Author Topic: Getting sued by Midland in Michigan..  (Read 1908 times)

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Butchnip

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Getting sued by Midland in Michigan..
« on: March 14, 2017 05:02:53 PM »
Hi folks. I think I may have finally landed in the right place! Trying to find some good info on beating a debt collection case brought on by Midland Funding, LLC. Any help greatly appreciated!

As soon as I got the complaint (on Christmas Eve!), I panicked and bought an ebook from Amazon - "Stick It To Sue-Happy Debt Collectors" by Alan Harkleroad. I've read a bunch of that, drafted my answer letter and gave it to the court clerk (and sent to lawyer). Now I have a court date for a pre-trial conference, and it's next week.

My strategy is this: I want to either get the lawyer to drop the case due to my making them prove they own the debt (statements, invoices, etc), or at least see if I can prolong the case for like 3 months. The reason for prolonging the case is because I plan to file for bankruptcy in May, and in my understanding, that would halt all legal proceedings regarding debt collection against me. I am currently laid off and can't afford to file bankruptcy with my unemployment funds, but I'll be back to work by May, and by the end of May I should have the dough to file.

What's been confusing to me lately is, should I have filed a Motion to Dismiss already? And what about a "graduated denial"? These are what that book I bought skips to after sending the answer letter. It doesn't explain it super-well. Should I have done this stuff already? Should it be done before the pre-trial?

I ripped the following little questionaire from another post, so as to give some pertinent info on my case. Also included as attachments are the complaint letter and my answer letter.

1. Who is the named plaintiff in the suit?    Midland Funding, LLC

2. What is the name of the law firm representing the Plaintiff?    Mary Jane M Elliot P.C.

3. How much are you being sued for? Round off the amount.    $1055.00

4. Who is the original creditor?     Synchrony Bank

5. How do you know you are being sued? Were you properly served?   I was served properly

6. How were you served?   In person

7. What state  do you live in?   Michigan

8. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)   About two years ago.

9. How long do you have to respond to the suit? (This should be in your paperwork).    21 days. I files an answer letter already.

10. What documents, if any, did they send with the summons? Some affidavit by a Midland Legal Specialist stating that they own the outstanding debt, etc.

11. Did they also send discovery?   No


Any other info needed, please let me know. I'm nervous that I waited too long to file a Motion to Dismiss and/or the graduated denial.

Thanks in advance!

N.

Bruno the JDB Killer

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Re: Getting sued by Midland in Michigan..
« Reply #1 on: March 14, 2017 05:47:49 PM »
should I have filed a Motion to Dismiss already?


Based on what?


These are what that book I bought skips to after sending the answer letter. It doesn't explain it super-well



I'm shocked. You bought the wrong book. Hackledummy doesn't know whether to you know what or wind his watch. I would direct you to mine, but I can't advertise here.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #2 on: March 14, 2017 06:01:58 PM »
should I have filed a Motion to Dismiss already?


Based on what?

Based on my affirmative defenses in my answer letter?



These are what that book I bought skips to after sending the answer letter. It doesn't explain it super-well

I'm shocked. You bought the wrong book. Hackledummy doesn't know whether to you know what or wind his watch. I would direct you to mine, but I can't advertise here.

Well thanks, regardless.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Getting sued by Midland in Michigan..
« Reply #3 on: March 14, 2017 06:11:19 PM »
Read up here about arbitration.

The Synchony Bank agreement has JAMS arbitration in it, and it won't cost you anything while Midland will be sent a bill for about $5k.  For this reason, Midland refuses to arbitrate.  I would file a Motion to Compel arbitration right away.  There are many examples on this board.

Once the judge grants the MTC and orders arbitration, Midland is stuck between paying $5k to JAMS or being in violation of the court's order.  They usually worm out of this by dismissing the suit instead 99% of the time.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #4 on: March 14, 2017 06:59:08 PM »
Read up here about arbitration.

The Synchony Bank agreement has JAMS arbitration in it, and it won't cost you anything while Midland will be sent a bill for about $5k.  For this reason, Midland refuses to arbitrate.  I would file a Motion to Compel arbitration right away.  There are many examples on this board.

Once the judge grants the MTC and orders arbitration, Midland is stuck between paying $5k to JAMS or being in violation of the court's order.  They usually worm out of this by dismissing the suit instead 99% of the time.

Thank you.. I'm reading up about arbitration now, though it is pretty confusing. Should I start arbitration with JAMS first? Or file the Motion first? And it appears that judges will sometimes smack them down, eh? Definitely looking for examples of MTCAs.

Bruno the JDB Killer

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Re: Getting sued by Midland in Michigan..
« Reply #5 on: March 14, 2017 07:07:20 PM »
Based on my affirmative defenses in my answer letter?


Well thanks, regardless.


Based on my affirmative defenses in my answer letter?




Nope, read your court rules. Hint: read  §17.1  MCR 2.116
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #6 on: March 14, 2017 07:15:48 PM »
Thanks Bruno. Can you pm me any of your book details?

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #7 on: March 14, 2017 08:42:09 PM »
So, since my pre-trial conference is one week away, is there anything I need to bring up and address specifically? I will be attempting to get the Motion to Compel Arbitration rolling now. I have read that when I get to the conference, the attorney will be calling people out of court and asking about settling, etc. My understanding is that I should not agree to settle.  Midland hasn't proven to me that they own my debt. Do I just tell that to the judge at the time and ask that they be required to do so? Does that start the whole "discovery period" where I can request debt validation from them? I'm really curious as to how a pre-trial hearing works and what I oughta say.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Getting sued by Midland in Michigan..
« Reply #8 on: March 15, 2017 10:42:13 AM »
I would want to file a motion to compel arbitration before the pre-trial hearing.  I would bring 3 copies of the motion to the hearing, since it is close enough that the attorney will say he hasn't been served a copy yet and I can hand it to him (and the judge if necessary).  I would still make sure to mail a copy to the attorney as soon as I file it anyway and send it CMRRR.

Don't just copy/paste this. Make sure you change the language to fit what your card agreement actually says and to add any state MI case law on arbitration if you have any:



MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY 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 ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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 ________________, 2014


(Your name typed), Defendant, pro se
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Getting sued by Midland in Michigan..
« Reply #9 on: March 15, 2017 12:55:22 PM »
Here's one from this century. It has everything you need. Just change the arbitration section  to match your contract.






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 ___________, 2017, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2017,

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.

Also, see these Supreme Court rulings:  KPMG v. Cocchi, LLC, U.S., 132 S. Ct. 23, 25

(2011) 

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669, 181 L. Ed. 2d 586 (2012).

Am. Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 186 L. Ed. 2d 417  (2013)


"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 ________________, 2017


(Your name typed), Defendant, pro se




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

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2017



  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 _________________, 2017


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.

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #10 on: March 15, 2017 06:00:09 PM »
Thanks to both of you!

So check this out. I spoke with a lawyer friend about my situation.. Keep in mind that my overall goal is to stall out these proceedings until I get back to work. In May I will be filing for bankruptcy, at which point I would lump Midland into the debt I want discharged. Until that time I am currently laid off, collecting unemployment.

 So my lawyer friend says that at the pre-trial, when the attorney calls me out to try and settle, I should state that:

1. I'm laid off, with scant funds from unemployment
2. I'm filing for bankruptcy in May
3. I won't settle, and will make the attorney prove beyond the shadow of a doubt that Midland owns my debt, is due the full amount etc.

My friend reckons that with that information, a lawyer ought to be able to see that they may have to do a bunch of work, only to be shut down in a couple months when I file bankruptcy. He also said that when I get in front of the judge, to just state that I would like to begin the discovery process, in order to get proof from the attorney. At that point, the judge will schedule out my case dates, with discovery dates etc.

What do you guys think of this tactic, given my situation?

Bruno the JDB Killer

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Re: Getting sued by Midland in Michigan..
« Reply #11 on: March 16, 2017 03:23:21 PM »
You need a new lawyer friend. Your goal is to get this sent to arbitration, not argue the case in front of a judge. You start fooling around with litigation and you'll waive your right to arbitration. Midland will not pay 30-40K for an arbitration to chase 1K.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Getting sued by Midland in Michigan..
« Reply #12 on: March 16, 2017 10:02:53 PM »
You need a new lawyer friend. Your goal is to get this sent to arbitration, not argue the case in front of a judge. You start fooling around with litigation and you'll waive your right to arbitration. Midland will not pay 30-40K for an arbitration to chase 1K.

+1

Yet another lawyer showing they are clueless about consumer arbitration.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

nobk4me

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Re: Getting sued by Midland in Michigan..
« Reply #13 on: March 17, 2017 08:51:09 PM »
It's best to get out of the court with arbitration.  Midland will never pay to go all the way in JAMS.  It will certainly buy the time you need before filing BK.
Molon labe

Judgment Proof!

Butchnip

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Re: Getting sued by Midland in Michigan..
« Reply #14 on: March 19, 2017 06:05:54 PM »
Thanks for all the comments. I see that arbitration is best! My problem now is that I am having trouble finding any of my card contract stuff.. Needed for filing the motion to compel arbitration, right?  It was an Amazon credit line.. Never received a card.
« Last Edit: March 19, 2017 06:32:36 PM by Butchnip »

 

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