Author Topic: HELP in need of review.... being sued by midland in Ohio  (Read 1621 times)

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Nalderga

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HELP in need of review.... being sued by midland in Ohio
« on: March 15, 2016 10:09:52 PM »
I have no idea if these are good responses. I have 5 days left to reply. Actual answers attached.
1. Full name, address SS#,DOB, Phone#
2. Any persons helping
3. Other legal Names
4. Employer, job title, length of employment
5. Admit that you applied for credit with Citibank
6. Denial for 5
7.Admit account was opened in my name on xxxxxxxx
8.Denial 7
9.Admit used account to make purchases
10.Denial 9
11.Admit received periodic statements
12. Denial 11
13.Admit you never contacted citi to dispute transactions on your statement
14. Denial 13'
15. Provide all copies of correspondence sent to citi pertaining to disputes
16. Provide all copies of correspondence sent from citi for disputes'
17.admitt responsible to pay total balance on the account
18. denial 17
19. Admit all payments on account weren't made in a timely manner
20. denial 19
21.admit you failed to pay total amount due on account
22.denial 21
23. admit plaintiff is now owner of account having all rights to account
24.denial 23
25.admit balance is now due and owing on the account is amount prayed for by plaintiff
26.denial 25
27.State with particularity the basis of any denials stated in your answer to plaintiffs complaint
28.state with particularity any basis of affirmative defenses
29. asking for bank, checking, savings accounts
30.produce any and all documents I plan to introduce at any trail or hearing in this matter
31.identify all individuals with direct knowledge of this matter
32.produce any and all documents in my possession relative to this account
33. admit I received the account statement, copy of which is attached hereto as Exhibit A
34. Denial to 33


Thanks for any help!!!!


howucantoo

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wombat_ma

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #2 on: March 15, 2016 10:59:06 PM »
Read this post.

http://www.debtorboards.com/index.php/topic,29064.msg275291/topicseen.html#new

Provided there is a consumer arb clause in the OP's contract.

The OP, as usual, have not provided any info as to whether it is an OC or a JDB suing, whether it is a consumer or a commercial debt and for what amount, what state (s)he is a resident of, what is the date the alleged account was opened and what is the date of alleged default, whether the alleged contract includes an arb provision? If it is an old account, was there a survivability clause in the original contract?

The OP apparently wants to know how to answer the Plaintiff's interrogatory due in 5 days. (S)he does not want to know whether (1) she is required to answer, (2) is it a good idea to answer, (3) is there a better strategy than to answer, (4) what rights (s)he might be giving up by answering..
I am not an attorney. My posts here are not legal advice.

howucantoo

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #3 on: March 15, 2016 11:14:46 PM »
Provided there is a consumer arb clause in the OP's contract.

The OP, as usual, have not provided any info as to whether it is an OC or a JDB suing, whether it is a consumer or a commercial debt and for what amount, what state (s)he is a resident of, what is the date the alleged account was opened and what is the date of alleged default, whether the alleged contract includes an arb provision? If it is an old account, was there a survivability clause in the original contract?

The OP apparently wants to know how to answer the Plaintiff's interrogatory due in 5 days. (S)he does not want to know whether (1) she is required to answer, (2) is it a good idea to answer, (3) is there a better strategy than to answer, (4) what rights (s)he might be giving up by answering..

Thank you for clarifying this . Obviously you read minds and interpret better than I do.

 I referred her to a post where she can figure out what to do for HERSELF.

And Where did I post that she must compel arbitration that you reply this? " Provided there is a consumer arb clause in the OP's contract". :vbconfused:
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.
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Bruno the JDB Killer

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #4 on: March 16, 2016 02:29:55 PM »
The OP, as usual, have not provided any info as to whether it is an OC or a JDB suing,


Name of the thread is "Being sued by Midland...."


 what state (s)he is a resident of


Name of the thread is "Being sued by Midland....in Ohio"

Rog number five indicates OC is Citibank. The rest we need, to determine whether this may be small claims. Citi has that nasty little "no arb" clause for small claims.


 
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

wombat_ma

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #5 on: March 16, 2016 02:36:16 PM »
Sorry HU and Bruno..

I was not paying attention.

BTW, HU - I used your template last month with success - OC forced into arb, stay granted!

Thanks for posting that template!
I am not an attorney. My posts here are not legal advice.

Bruno the JDB Killer

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #6 on: March 16, 2016 02:42:38 PM »
Some day she might realize what year it is and change her template. LOL Here's an updated version with the Order.


MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION



NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2016, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2016, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2016


(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2016



  ORDER


The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


      GRANTED      /                 DENIED



Dated at City, Jurisdiction,  this _____ day of _________________, 2016


THE COURT

By: ________________________

       Judge of the Superior Court





DOCKET NO:   XXXXXXXXXXX         :   SUPERIOR COURT
Plaintiff name                            :   J. D. OF XXX
VS.                     :   AT    XXXX
Defendant name                                                  :   DATE



      AFFIDAVIT

STATE OF XXXX


                              Name of your town

COUNTY OF  XXXXXXX



   The undersigned, being duly sworn, does depose and say:


1.   I am over the age of eighteen and believe in the obligation of an oath.


2.   I am self represented as the Defendant  in connection with the above captioned matter.


3.   By pleadings XXXXX, Defendant   XXXXX served XXXXX  in the above captioned matter. (answer, whatever)


4.   The Defendant hereby states the following facts:


5.   Upon information and belief, the attached credit card agreement is the governing document in the instant action.









Dated at XXXXXX, on:  DATE





________________________________


Subscribed and sworn to, before me, on:






_______________________________


Notary Public
















      









I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Nalderga

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #7 on: May 12, 2016 07:28:46 PM »
I just received a notice of dismissal without prejudice rule 41 a of the Ohio RCP .....Not sure if I should file a counter claim stating that they had false and misleading statements about me without proof and were forced to dismiss? or Maybe Motion for the dismissal to be changed to with prejudice?
Any thoughts or opinions is greatly appreciated!

Thanks for all the good info guys!

Clydesmom66

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #8 on: May 12, 2016 10:23:00 PM »
Not sure if I should file a counter claim stating that they had false and misleading statements about me without proof and were forced to dismiss?

There is no "counter" claim if the case has been dismissed.  You would have to file your own suit now.

Maybe Motion for the dismissal to be changed to with prejudice?

Too late for that too.  As long as the Plaintiff withdrew their case without prejudice it won't be changed. 
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Nalderga

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #9 on: May 13, 2016 03:54:20 PM »
Alright
Thanks!

Nalderga

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #10 on: March 14, 2017 05:18:41 PM »
Case was dismissed when they tried to "call it in" HA!

Bruno the JDB Killer

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Re: HELP in need of review.... being sued by midland in Ohio
« Reply #11 on: March 14, 2017 05:41:59 PM »
W/O means they can file the case again. Watch the docket. Your false and misleading claims are misplaced, the time to pursue that was when they sued you. These supposed violations go back over a year from the looks of things, which means the statute of limitations (for the FDCPA anyway) has expired.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.