much are they after? 

Key22 you don't have to pay right away. If you filed MTC request hearing this will stop court proceeding in district court.  Don't worry about the $200 at this time.  For all you know after you file the MTC MCM may just file a no-suit or dismiss without prejudice, they have been known to do that.  

Going down District Court you will need to learn the rules of the court for your state, The code for rules of evidence in your state. How to handle a summary judgment, how to cross examine, how to prepare and file briefs. 

It is much easier and has been more successful less stressful to go with the arbitration. That's why everyone is suggesting you go that route because going the other route requires so much more time researching and learning.  In court the JDB has the years of experience judicating cases and has a bag of tricks that will trip you up.  Just as the  interrogatories and admissions they just sent you. 

 

 

 

 

Agree, often once the MTC Arb is granted, the JDB will dismiss the case, meaning you don't have to file with AAA at all.   If you do have to file arb, you don't have to pay right away, and maybe you could ask to make partial payments, say, $50 per month.   And, if you can't afford the $200 AAA fee, how can you afford the judgment they are likely to get?  Can you afford wage garnishment and bank levies?

And, are there any violations of consumer laws you could raise?  Then your arb claim is based on the violations, not debt dispute.  They would have to counterclaim for the debt.  And, check your state's case law.  There may be precedent which requires the plaintiff, not the defendant, to initiate arb, which means they pay all fees. But you would have to demand that in your MTC Arb.

Finally, if you do answer their discovery, I would object to interrogatories 3, 4 and 5.  They have nothing to do with whether you owe the debt, and are a fishing expedition looking for where they can garnish wages.  Those questions are appropriate for a debtor's exam, after they get a judgment.  NOT at this stage of litigation.

[madaboutu45]

2 hours ago, Bulldoger said:

there is a debt dispute clause which makes Key22 have to pay $200.  On the other hand there is a clause that they cannot go after their cost to arbitrate, fees and attorney cost if they win. So best they can hope for is losing 1700-5000 dollars and getting a uncollectable Judgment. How much are they after? 

Key22 you don't have to pay right away. If you filed MTC request hearing this will stop court proceeding in district court.  Don't worry about the $200 at this time.  For all you know after you file the MTC MCM may just file a no-suit or dismiss without prejudice, they have been known to do that.  

Going down District Court you will need to learn the rules of the court for your state, The code for rules of evidence in your state. How to handle a summary judgment, how to cross examine, how to prepare and file briefs. 

It is much easier and has been more successful less stressful to go with the arbitration. That's why everyone is suggesting you go that route because going the other route requires so much more time researching and learning.  In court the JDB has the years of experience judicating cases and has a bag of tricks that will trip you up.  Just as the  interrogatories and admissions they just sent you. 

 

Thank

they are stating the amount owed is 2,767.

Per the AAA it has to be paid at time of filing

right that is a lot i have loosing so much sleep these past couple of months.

right right thanks so much I am just trying to put it all together....

what about this part below

 

here they talk about it being unrelated to debt collection

2 hours ago, Bulldoger said:

 

 

 

[madaboutu45]

42 minutes ago, nobk4me said:

Agree, often once the MTC Arb is granted, the JDB will dismiss the case, meaning you don't have to file with AAA at all.   If you do have to file arb, you don't have to pay right away, and maybe you could ask to make partial payments, say, $50 per month.   And, if you can't afford the $200 AAA fee, how can you afford the judgment they are likely to get?  Can you afford wage garnishment and bank levies?

And, are there any violations of consumer laws you could raise?  Then your arb claim is based on the violations, not debt dispute.  They would have to counterclaim for the debt.  And, check your state's case law.  There may be precedent which requires the plaintiff, not the defendant, to initiate arb, which means they pay all fees. But you would have to demand that in your MTC Arb.

Finally, if you do answer their discovery, I would object to interrogatories 3, 4 and 5.  They have nothing to do with whether you owe the debt, and are a fishing expedition looking for where they can garnish wages.  Those questions are appropriate for a debtor's exam, after they get a judgment.  NOT at this stage of litigation.

Thanks

You are right i can afford a judgment. no i can not afford wage garnishment and bank levies ...oh  my thought of all of this is making me sick.

As it relates to violations of laws , the only thing i heard about lately is how the letters that are sent from JDB are a violation HIPPA ...so i saw a video over the weekend and it talked how a JDB was asked how are the letters produces and by whom,  if they are sent to an outside company that should happen as by law they should  not provider my information to anyone. put i have no proof of that

 

yes so that is why i put  this below on here so maybe i dont have a case for Arb.

when you say They would have to counterclaim for the debt you mean MCM right

So in objection to 3,4,5 i can state "objection as this is  not relevant to the case at hand"  or does it need to be more

 

Thanks

[Bulldoger]

This says they will pay "your share" if unrelated to debt collection. Yours is so you just have to pay $200.  But it also says they will not recover fees unless case is frivolous and how can that be when it's their case. 

See how they even spell out that if you filed answer, or participated in discovery you can still file a MTC right up to  trial date. 

[Bulldoger]

here is a paper that expressly shows how to file an MTC. It has case law and tells the rules that apply in preparing and filing the MTC. 

Compelling and Staying Arbitration in North Carolina.pdf

[Clydesmom]

1 hour ago, key22 said:

As it relates to violations of laws , the only thing i heard about lately is how the letters that are sent from JDB are a violation HIPPA

NO.  Just NO.  HIPAA relates to MEDICAL information only.  It has NOTHING to do with credit cards.  NOTHING.  The information you received on another litigant's case is a violation of the FDCPA that person can use not an FDCPA violation you can use in yours.  What I would do is send that information to the litigant it does belong to and alert them to the FDCPA claim.  I would also use copies of it in my defense to challenge the accuracy of their documents since their upkeep and tracking is so sloppy and unchecked they sent another party's case information to me in direct violation of the FDCPA and possibly state laws.

What you are sorely missing is that the goal is not to actually go all the way to arbitration but that it gets so expensive for Midland they simply drop it.  All you need to do right now is follow all the steps.

[madaboutu45]

man thank you... no i am here to listen an learn i am afraid but i will go afraid..i TRULY thank you for this because i just want to give up. NO i am listening i have never done this and i am so overwhelm so thank you ..New out on this staring now

 

[madaboutu45]

i will review an start over ..nothing to it but to try