Being sued by MCM in Georgia

[Elmobius]

1. Who is the named plaintiff in the suit?   Midland Credit Management
2. What is the name of the law firm?   Edited for privacy
3. How much are you being sued for? $2k+
4. Who is the original creditor? Capital One Bank
5. How do you know you are being sued? Wife accepted documents from process server
6. How were you served? In person, by proxy.
7. 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? Received a Demand Letter from MCM firm about towards beginning of 2021.  I never replied or requested DV.
9. What state and county do you live sued? Georgia
10. When is the last time you paid on this account? July 1, 2016
11. When did you open the account?  Unsure. This account no longer shows up on any credit report. I have emails going back to 4/2011 (first email I have from them is about a security breach), but that is when I created the email account.
12. What is the SOL on the debt?  6 years
13. What is the status of your case? Case was filed in Magistrate Court, I was served, have yet to answer
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?  30 days
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. . They submitted a past due statement  from Capital One as well as a Bill of Sale from Capital One to MCM

 

I've read that Cap1 removed arbitration clause in 2010, but I think that I may have opened up this account long enough ago that it may be relevant here. Is there any method by which I can pull that info? Also, does the fact that this account disappeared entirely from my credit report help me at all?

**EDIT** Looking back, it appears I opened this account in 2007. Is there any place I can find an agreement from that long ago since it should have an arbitration and survivability clause?

[Clydesmom]

6 hours ago, Elmobius said:

I've read that Cap1 removed arbitration clause in 2010, but I think that I may have opened up this account long enough ago that it may be relevant here. Is there any method by which I can pull that info?

CFPB archives.   If the agreement has a survivability clause you can use the arbitration defense.  If it does not have that clause then you are out of luck.

6 hours ago, Elmobius said:

Also, does the fact that this account disappeared entirely from my credit report help me at all?

No.  This is done to eliminate FDCPA counter claims during the lawsuit.

6 hours ago, Elmobius said:

Case was filed in Magistrate Court

Magistrate Court does not allow discovery.  Ignore any and all responses that tell you to start discovery or to file your MTC in advance.  Magistrate Court is trial by ambush.  Most in GA have pre-printed answer forms.  You simply fill it out, check off "deny" and hand it to the clerk.  They will stamp it and give you a copy.  The court will notify you within 20-30 days of the trial date.  On the day of trial have 3 copies of your MTC with you and be prepared to argue why the clause and survivability should prevail.  Also be prepared to go directly to trial if the MTC is denied.  Unfortunately an interlocutory appeal of the denial is not possible since the trial is immediate.  The good news is if you do lose an appeal is a trial de novo (complete do over) at the state court level.

[Elmobius]

So I received a continuance in order to file my arbitration case (the JDB's lawyer tried every way to tell me I was being stupid and going to throw thousands out the window to go to arbitration). Because their lawyer agreed to arbitration in pre-trial (mandatory) meeting, judge would not hear the case on the original court date so I could not file a MTC. 

I called JDB for a mailing address, they referred me to their attorney. I called their attorney's office to request an address for the arbitration demand and they declined to give me one and said I should just follow the contract (which of course states it should go to Cap 1, which I know is invalid). I called JDB again and they gave me their Michigan office address so hopefully this is good enough for JAMS to start a case.

[Bulldoger]

That's seems to be the standard operating procedure for MCM,  agree which stops the MTC from being granted since they agreed and prolong case with continuances trying to get settlement or a default judgement if you don't show for court dates.  Recently like this month they agreed to arbitrate then filed a motion for summary judgement in a case.  Keep and eye on case check for crazy motions a continuance is not a stay of the case.  

Wasn't the attorney's address on the complaint? Google attorney name see if they are in house a.k.a. MCM employees then just put their address otherwise put Michigan info and let JAMS sort it out.   

But from behavior it looks like attorneys are outside of company and arbitration is not part of the contract with MCM.  

[Elmobius]

12 minutes ago, Bulldoger said:

But from behavior it looks like attorneys are outside of company and arbitration is not part of the contract with MCM.  

The lawyer's contact email is an AOL address so I assumed she was contracted since I live a few hours from the law firm's office.

[WhoCares1000]

59 minutes ago, Elmobius said:

The lawyer's contact email is an AOL address so I assumed she was contracted since I live a few hours from the law firm's office.

There has to be an attorney's address on the summons and complaint. You had to send them your answer to the initial case. You can send your arbitration stuff to the same address you sent your answer to the summons and complaint.

[Elmobius]

Right, but they explicitly stated that they were not the party to reach with regards to arbitration with Midland and to refer back to the original contract, hence why I just sent to the Midland address I was given. I have about a month until my next court date so that should hopefully be enough time to get the proper parties involved.

[Bulldoger]

Do you have it in writing that the plaintiff's attorney as written on summons said to send it to midland address? Unless they file a motion withdrawing from case they are the legal party you are to send papers too.   If they don't get it Certified they can always deny. 

[BackFromTheDebt]

30 minutes ago, Bulldoger said:

Do you have it in writing that the plaintiff's attorney as written on summons said to send it to midland address? Unless they file a motion withdrawing from case they are the legal party you are to send papers too.   If they don't get it Certified they can always deny. 

This is an excellent point.  
 

The person you spoke to may not have any idea what the arbitration procedure is.  
 

If you send it to the attorney, CMRRR, you have proof you sent it properly. 
 

If you send it to whatever place based on what an office worker told you verbally, with no proof this person actually said it, you could wind up sending it to the wrong place and lose your chance for arbitration as the worst case. 

[Elmobius]

4 hours ago, Bulldoger said:

Do you have it in writing that the plaintiff's attorney as written on summons said to send it to midland address? Unless they file a motion withdrawing from case they are the legal party you are to send papers too.   If they don't get it Certified they can always deny. 

No (I do have contemporaneous notes with the rep from the law firm that told me they would not provide me an address and we're not involved with any arbitration proceedings) , but I was working on the impression that since the court did not compel arbitration, they are not under any obligation to participate in arbitration proceedings and would not need to withdraw from the lawsuit filed.

[Bulldoger]

1 hour ago, Elmobius said:

I was working on the impression that since the court did not compel arbitration, they are not under any obligation to participate in arbitration proceedings and would not need to withdraw from the lawsuit filed.

The court did not compel arbitration because there was no reason too since both parties agreed to arbitrate. The next court date is for Judge to verify that arbitration is moving along if MCM has not paid their share of fees they need to explain to Judge why not.  If they have a reason Judge will give another continuance for them to jump on the bandwagon.  If on next court date they still haven't at that time Judge may order them to participate in arbitration or dismiss case with prejudice. 

[Elmobius]

In that case, should I send to the address on the original summons for the firm or to the address I found for the local attorney they hired that is on the continuance paperwork?

[Clydesmom]

6 hours ago, Elmobius said:

In that case, should I send to the address on the original summons for the firm or to the address I found for the local attorney they hired that is on the continuance paperwork?

You need to send it to Midland.  More than likely the law firm was contracted for the litigation not arbitration.  My educated guess is they reached out to their client when you demanded arb and Midland said they would.  That does not automatically mean that the law firm will be the ones representing Midland in arb.  Your case is against Midland not the law firm.  You have JAMS or AAA notify Midland that arbitration has been filed.  Then if Midland does not pay or respond they can explain it to the judge.  Your job is to ensure all the proper filings have been done with the arbitration service to show the court you are serious.

[Elmobius]

Update: I initiated an arbitration case through JAMS and they were sent an invoice for their share of filing fee late last week. I showed back up to the continued court date this morning and their lawyer was a no-show.

Case got dismissed, but the judge wouldn't dismiss with prejudice since the case wasn't actually heard. 

[WhoCares1000]

2 hours ago, Elmobius said:

Update: I initiated an arbitration case through JAMS and they were sent an invoice for their share of filing fee late last week. I showed back up to the continued court date this morning and their lawyer was a no-show.

Case got dismissed, but the judge wouldn't dismiss with prejudice since the case wasn't actually heard. 

Watch to see if the attorney tries to revive the case or if the decide to continue with Arbitration. Odds are, because this is MCM and not Capitol One directly, they will probably give up but Cap One can still sue you directly and they will go to arbitration. I would wait a couple of months, find out if the debt has been sold on or returned to Cap One, and then maybe offer a settlement.

[BV80]

34 minutes ago, WhoCares1000 said:

Watch to see if the attorney tries to revive the case or if the decide to continue with Arbitration. Odds are, because this is MCM and not Capitol One directly, they will probably give up but Cap One can still sue you directly and they will go to arbitration. I would wait a couple of months, find out if the debt has been sold on or returned to Cap One, and then maybe offer a settlement.

If the account was sold to Midland, how can Cap1 still sue?

[Bulldoger]

Cap1 can't sue unless the buy it back which they will not. But MCM can still follow through with arbitration.  

[Elmobius]

So Update: I received a call from a new firm that will be representing JDB in JAMS if we do not come to some arrangement within the next few days. He was able to provide all the documentation I was not able to get from them prior to now. I suppose at this point, its just a matter of seeing what their settlement offer is in exchange for not going through arbitration? I doubt it'll be too reasonable but if its sub 20%, I might just save myself the time/effort so long as it settles the account. Otherwise, on to JAMS and they can eat the extra costs.

[BackFromTheDebt]

1 hour ago, Elmobius said:

So Update: I received a call from a new firm that will be representing JDB in JAMS if we do not come to some arrangement within the next few days. He was able to provide all the documentation I was not able to get from them prior to now. I suppose at this point, its just a matter of seeing what their settlement offer is in exchange for not going through arbitration? I doubt it'll be too reasonable but if its sub 20%, I might just save myself the time/effort so long as it settles the account. Otherwise, on to JAMS and they can eat the extra costs.

A lot of this depends on whether you have any counter claims, such as FDCPA or state violations.  

[Elmobius]

Not as of yet. They've played this one pretty clean.

[Elmobius]

Update: JDB's lawyer called a couple weeks ago and asked if I'd be willing to settle, that they also had another account they were about to initiate a case on. We agreed after a short back and forth to a 40% settlement over 6 months for both accounts in exchange for a paid in full listing on the accounts (the other account did not have any arbitration agreement I could use).

Payments were to start on the 15th, but fast forward to last night, I get another call from lawyer that they mistakenly wrote off the 2nd account as uncollectible and needed an amendment to the settlement drafted to remove that account from the agreement. They agreed to delete both accounts rather than a "paid in full" in exchange for not delaying the process to re-write a new settlement agreement. The written off account also would not be assigned to any other entity so it looks like I'm walking away with paying ~15% total of the value of those 2 accounts.

At this point, I guess I just need to keep an eye out for that 2nd account and make sure it doesn't pop up again under another JDB.