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Being sued by Midland Credit Management (Capital One)


Butterfly1
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Today I received a response to my Request for Production. Within the documents, they resent the affidavit, statements (only from when it was sold to them), and Terms of agreement page (not original application or signature). I need to know if I should respond back to the response. 

Who is the named plaintiff in the lawsuit?

Midland Credit Management 

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

Smith Debnam Attorneys at Law

3. How much are you being sued for?

$571l26

4. Who is the original creditor?

Walmart sold to Capital One

5. How do you know you are being sued? 

Served a summons 

6. How were you served?

Sheriff'

 Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

North Carolina/ Cabarrus County 

10. When is the last time you paid on this account? 

07/2019

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

06/2014

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

3 years

13. What is the status of your case?

Answer filed with Request for Production 

Response received from Request for Production 

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

No

15. Did you request debt validation before the suit was filed?

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?

30 days (Answer was already submitted. I'm not sure if I need to respond to the response)

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Itemization (just a statement saying I owe $4055), affidavit saying they are an employee of Capital One and all debt is now owned by them, Bill of Sale from Capital One, a charge off statement from 02/2020, “important information about Capital One ” which is not an agreement but a page on how they credit accounts, how they calculate interest, and the billing rights summary, a copy of my last payment in Juky of 2019.

Has anyone dealt with a response after requesting for validati in Nouth Carolina or any state ? 

Any advice on how I move forward?  Thank you in advance for any help.

 

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@jon_117 @fisthardcheese

 

Synchrony sold Walmart to capital-one in October 2019. You defaulted in July before the transfer/sale.  A good defense is to try to move case to contractual arbitration. That is done by filing a Motion to Compel Arbitration (MTC) base on the Synchrony  credit card agreement active when you defaulted. Is the "a copy of my last payment in July of 2019." a Synchrony walmart statement? if so.  You are going to try to stop the case moving forward in court and move it to Arbitration with JAMS.  MCM does not follow into arbitration most of the time. Frankly, I haven't read about a member where MCM took them through Arbitration. 

Here is a thread about a case like yours in California recently, It has the same credit card and default before it was transferred to Capital-One like your case . 

  Read this tread to learn about MTC Arbitration Strategy. 

Between the two threads and some searching of NC court rules and contract law you should be able to move case to JAMS or settle before or after case is moved to JAMS or AAA.

 

Edited by Bulldoger
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 @key22 You can use the western sky MTC below as a starting template I just glanced it but it's like a golden ticket I would just plagiarize it. ( there are free Adobe editors online I also converted it to 1997 or later word doc) The 2016 file has good N.C. Law and with above how to pamphlet as how actually filed motion in court copy plaintiff etc.. you guys should knock this out of the park.  follow the rules attached to get it filed. 

western-sky-motion-to-compel-arbitration.pdf 2016_NCBC_58.pdf General-Rules-of-Practice-for-the-Superior-and-District-Courts-Codified-10-May-2021.pdf western-sky-motion-to-compel-arbitration.pdf

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7 minutes ago, jtho18NC said:

Thank you for this information! @key22and I plan to stay connected..."each one teach one!" 

I sure you two will prevail we will help along the way. Understand that Western Sky is defendant (that's you) and Brown is plaintiff that's JDB. You need to cut out tribal stuff and use the fed stuff and N.C. stuff there layout and how the argument is presented. 

crazy anyone would agree to 139% APR  2.5 K loan have to payback14K.  

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I started the application for the Arbitration. It's requesting a brief description of the dispute, here's what I am thinking of saying (your thoughts or critique):

"Plaintiff Midland Credit Management states that Defendant has incurred debt on the Walmart Account ending in 8797 and the Defendant defaulted by failing to make all payments owed on the account when due. Complaint states that the default occurred with the original creditor Capitol One Walmart Rewards who sold the debt to Midland Credit Management. The original creditor was Synchrony Bank when the account was allegedly defaulted prior to the transfer/sale between Capital One and Synchrony Bank."

Do you'll think I should add or take away anything?

Thank you for any advice!!!

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1 hour ago, BackFromTheDebt said:

Please remove your name from the post

 

17 hours ago, Bulldoger said:

I sure you two will prevail we will help along the way. Understand that Western Sky is defendant (that's you) and Brown is plaintiff that's JDB. You need to cut out tribal stuff and use the fed stuff and N.C. stuff there layout and how the argument is presented. 

crazy anyone would agree to 139% APR  2.5 K loan have to payback14K.  

Hey i was able to look at the information what do you think about this

MTC-MCM.doc

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22 hours ago, Bulldoger said:

There is specific law and case for North Carolina in above file I would some.   Also you need to be clear that case be moved to contractual arbitration not N.C. court arbitration.     So I suggest you write an order for the judge to sign that clearly moves case to correct arbitration. 

 

 

Order to Arbitration template.pdf

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6 hours ago, jtho18NC said:

I started the application for the Arbitration. It's requesting a brief description of the dispute, here's what I am thinking of saying (your thoughts or critique):

"Plaintiff Midland Credit Management states that Defendant has incurred debt on the Walmart Account ending in 8797 and the Defendant defaulted by failing to make all payments owed on the account when due. Complaint states that the default occurred with the original creditor Capitol One Walmart Rewards who sold the debt to Midland Credit Management. The original creditor was Synchrony Bank when the account was allegedly defaulted prior to the transfer/sale between Capital One and Synchrony Bank."

Do you'll think I should add or take away anything?

Thank you for any advice!!!

do you have a charge-off statement? It's the  statement where you balance goes to zero.  If not see if you can access your account on their MCM website. Go to account in question there is a tab for documents look for chargeoff pdf.  Is it on Walmarts Rewards Synchrony? If so download and print attach to MTC as exhibit showing account was charge off with Synchrony and Capitol-one was effectively just a debt buyer and is bound by the Synchrony Walmart agreement.  

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1 hour ago, jtho18NC said:

Apparently they didn't sell or transfer to JDB until 2/2020. 

It would have been more straight forward if your card was charged off before they transferred ownership.  But since

you didn't paid on this account when it was under Capital-one  (which does not have a arbitration clause) or used the Capital-one walmart card?  

You never were under a Capital-one credit card agreement.  

 

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On 6/8/2021 at 5:07 PM, Bulldoger said:

@jon_117 @fisthardcheese

  A good defense is to try to move case to contractual arbitration. That is done by filing a Motion to Compel Arbitration (MTC) base on the Synchrony  credit card agreement active when you defaulted...

 

Someone needs to put a leash on you.  Did you read the rules (OP's state and court) before advising this person?  I would like to get this verified with @fisthardcheese but one of the few things I know about arbitration is that in most jurisdictions once you have sent discovery it renders arbitration null and void. 

If you did indeed research this and it is proper for this OP then I apologize but given your recent antics in Texas threads and as many times as I have "overheard" on this board that one cannot file for arbitration after having started litigating a case I seriously doubt this is sound advice.

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On 6/11/2021 at 4:49 PM, Bulldoger said:

see above post

@Bulldoger  thanks i  was just wanting to make sure i had this correct so i should follow the  MTC like Western Sky and do the ORDER TO COMPEL ARBITRATION AND STAY PROCEEDINGS..... or all i need to file in is the the order ...i am thinking you mean both of these things need to be done....

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16 minutes ago, key22 said:

@Bulldoger  thanks i  was just wanting to make sure i had this correct so i should follow the  MTC like Western Sky and do the ORDER TO COMPEL ARBITRATION AND STAY PROCEEDINGS..... or all i need to file in is the the order ...i am thinking you mean both of these things need to be done....

hey to add to this i was reading the other informtion you sent and this got me to thinking

 

Very Important Note:  It is imperative that when you file an answer, you mention arbitration as a defense.  In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration.  In your answer, after you deny all allegations in the complaint, you should create a new section with the following title:  Affirmative Defense”.  Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. ........so when i filed my answer i do a affirmative defense but but it did not have anything in there about  Arb.  does this mean i cant do it now

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