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Midland Credit Management lawsuit GA & Tami (in WA)


TJ178
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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.)

Gordon, Aylworth, and Tami

3. How much are you being sued for?

Originally it was $6980 but after I sent my Answer, they're now seeking $1272 (they dropped one creditor so i guess they didn't have evidence for that one)

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?)

I was served with a complaint back in June. I sent an answer denying all allegations and they dropped one of the creditors, but now have sent me a packet of stuff that includes a motion for summary judgement, which is why I'm posting here for next steps. 

6. How were you served? (Mail, In person, Notice on door)

Mail and in person

7. Was the service legal as required by your state?

As far as I know

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?

They sent a number of requests for payment

9. What state and county do you live in?

WA and Pierce county

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? 

Not sure but i think it's well within

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).

I've looked the case up online and the status field is blank. In the packet I just received, i have their requests for a motion for summary judgement. Online, it looks like it was approved as it says scheduled for January 13. However, I don't have anything in writing for that as nothing they sent me was signed by a judge. 

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? 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, I only asked for it in my answer and they did send me photocopies of my statements. 

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?

My main question right now is how to respond to the summary judgment or if i can. I was given 21 days to respond to the original summons, and I did so. I have no idea about this one. 

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

Originally, all they sent was the complaint. As of November, they've now sent affidavits and statements from the OC. 

18.  How did you find out about this site?

I was Googling for information on responding to a summons for debt collection. 

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GA&T are pretty tenatious but your best chance is a motion to compel "Private" arbitration.  Midland likes to drag you ito a settlement at full amount with monthly installments. Try to avoid. MTC can be a challenge in Oregon and Washington as both states have manditory Court Appointed Arbitration. First and most important you have to stall/defeat by opposition their MSJ which requires an reply based on no opportunity for discovery or a stay pending your Motion to Compel"Private" Arbitration. 

Sample Templates:

Motion to Dismiss Summary Judgment CIC

=============

IN THE SUPERIOR COURT OF THE STATE OF <YOUR STATE>

IN AND FOR THE COUNTY OF <YOUR COUNTY>

Case No._____________________

<Collection Agency>

Plaintiff

Vs.

Joseph Consumer

Defendant(s)

MOTION FOR DISMISSAL OF SUMMARY JUDGMENT  (or Motion in opposition to MSJ pending Motion to Compel Compel Private Contratual Arbitration Per Card Agreement)

Comes now the Defendant, XXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, <Your Plantiff>, Inc., as follows:

1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied.

2. Defendant received the Plaintiff's Summons on <Date upon which You received Summons>. Defendant answered the request on <Date which you answered Summons>.

3. Trial was set for <Date on which trail was set for>.

4. Motion for discovery was filed on <date the motion was filed>. (Modify this)  Documents requested from plaintiff included any documentation of relationship between plaintiff and RSC, the alleged original plaintiff, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented.

[The appeals court overturned the default summary in Spears vs. Brennan

Court of Appeals, 745 N.E.2d 862; 2001 Ind. App. LEXIS 509; because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g

(B) Validation of Debts.]

5. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. Even if such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

6. Defendant alleges that this action is time-barred under § 735 ILCS 5/13-204- 735 ILCS 5/13-206 under Illinois’s civil code (statute of limitations for open accounts is 5 years). Per the Plaintiff’s own summons, date of last payment was 10/07/2000. Date of summons was 10/31/2005.

7. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

8. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

WHEREFORE, Defendant, XXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed herein by National Check Bureau and prays for Dismissal of the complaint by the Plaintiff for damages of $983.73 and any further relief this court deems just and proper.

Defendant's motion for dismissal of summary judgment submitted this ___________ day of Dec 2021

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Powerful Memorandum to the Judge:

MSJ Motions Pending Arbitration ruling.

Defendants Name & Case Number
To:  Judges Name  Court Name etc

Memorandum

Memorandum regarding Planitiffs Motion for Summary Judgement Pending Motion for Compelling Private contractual arbitration as per Card Agreement.

For reasons stated herin, the Court should strike Plaintiffs Motion for Summary Judgement rendering it null and void and have no effect on defendants pending application to confirm private arbitration per incorporated agreement attached to motion to compel arbitration and deny plaintiffs motion for summary judgement as moot. A genuine despute as to material facts exist regarding a number of Issues unresolved. Defendant has not been allowed discovery.  

NC Civil Procedure § 1-569.7 (f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

An application has been made to stay action in ths Court. Action is pending continuance. Petition and Motion for Arbitration is in continuance for determination on <enter date> Answer to Plaintiffs summons and complaint has been filed no further action initiated. The petition for arbitration includes a copy of the card agreement incorporated in the submitted motion documents directing disputes be settled by private arbitration.  

Answers and summary judgment motions are matters that relate to civil actions, not motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file Case 3:04-cv-02370-L Document 33 Filed 04/30/07 Page 4 of 14 PageID 228 therefore, has no applicability to a proceeding relating to arbitration.

Plaintiffs motion should not apply to a proceeding relating to arbitration for two reasons:
(1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action under the FAA; and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1

Rule 41 pertains to voluntary dismissal of actions and provides as follows:
an action may be dismissed by the plaintiff without order of court (i) by filing a
notice of dismissal at any time before service by the adverse party of an answer or
of a motion for summary judgment, whichever first occurs, or (ii) by filing a
stipulation of dismissal signed by all parties who have appeared in the action.


FAA’s goal of promoting the expeditious resolution of disputes, the enforcement of private arbitration agreements, rather than speed, is the dominant goal of the FAA that must be given priority by courts. See Guidotti, 716 F.3d at 773 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 219-21 (1983)). Normally, therefore, issues at the gateway to arbitration, such as the existence of an arbitration agreement, must be addressed according to judicial rather than arbitral practice.

When it is apparent on the face of the complaint and the defendants motion documents incorporated therein that the parties agreed to arbitrate, the court should apply the FRCP 12(b)(6) standard for a motion to dismiss for failure to state a claim, without any opportunity for discovery. 
~~~~~~~~~~~~~~~~~~~~~~~~~````

Don't forget to file your MTC along with your oppositio. See "FistHardCheese's" instructions on this CIC web site. 

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First you have to file a motion in opposition to plaintiffs motion for MSJ. 

You will have to include a summary of the legal basis for your opposition, state the reason you are opposing the motion and include what you would like the judge to order. 

I'm not sure there is a standard form for this. The basic structure and language is on the template I previously cited. You can create this yourself from MS word using the same information and format as the plaintiff did on the MSJ. The opposition language is on the templates. You will have to change a few things and use Washington Caselaw.

 

Second: You will have to search for "FistHardCheese" on the CIC site and use his motion template for you Motion to Compel Private Arbitration per credit card agreement. It's excellent. The forum will help you find some Washington Caselaw. 

 

This all has to be filed with the Court and copy forwarded to Midlands attorney. I would send the attorney CMRRR.

 

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Ok. I'm still a little lost. Is this the right form for an opposition motion? https://www.piercecountywa.gov/DocumentCenter/View/25295/NOTE-FOR-MOTION-HEARING-FORM?bidId=

 

Also, what would be my legal basis for opposing their motion?  i'm assuming what i'd like the judge to order is a dismissal of the summary judgment? 

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