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Midland Lawsuit in JP Court in Texas


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Hello! 

I received a citation today from JP court in Texas. I am being sued by Midland. The issue I'm having is they have 4 store card accounts all from OC Comenity Bank and they are lumping all 4 accounts into one lawsuit which brings to total to about 11k. Is is worth compelling arbitration on such a high amount with Midland or should I attempt to defeat it in court? 

Since it's in JP court I only have 14 days to answer so I have limited time. Thank you all for any advice you may give! 

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What I received in my Citation packet is 4 different "bill of sale"  and looks like 4 different "affidavit of sale by original creditor" but all dated the same day. So basically...I'm not really sure if they are under the same bill of sale. My guess would be yes?

Each account has it's own credit card agreement as they were each from different store cards. 

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Midland will have to prove up all four alleged debts, individually. Do you have the original card agreements for all four accounts? If they're all from Comenity, they're likely going to be materially the same, but it's good to have them so you can review the arbitration agreements. 

No matter which way you go, you'll want discovery (production of documents). In JP court, you have to get permission from the judge; just like in arbitration, where scope of discovery is at mediator's discrepancy. In my opinion, its easier to use the court system, where you can ask for things like the all-important forward flow agreement. I think JP court requires all such requests to be in writing, not ore tenus. 

Finally, how many affidavits are there? Just one? Perhaps four? That's how many witnesses Midland will have provide. Spoiler - read TRCP Part V, Rule 500.10 - Appearances at Court Proceedings. 

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You can ask the JUdge to have midland chose one debt and refiled suits for the other three.  

Having four cases in one is make the case confusing more difficult. Plus it steals money from taxpayers and the courts by MCM not paying proper fees.  

4 agreements 4 bill of sales 4 credit lines obviously this should be 4 court case not one. 

worth a try?

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6 hours ago, fiveoclocksomewhere said:

Midland will have to prove up all four alleged debts, individually. Do you have the original card agreements for all four accounts? If they're all from Comenity, they're likely going to be materially the same, but it's good to have them so you can review the arbitration agreements. 

No matter which way you go, you'll want discovery (production of documents). In JP court, you have to get permission from the judge; just like in arbitration, where scope of discovery is at mediator's discrepancy. In my opinion, its easier to use the court system, where you can ask for things like the all-important forward flow agreement. I think JP court requires all such requests to be in writing, not ore tenus. 

Finally, how many affidavits are there? Just one? Perhaps four? That's how many witnesses Midland will have provide. Spoiler - read TRCP Part V, Rule 500.10 - Appearances at Court Proceedings. 

I have 4 affidavits from Midland-2 are from the same person so 3 different employee affidavits from Midland. 

Then I have 4 affidavit of sale by original creditor but they are all signed by the same person. 

I do have all four Comenity agreements.  Below is what the agreements say about arbitration. 

Thank you for the Spoiler! I'm definitely looking into that! 

 
 
 

A. Jury Trial Waiver To the extent permitted by law, you and we waive any right to trial by jury in the event of a lawsuit arising out of or related to this Agreement. This jury trial waiver shall not affect the Arbitration Provision below (including the jury trial waiver contained therein). You and we each represent that this waiver is given knowingly, willingly and voluntarily.

B. Notice and Cure

Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to this Agreement (as further defined below, "Claim"), the party asserting the Claim ("Claimant") shall give the other party ("Defendant") written notice of the Claim ("Claim Notice") and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent to the address we have in our records (or
any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to the address for Arbitration Claims on the Summary (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Account number and explain the nature of the Claim and relief demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the Defendant reasonably requests.

12/3/2020 Disclosures

C. Arbitration Review this provision carefully. If you do not reject it in accordance with Paragraph C.1, Right to Reject, Provision below, it will be part of this Agreement and will have a substantial impact on the way you or we will

resolve any Claim you or we have against each other now or in the future.

1. Right to Reject

If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives your name and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at the address for Arbitration Rejection on the Summary. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within 30 calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit.

2. Parties

Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean
a. the issuer of your Card named on the Summary and its successors and/or assigns, as well as any parent, subsidiary or affiliate of theirs and their employees, officers and directors (the "Bank Parties"); and

b. any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

3. Covered Claims

"Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program and/or any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based on contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or
any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7, Prohibitions Against Certain Proceedings (Class Action Waiver), Paragraph C.13, Severability, and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

4. Starting an Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a Arbitration lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court

or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

5. Administrator "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY

12/3/2020 Disclosures

10271, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver.

 

6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights

If you or we elect to arbitrate a Claim, you will not have the right to pursue that Claim in court or have a jury decide the Claim. Also, your ability to obtain information from us is more limited in arbitration than in a lawsuit. Other rights that you would have if you went to court may also not be available in arbitration.

7. Prohibition Against Certain Proceedings (Class Action Waiver)

If you or we elect to arbitrate a Claim:
a. neither you nor we may participate in a class action in court or in class-wide arbitration, either as a plaintiff, defendant or class member;
b. neither you nor we may act as a private attorney general in court or in arbitration;
c. Claims brought by or against you may not be joined or consolidated with Claims brought by or against any other person; and
d. the arbitrator shall have no power or authority to conduct a class-wide arbitration, private attorney general arbitration or multiple-party arbitration.

8. Location and Costs

Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.

9. Governing Law

This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

10. Discovery In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either

12/3/2020 Disclosures

party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

 
 
 
 
 
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6 hours ago, Bulldoger said:

You can ask the JUdge to have midland chose one debt and refiled suits for the other three.  

Having four cases in one is make the case confusing more difficult. Plus it steals money from taxpayers and the courts by MCM not paying proper fees.  

4 agreements 4 bill of sales 4 credit lines obviously this should be 4 court case not one. 

worth a try?

I definitely think it should be four different suits but doing it this way certainly saves them money and makes the arbitration much more difficult since the overall amount is high. They would only pay one arbitration fee which seems like they would actually follow me into arbitration for that amount.

Would I ask the judge for this in my answer or when I see him in court? Can you tell me how I would go about asking the judge? 

Thank you!

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I don't now how it would be done in Texas,  MCM has been joining cases in suits before usually just two.  First time I seen 4. 

I would file a motion to dismiss.  Select the fist debt that is list on complaint as the one that stays because of first  representation.  

Then make arguments as to why the other 3 should be dismissed without prejudice. 

1 . The claims are not related each has different bill of sales and are were bundled in different  pools when allegedly purchased.

2. MCM in not paying their fair share skimming of three filing fees and taking 4 times the the time of the court for pice of one. 

3. Discovery would be burdensome as all debts have same creditor,and debtor and can only be identified by account redacted account number.   Account numbers have been known to change if this happened how can we tell which new account number goes with which account. 

4.  This is obviously not the norm, does court wish to set precedent for debt buyer to purchase 10, 20 or 100 accounts from a single debtor and then file one massive suit. 

5. It is unfair to the defendant to have a single judgement over multiple account thus not allowing the defendant to satisfy judgement for each account in sequence rather than in hold. This impacts the defendant credit rating unfairly. 

and what ever else you can think of. 

File with answer 

   BTW if each account is governed by different contracts you can file different arbitration cases which each and across different arbitrations JAMS and AAA. 

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14 hours ago, Bulldoger said:

I don't now how it would be done in Texas,  MCM has been joining cases in suits before usually just two.  First time I seen 4. 

I would file a motion to dismiss.  Select the fist debt that is list on complaint as the one that stays because of first  representation.  

Then make arguments as to why the other 3 should be dismissed without prejudice. 

1 . The claims are not related each has different bill of sales and are were bundled in different  pools when allegedly purchased.

2. MCM in not paying their fair share skimming of three filing fees and taking 4 times the the time of the court for pice of one. 

3. Discovery would be burdensome as all debts have same creditor,and debtor and can only be identified by account redacted account number.   Account numbers have been known to change if this happened how can we tell which new account number goes with which account. 

4.  This is obviously not the norm, does court wish to set precedent for debt buyer to purchase 10, 20 or 100 accounts from a single debtor and then file one massive suit. 

5. It is unfair to the defendant to have a single judgement over multiple account thus not allowing the defendant to satisfy judgement for each account in sequence rather than in hold. This impacts the defendant credit rating unfairly. 

and what ever else you can think of. 

File with answer 

   BTW if each account is governed by different contracts you can file different arbitration cases which each and across different arbitrations JAMS and AAA. 

Thank you for your guidance here! I am kind of clueless when it comes to this. 
I’m not really sure if they are on different bill of sales because the bill of sale doesn’t say much. It has a bunch of redacted areas so I don’t know what I’m looking at honestly. 

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2 hours ago, Bulldoger said:

It would be a long shot anyway.  I would suggest filing a MTC and see if you can get it awarded then file 4 arbitration cases.  

Ok thank you! 
Just to clarify…even though they filed a single lawsuit, I could still file 4 separate arbitrations?  
Also, would it be better to file the two lowest accounts with AAA and then the two largest with JAMS? Or should I just file them all with JAMS? From what I’ve read here it seems most people recommend JAMS as it is more costly for the JDB 

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5 hours ago, LostinTX said:

Ok thank you! 
Just to clarify…even though they filed a single lawsuit, I could still file 4 separate arbitrations?  
Also, would it be better to file the two lowest accounts with AAA and then the two largest with JAMS? Or should I just file them all with JAMS? From what I’ve read here it seems most people recommend JAMS as it is more costly for the JDB 

Cross that bridge when you get to it. If I were to answer I would split evenly in each so If MCM tried to pull them in one suit it still wouldn't be cost effective. 

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11 hours ago, Bulldoger said:

Cross that bridge when you get to it. If I were to answer I would split evenly in each so If MCM tried to pull them in one suit it still wouldn't be cost effective. 

That’s an interesting strategy. 
 

I would have suggested 4 separate claims in JAMS, but 2 in JAMS and 2 in AAA does have the effect of making it more difficult for Midland to combine cases.  
 

Most JDBs aim for the low hanging fruit.  The entire point is to make yourself an expensive PITA so they won’t want to bother you. 

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9 hours ago, BackFromTheDebt said:

That’s an interesting strategy. 
 

I would have suggested 4 separate claims in JAMS, but 2 in JAMS and 2 in AAA does have the effect of making it more difficult for Midland to combine cases.  
 

Most JDBs aim for the low hanging fruit.  The entire point is to make yourself an expensive PITA so they won’t want to bother you. 

So if I can get the the MTC granted, and after I’ve filed for arbitration, does MCM either pay the fees or dismiss the case? I’m not sure what happens after the MTC gets granted. I need to be a an extra expensive PITA as I think how they are handling this is wrong and unfair. Combining multiple accounts into a single lawsuit makes it much more difficult to defend each case individually. 

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My situation was different from others’. 
 

in all of my situations I checked very closely to see if there were any FDCPA or other state or federal regulations broken in the debt collection process. This was about 15 years ago when such violations were sadly extremely common.  
 

Look closely at each individual case.  At any point did MCM violate any collection laws?   Or is there anything they did that could possibly be a violation?  If so, you file that case perhaps in JAMS as a claim against MCM for the violations.  They can file a counterclaim for the debt if they so desire.  The claims against MCM, even if weak (but don’t file a frivolous claim) give you tons of leverage. 
 

I am less clear about how to proceed with cases in which there are no violations.  Others are more knowledgeable. 

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1 hour ago, BackFromTheDebt said:

My situation was different from others’. 
 

in all of my situations I checked very closely to see if there were any FDCPA or other state or federal regulations broken in the debt collection process. This was about 15 years ago when such violations were sadly extremely common.  
 

Look closely at each individual case.  At any point did MCM violate any collection laws?   Or is there anything they did that could possibly be a violation?  If so, you file that case perhaps in JAMS as a claim against MCM for the violations.  They can file a counterclaim for the debt if they so desire.  The claims against MCM, even if weak (but don’t file a frivolous claim) give you tons of leverage. 
 

I am less clear about how to proceed with cases in which there are no violations.  Others are more knowledgeable. 

I guess technically I do have a violation. They sent me a letter via a FedEx package and inside the package was a letter to someone that wasn’t me. This was well over a year ago though but I still have it 

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1 hour ago, LostinTX said:

They sent me a letter via a FedEx package and inside the package was a letter to someone that wasn’t me. This was well over a year ago though but I still have it 

You do not have a violation.  The other consumer did.  The second problem is that FDCPA violations have a one year statute of limitations so if the letter was sent well over a year ago the time to file a claim or suit has passed.

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38 minutes ago, Clydesmom said:

You do not have a violation.  The other consumer did.  The second problem is that FDCPA violations have a one year statute of limitations so if the letter was sent well over a year ago the time to file a claim or suit has passed.

Ok so no violation that I'm aware of. Do I even attempt arbitration? 

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2 hours ago, LostinTX said:

 

 

Does anyone happen to know if I have to put in my answer an affirmative defense of arbitration in Texas? Some say yes, some say no, but I cannot find the law that says it either way. 

I don’t know Texas law at all. 
 

That being said:

 

If you’re not required to put it in, it doesn’t hurt if you do. 
 

If you ARE required to put it in, you’re possibly screwed if you don’t. 

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Do I have to file a motion to compel before my court date? I don’t even have that yet as I have until next Thursday to file my answer. Is it better to file my answer and my motion to compel together? Or could I bring the motion with me and ask the judge to grant the motion in my initial hearing? 

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5 minutes ago, LostinTX said:

Do I have to file a motion to compel before my court date?

Yes.  You have to file the motion with enough time prior to the date for the Plaintiff to respond.  The court will then set a hearing date on the motion.  Typically it is 2 weeks out from the date the other party has to respond.

6 minutes ago, LostinTX said:

Is it better to file my answer and my motion to compel together?

Yes, this is the best way to do this.  That way the Plaintiff gets both at the same time and the court can schedule the hearing on the motion prior to a trial date.

7 minutes ago, LostinTX said:

Or could I bring the motion with me and ask the judge to grant the motion in my initial hearing? 

That won't happen and most likely will get the motion denied.  You have to serve a copy of it on the Plaintiff so they have an opportunity to respond.  Look at it this way:  do you want the Plaintiff to show up with a motion for summary judgment against you that you have no opportunity to read or respond to?  No.  It goes both ways.

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