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CAUSE NO.
MIDLAND CREDIT MANAGEMENT, INC. IN THE DISTRICT COURT
Plaintiff,
vs.
SARAH HODGES
Defendant MONTGOMERY COUNTY, TEXAS
PL, TIFF'S ORIGINAL PETITION
TO THE HONORABLE COURT:
MIDLAND CREDIT MANAGEMENT, INC., the Plaintiff, complains of SARAH HODGES, the
Defendant, and for cause of action shows:
Discovery Level
Plaintiff intends to conduct discovery under Level | of Texas Rules of Civil Procedure.
Parties and Service of Citation
i The Plaintiff is a foreign limited liability company duly authorized to conduct business in the State
of Texas.
3 The Defendant resides within the venue of the above referenced court and may be served at the
following address, or wherever the Defendant may be found:
SARAH HODGES
2339 HICKORY HOLLOW LN
SPRING, TX 77386-2107
Venue and Jurisdiction; Relief Sought
4. Venue is proper in this county because Defendant, a natural person, resides in this county. The
amount in controversy is within the jurisdictional limit of this court. The Plaintiff seeks only monetary relief
of $250,000.00 or less, including damages of any kind, penalties, cost, expenses if any. Plaintiff does not
seek pre-judgment interest or attorney's fees.
Plaintiffs Efforts To Resolve
The Underlying Obligation
5 Plaintiff, MIDLAND CREDIT MANAGEMENT, INC., owns portfolios of consumer receivables,
which it attempts to collect. When working with individual consumers, Plaintiff, MIDLAND CREDIT
MANAGEMENT, INC.., and its affiliates (collectively, Plaintiff’) generally attempt to contact consumers
like Defendant through several means, all in an effort to establish contact and to resolve the underlying
obligation. In doing so, Plaintiff attempts to assess each consumer’s willingness to pay, through phone calls,
letters or other means. Plaintiff attempts to exclude consumers from its collection efforts, where Plaintiff
TX_0120G File No.: 23-233737 SCP
believes those consumers are facing extenuating circumstances or hardships that would prevent them from
making any payments.
6. When Plaintiff contacts consumers, it strives to treat consumers with respect, compassion and
integrity. Plaintiff works with consumers in an effort to find mutually-beneficial solutions, often offering
discounts, hardship plans, and payment options. Plaintiffs efforts are aimed at working with consumers to
repay their obligations and to attain financial recovery. Plaintiff strives to engage in dialogue that is
honorable and constructive, and to play a positive role in consumers’ lives.
7
Despite Plaintiffs efforts to reach consumers and resolve the consumer’s obligations, only a
percentage of consumers choose to engage with Plaintiff. Those who do are often offered discounts or
payment plans that are intended to suit their needs. Plaintiff would prefer to work with consumers to
establish voluntary payment arrangements resulting in the resolution of any underlying obligations.
However, the majority of Plaintiff's consumers ignore calls or letters, and some simply refuse to repay their
obligations despite an apparent ability to do so. When this happens, Plaintiff must decide then whether to
pursue collection through legal channels, including litigation like the present action against Defendant.
Although the account is now in litigation, Plaintiff remains willing to explore a mutually-beneficial solution
through voluntary payment arrangements, if possible.
Count I
8 Defendant opened the account with MARLETTE FUNDING GRANTOR TRUST 2021-1 on or
about February 12, 2020. Plaintiff purchased Defendant's debt on or about March 17, 2023. Plaintiff has
been assigned the debt, and Plaintiff is now owed money from Defendant. MIDLAND CREDIT
MANAGEMENT, INC. is the current owner of the debt, and any prior holders of the debt are listed in the
attached Affidavit Relating to Damages and Business Records and are incorporated by reference.
Relevant information related to the account is as follows:
ORIGINAL CREDITOR: MARLETTE FUNDING GRANTOR TRUST
2021-1
ORIGINAL ACCOUNT NO.: XXXX-1415
DATE OF CHARGE-OFF: February 28, 2023
CHARGE-OFF BALANCE: $22,502.77
Breach of Contract
Breach of Contract
9. Defendant breached his/her obligation to pay Plaintiff by failing and/or refusing to pay the remainder
of the obligation on this account. The breach was material because Defendant did not substantially perform a
material obligation, payment - as required under the contract. Plaintiffs injury, which is the extent of the
amount owed on the account, was a natural and probable consequence of Defendants breach.
10. Demand for payment has been made by Plaintiff, and as of January 03, 2024, Defendant has refused
TX_0120G File No.: 23-233737 SCP
and failed to remit the remaining principal amount of $22,502.77. No interest (0%) is accruing on the
account.
Damages
ll. Plaintiff seeks liquidated damages in the amount of $22,502.77 along with post judgment interest at
the statutory rate provided by applicable law.
Conditions Precedent
12. All conditions precedent have been performed, have occurred, or should be excused.
Prayer
For these reasons, Plaintiff asks that Defendant be cited to appear and answer, and that Plaintiff have
judgment against Defendant for the following:
a. Actual damages in the amount of $22,502.77;
b. All costs of suit; and
c. All other relief, in law and equity, to which Plaintiff may be entitled.
TX_0120G File No.: 23-233737 SCP
Respectfully submitted
MIDLAND CREDIT MANAGEMENT, INC.
Cyvddrs yb
Cynthia Stevens
Katharine Allen, Texas Bar No. 24055139
Brian Staley, Texas Bar No. 00797483
Michael Young, Texas Bar No. 24037759
Peter Newman, Texas Bar No. 24106928
Juan Goenaga, Texas Bar No. 00797868
Michael James, Texas Bar No. 24113377
Cynthia Stevens, Texas Bar No. 24129749
David Caviness, Texas Bar No. 04033300
John Gillespie, Texas Bar No. 07926300
Kristy Gabrielova, Texas Bar No. 24042929
Attorneys for MIDLAND CREDIT MANAGEMENT,
INC.
P.O. Box 460568
Houston, TX 77056
Tel: (866) 300-8750
Fax: 877-232-9721
Email: InternalLegal-TexasFax@MCMCG.COM
TX_0120G File No.: 23-233737 SCP
EXHIBIT A
bestegs DATE: 2/12/2020
TRUTH IN LENDING DISCLOSURE STATEMENT
Lender Borrower
Cross River Bank SARAH HODGES.
885 Teaneck Road
Teaneck, NJ 07666
ANNUAL FINANCE CHARGE Amount Financed Total of Payments
PERCENTAGE RATE The dollar amount the The amount of credit The amount you will
The cost of your credit
credit will cost you provided to you or on have paid after you
ata yearly rate your behalf have made all
payments as scheduled
14.99% $14,142.37 $33,253.50 $47,395.87
Your payment schedule will be as follows:
Number of Payments Amounts When payments are due
59 First payment is due on 3/11/2020,
$790.99
and then monthly on the same date
$727.46 thereafter.
Late charges: If your payment arrives after your 3-day grace period, you will be charged a late fee in
the amount of $15. This fee is charged only once per late payment.
Prepayment policy: If you pay off your loan in advance, you will not be charged a penalty. In the event
of a prepayment, you will not be entitled to a refund of any pre-paid finance charges or other fees.
See your Loan Agreement for any additional information about nonpayment, default or other matters
related to your loan.
9004a8Sc~25H8-4fDe-b417-ab5£O00d1ce0 Version 04-2017 {$0622598.1}
\temization of amount financed:
Amount of Your Loan: $35,000.00
Origination Fee: $1,746.50
Amount Given to You Directly: $33, 253.50
Annual Loan Interest Rate: 12.70%. Interest at this Loan Interest Rate plus the Origination Fee results
in the Finance Charge and Annual Percentage Rate disclosed above.
900da85c~25h8-4fDe-b417-ab5
£000d1ce0 Version 04-2017 (50622598.1}
LOAN AGREEMENT
SARAH HODGES
9004a85c-25b8-4f0e-b4 17-ab5f000d1ce0
Cross River Bank
Best Egg Loan Agreement and Promissory Note
The terms and conditions of this Loan Agreement and Promissory Note (this “Agreement”) are a
binding contract between Cross River Bank (“we,” “us,” or “our") and the borrower (“you” and
“your”), whose name and address are listed above. The terms of this Agreement affect your
tights and you should read them carefully and print a copy for your records. Your agreement to
these terms means you agree to borrow and repay the money if your loan is approved under the
terms of this Agreement, and agree to have any dispute with us resolved by binding arbitration
to extent permitted by law.
1. Loan Terms.
The principal Amount of Your Loan is: $35,000.00.
The Origination Fee is: $1,746.50.
The Amount Given to You Directly is: $33,253.50.
The Interest Rate is: 12.70%.
Your Payment Schedule is: 59 consecutive monthly payments of $790.99 and one final
payment of the unpaid principal balance, all unpaid interest, and all unpaid fees and
charges. The first payment will be approximately one calendar month after the loan is
funded. See paragraph 7. Payments, below, for more details.
f. Your loan is unsecured.
2. Credit Reports. You hereby authorize us (and our service providers) to obtain consumer
reports (also called credit reports) and related information about you from one or more
consumer reporting agencies. We may also obtain additional consumer reports at any time in
connection with the origination, servicing, administration, collection, or enforcement of the loan.
3. Verification of Information. We may verify any information you submit by requiring you to
produce appropriate documentation or other proof, and also reserve the right to conduct such
verification through third parties. You hereby authorize us to request and obtain data from any
third parties to verify any information you provide to us in connection with your application.
Verification of information may cause a delay in the disbursement of loan proceeds. We may
terminate consideration of your application at any time in our sole discretion.
4. Loan Funding and Closing.
. Funding. You authorize us to disburse the loan proceeds by Automated Clearing House
(“ACH”) transfer to your designated account or on your behalf to your selected designee.
Closing. BY ELECTRONICALLY SIGNING OR AGREEING TO THIS AGREEMENT IN
ANOTHER WAY, YOU ARE COMMITTING TO OBTAIN A LOAN FROM US IN THE
AMOUNT AND ON THE TERMS SET FORTH IN THIS AGREEMENT. YOU
GENERALLY HAVE NO RIGHT TO RESCIND THE LOAN ONCE MADE BUT YOU
MAY PREPAY THE LOAN AT ANY TIME WITHOUT PENALTY. WE HAVE NOT
AGREED TO MAKE A LOAN TO YOU UNLESS AND UNTIL WE INFORM YOU THAT
WE HAVE APPROVED YOUR LOAN APPLICATION.
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5. Promise to Pay. You promise to pay to us the Amount of Your Loan set forth in paragraph 1,
including Loan Terms, above, together with interest and fees as provided in this Agreement.
6. Interest. You agree to pay interest on the unpaid principal balance of the Amount of Your
Loan from the date the loan proceeds are disbursed until the loan is paid in full, at the fixed
Annual Loan Interest Rate set forth in paragraph 1. Loan Terms, above. Interest is calculated on
a daily basis, on the unpaid principal balance, at the interest rate, and for the number of days
that balance was unpaid. This is a simple interest obligation, and interest is not charged on
unpaid interest. The Total Payments and amount of the Finance Charge set forth in the Truth in
Lending Disclosure Statement assume that each payment is made on its due date. Late
payments will result in more interest (and fees as set out in paragraph 12); early payments will
result in less interest.
7. Payments. You agree to make monthly payments of principal and interest in the amounts set
forth in the payment schedule in paragraph 1. Loan Terms, above. The last payment may be a
different amount because of rounding and because of when you made your prior payments and
whether you paid them in full.
8. Making Your Loan Payments. if you authorize us and our successors and assigns (and any
of our successors’ and assigns’ affiliates, agents or service providers) and in consideration of
our disbursement of loan proceeds to you more rapidly by ACH than by check, we will debit your
designated account by ACH transfer for the amount of the payment due on its due date. With
regard to payments made by automatic withdrawal, you have the right to stop payment of
automatic withdrawais or revoke your prior authorization for automatic withdrawals by notifying
us or your financial institution at least three (3) banking days before the scheduled date of
transfer. You may elect at any time to make payments by check or another method by
contacting our customer service department at 1-844-825-2608. If you elect to make payments
by check or any method other than automatic withdrawal by ACH transfer, you must send such
payments as directed on your monthly billing statements. If you do not provide authorization to
debit your designated account by ACH transfer, then you will be deemed to have elected to pay
by another method in accordance with the foregoing provisions. If you elect to make payments
by ACH transfer, you authorize us and our successors and assigns (and any of our successors’
and assign’ affiliates, agents or service providers) to debit your designated account by ACH
transfer for the amount of each remaining payment due on its due date. However, if your
payment due date occurs on a non-business day, your account will be debited the next business
day. You will maintain sufficient funds in your designated account to make these payments. This
authorization does not affect your obligation to pay when due all amounts payable on your loan,
whether or not there are sufficient funds in your accounts. The foregoing authorization is in
addition to, and not in limitation of, any rights of setoff we may have. You have the right to have
any unauthorized debit credited to your bank account in accordance with the applicable
provisions of the Electronic Funds Transfer Act as implemented by Federal Reserve System
Regulation E. If you stop the automatic withdrawals, you are still obligated to make each
payment that is due. You will receive a monthly statement advising of your payment amount.
You may contact us for instructions on how to make payments by other payment options.
9. Prepayments and Partial Payments. You may make any payment early, in whole or in part,
without penalty or premium at any time. Any partial prepayment is to be applied to any
applicable payment or returned payment fees, interest, and then to the principal, and does not
postpone the due date of any subsequent monthly installments, unless we otherwise agree in
writing. If you prepay in part, you agree to continue to make regularly scheduled payments until
all amounts due under this Agreement are paid. We may accept late payments or partial
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payments, even though marked “paid in full” or with similar language, without losing any
rights under this Agreement. We will use any payment we receive to pay any payment then
due, in whole or in part. If no payment is then due, we will use any payment of the regularly
scheduled payment amount to pay the next scheduled payment. If the next scheduled payment
has been paid, or if the payment is in another amount, we will treat the payment as a partial
prepayment, unless you and we agree otherwise.
10. Application of Payments. All regularly scheduled payments are to be applied first to any
applicable payment or returned payment fees, interest, and then to the principal, and then to
collection and other permitted expenses provided; however, that after an Event of Default (as
defined below), payments will be applied to your obligations as we determine in our sole
discretion.
11. Other Borrower Obligations. You agree that you (A) are a US citizen or permanent
resident and (B) did not and will not, in connection with your loan application: (i) make any false,
misleading or deceptive statements or omissions of fact in your application; (ii) misrepresent
your identity, or describe, present or portray yourself as a person other than yourself, (iii) use
any of the loan proceeds to fund any post-secondary educational expenses, including, but not
limited to, tuition, fees, books, supplies, miscellaneous expenses, or room and board. You
acknowledge and agree that we may rely without independent verification on the accuracy,
authenticity, and completeness of all information you provide to us. You certify that the proceeds
of the loan will not be used for the purpose of purchasing or carrying any securities or to fund
any illegal activity.
12. Fees.
° Origination Fee. If applicable, you agree to pay a non-refundable Origination Fee to us,
as set forth in paragraph 1. Loan Terms, above. This fee will be deducted from your loan
proceeds, so the Amount Given to You Directly or on your behalf may be less than the
full principal Amount of Your Loan. You acknowledge that the Origination Fee will be
considered part of the principal on your loan and is subject to the accrual of interest.
Returned Check or ACH Fee. You agree to pay a fee of $15 if ACH transfers or checks
are returned or fail due to insufficient funds in your account or for any other reason. The
bank that holds your designated account may assess its own fee in addition to the fee
We assess.
Late Fee. If your payment is not received by us within three days of the due date, we will
charge a late fee in the amount of $15. We will charge only one late fee on each late
payment. These fees may be collected using ACH transfers initiated by us from your
designated account. Any such late fee assessed is immediately due and payable
(subject to application of payments in paragraph 10. Any payment received after 6:00
P.M., Eastern Time, on a banking day is deemed received on the next succeeding
banking day.
13. Default. You may be deemed in default on your loan (each, an “Event of Default”) if you: (1)
fail to pay timely any amount due on your loan; (2) file or have instituted against you any
bankruptcy or insolvency proceedings or make any assignment for the benefit of creditors; (3)
die; (4) commit fraud or make any material misrepresentation in this Agreement, or any other
documents, applications or related materials delivered to us in connection with your loan; or (5)
fail to abide by the terms of this Agreement. Upon the occurrence of an Event of Default, and
after any notice and opportunity to cure the default, if such notice and right to cure is required by
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applicable law, we may exercise all remedies available to us under applicable law and this
Agreement including, without limitation, demand that you or your estate immediately pay all
amounts owed on your loan.
14. Collection & Reporting of Delinquent Loans. You agree to pay all costs of collecting any
delinquent payments, as permitted by applicable law, including, if we file suit in court,
reasonable attorneys’ fees for an attorney who is not our salaried employee. We may report
information about your account to credit bureaus. Late payments, missed payments, or other
defaults on your account may be reflected in your credit report.
15. Communications Consent: You agree that we and any of our affiliates, agents, service
providers or assigns (and any of our assigns' affiliates, agents or service providers) may call
you, leave you a voice prerecorded, or artificial voice message, or send a text, e-mail, or other
electronic message to you for any purpose related to the processing, servicing and collection of
your loan, for surveys or research or for any other informational purpose related to your loan
(each a “Communication”) using an automatic telephone dialing system or otherwise. You
agree that we and any of our affiliates, agents, service providers or assigns (and any of our
assigns’ affiliates, agents or service providers) may call or text you at any telephone number
associated with your loan, including cellular telephone numbers, and may send an e-mail to any
email address associated with your loan. You also agree that we and any of our affiliates,
agents, service providers or assigns (and any of our assigns’ affiliates, agents or service
providers) may include your personal information in a Communication and may conduct a
Communication using an automatic telephone dialing system. We will not charge you for a
Communication, but your data service provider may. In addition, you understand and agree that
we and any of our affiliates, agents, service providers or assigns (and any of our assigns’
affiliates, agents or service providers) may always communicate with you in any manner
permissible by law that does not require your prior consent.
16. Assignment of Your Loan. You agree that we may, without further prior notice to or
consent from you, assign any or all of our right, title and interest in this Agreement and your
loan, including record of this loan, the debt incurred, any transfer of the obligation and your
promise to repay, to anyone. Marlette Funding, LLC or its agents or designees, acting solely for
this purpose as your agent, shall maintain at one of its offices in Wilmington, Delaware a copy of
each assignment delivered to it and a register for the recordation of the name and address of
the holder of your loan {including any assign, if any, who becomes the holder of your loan
pursuant to an assignment), and principal amounts (and stated interest) of your loan or loans
owing to, such holder pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error, and you, Cross River Bank or
its agents or designees, and the holder of your loan (including any assign, if any, who becomes
the holder of your loan pursuant to an assignment) shall treat the person whose name is
recorded in the Register pursuant to the terms hereof as a holder of your loan hereunder for all
purposes of this Agreement. Recordation in the Register is the sole means of assignment or
transfer of the holder's (or its assign’s) interest in your loan. The Register shall be available for
inspection by you and any holder (including assigns), at any reasonable time and from time to
time upon reasonable prior notice.
17. Entire Agreement. This Agreement represents the entire agreement between you and us
regarding the subject matter hereof and supersedes all prior or contemporaneous
communications, promises and proposals, whether oral, written or electronic, between us with
respect to your application and loan.
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18. Electronic Transactions. THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT
TO ELECTRONIC TRANSACTIONS AND DISCLOSURES, WHICH YOU AGREED TO AT THE
TIME OF YOUR APPLICATION. YOU EXPRESSLY AGREE THAT THIS AGREEMENT IS A
“TRANSFERABLE RECORD’ FOR ALL PURPOSES UNDER THE ELECTRONIC.
SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT AND THE UNIFORM
ELECTRONIC TRANSACTIONS ACT.
19. Notices. All notices and other communications to you hereunder may be given by email to
your email address on file with us or by regular mail to your address on file with us, and shall be
deemed to have been duly given and effective upon transmission. You acknowledge that you
have sole access to the email account on file and that communications from us may contain
sensitive, confidential, and collections-related communications. If your email address changes,
you must notify us of the change. You also agree to update your residence address and
telephone number if they change. You may send written correspondence to us at the following
address: Best Egg, P.O. Box 42912, Philadelphia, PA 19101. You may also reach us by phone
by dialing 1-844-825-2608 during normal business hours.
20. NO WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE
MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
21, LIMITATION ON LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY
LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES,
EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE
MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT
THE AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE OR LOCAL TAX
LIABILITY.
22. Waiver of Demand. You hereby waive demand, notice of non-payment, protest, and all
other notices or demands whatsoever, unless such waiver is prohibited by law.
23. Amendments. Any changes to this Agreement must be in writing signed by you and us.
24. Miscellaneous. The parties acknowledge that there are no third party beneficiaries to this
Agreement. You may not assign, transfer, sublicense or otherwise delegate your rights or
obligations under this Agreement to another person without our prior written consent. Any such
assignment, transfer, sublicense or delegation in violation of this paragraph 24 shall be null and
void. We are located in the State of New Jersey and this Agreement will be entered into in the
State of New Jersey. The provisions of this Agreement will be governed by federal laws and, to
the extent that state law applies, the laws of the State of New Jersey, without regard to any
principle of conflicts of laws that would require or permit the application of the laws of any other
jurisdiction. Any waiver of a breach of any provision of this Agreement will not be deemed a
waiver of any other subsequent breach. Failure or delay by either party to enforce any term or
condition of this Agreement will not constitute a waiver of such term or condition. If at any time
after the date of this Agreement, any of the provisions of this Agreement shall be held by any
court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality and unenforceability of such provision shall have no effect
upon and shall not impair the enforceability of any other provisions of this Agreement. The
headings in this Agreement are for reference purposes only and shall not affect the
interpretation of this Agreement in any way.
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25. NOTICE TO ACTIVE DUTY MILITARY SERVICEMEMBERS AND THEIR DEPENDENTS:
Federal law provides important protections to members of the Armed Forces and their
dependents relating to extensions of consumer credit. In general, the cost of consumer
credit to a member of the Armed Forces and his or her dependent may not exceed an
annual percentage rate of 36 percent. This rate must include, as applicable to the credit
transaction or account: The costs associated with credit insurance premiums; fees for
ancillary products sold in connection with the credit transaction; any application fee
charged (other than certain application fees for specified credit transactions or
accounts); and any participation fee charged (other than certain participation fees for a
credit card account).
For more information regarding your rights as a covered borrower under the Military Lending
Act, please call 1-844-876-2611.
26. Arbitration.
a. Either party to this Agreement, or any subsequent assign of this Agreement, may, at its
sole election, require that the sole and exclusive forum and remedy for resolution of a
Claim be final and binding arbitration pursuant to this paragraph 25 (the “Arbitration
Provision”), unless you opt out as provided in paragraph 25(b) below. As used in this
Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or
controversy involving you (or persons claiming through or connected with you), on the
one hand, and us and/or any assign (or persons claiming through or connected with us
and/or any assign), on the other hand, relating to or arising out of this Agreement and/or
the activities or relationships that involve, lead to, or result from this Agreement,
including (except to the extent provided otherwise in the last sentence of paragraph 25(f)
below) the validity or enforceability of this Arbitration Provision, any part thereof, or the
entire Agreement. Claims are subject to arbitration regardless of whether they arise from
contract; tort (intentional or otherwise); a constitution, statute, common law, or principles
of equity; or otherwise. Claims include matters arising as initial claims, counter-claims,
cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to
be given the broadest possible interpretation that is enforceable.
You may opt out of this Arbitration Provision for all purposes by sending an arbitration
opt-out notice to Best Egg, P.O. Box 42912, Philadelphia, PA 19101, only if received at
the specified address within 30 days of the date of your electronic acceptance of the
terms of this Agreement. The opt-out notice must clearly state that you are rejecting
arbitration; identify the Agreement to which it applies by date; provide your name,
address, and social security number; and be signed by you. You may send the opt-out
notice in any manner you see fit as long as it is received at the specified address within
the specified time. No other methods can be used to opt-out of this Arbitration Provision.
If the opt-out notice is sent on your behalf by a third party, such third party must include
evidence of his or her authority to submit the opt out notice on your behalf.
The party initiating arbitration shall do so with the American Arbitration Association (the
“AAA") or JAMS. The arbitration shall be conducted according to, and the location of the
arbitration shall be determined in accordance with, the rules and policies of the
administrator selected, except to the extent the rules conflict with this Arbitration
Provision or any countervailing law. In the case of a conflict between the rules and
policies of the administrator and this Arbitration Provision, this Arbitration Provision shall
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control, subject to countervailing law, unless all parties to the arbitration consent to have
the rules and policies of the administrator apply.
\f we (or any assign) elect arbitration, we (or the assign, as the case may be) shall pay
all the administrator's filing costs and administrative fees (other than hearing fees). If you
elect arbitration, filing costs and administrative fees (other than hearing fees) shall be
paid in accordance with the rules of the administrator selected, or in accordance with
countervailing law if contrary to the administrator’s rules. We (or the assign, as the case
may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings.
Fees for hearings that exceed one day will be paid by the party requesting the hearing,
unless the administrator's rules or applicable law require otherwise, or you request that
we (or the assign) pay them and we agree (or the assign agrees) to do so. Each party
shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If
a statute gives you the right to recover any of these fees, these statutory rights shall
apply in the arbitration notwithstanding anything to the contrary herein.
Within 30 days of a final award by the arbitrator, any party may appeal the award for
reconsideration by a three-arbitrator panel selected according to the rules of the
arbitrator administrator. In the event of such an appeal, any opposing party may cross-
appeal within 30 days after notice of the appeal. The panel will reconsider de novo all
aspects of the initial award that are appealed. Costs and conduct of any appeal shall be
governed by this Arbitration Provision and the administrator's rules, in the same way as
the initial arbitration proceeding. Any award by the individual arbitrator that is not subject
to appeal, and any panel award on appeal, shall be final and binding, except for any
appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a
judgment in any court of competent jurisdiction.
We agree not to invoke our right to arbitrate an individual Claim you may bring in Small
Claims Court or an equivalent court, if any, so long as the Claim is pending only in that
court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR
COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF
OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE
ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN
ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE
ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration,
no party to the arbitration may join, consolidate, or otherwise bring claims for or on
behalf of two or more individuals or unrelated corporate entities in the same arbitration
unless those persons are parties to a single transaction. Unless consented to in writing
by all parties to the arbitration, an award in arbitration shall determine the rights and
obligations of the named parties only, and only with respect to the claims in arbitration,
and shall not (a) determine the rights, obligations, or interests of anyone other than a
named party, or resolve any Claim of anyone other than a named party; nor (b) make an
award for the benefit of, or against, anyone other than a named party. No administrator
or arbitrator shall have the power or authority to waive, modify, or fail to enforce this
paragraph 25(f), and any attempt to do so, whether by rule, policy, arbitration decision or
otherwise, shall be invalid and unenforceable. Any challenge to the validity of this
paragraph 25(f) shall be determined exclusively by a court and not by the administrator
or any arbitrator.
This Arbitration Provision is made pursuant to a transaction involving interstate
commerce and shall be governed by and enforceable under the FAA. The arbitrator will
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apply substantive law consistent with the FAA and applicable statutes of limitations. The
arbitrator may award damages or other types of relief permitted by applicable
substantive law, subject to the limitations set forth in this Arbitration Provision. The
arbitrator will not be bound by judicial rules of procedure and evidence that would apply
in a court. The arbitrator shall take steps to reasonably protect confidential information.
This Arbitration Provision shall survive (i) suspension, termination, revocation, closure,
or amendments to this Agreement and the relationship of the parties and/or assignee; (ii)
the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any
loan or this Agreement to any other person or entity. If any portion of this Arbitration
Provision other than paragraph 25(f) is deemed invalid or unenforceable, the remaining
portions of this Arbitration Provision shall nevertheless remain valid and in force. If an
arbitration is brought on a class, representative, or collective basis, and the limitations on
such proceedings in paragraph 25(f) are finally adjudicated pursuant to the last sentence
of paragraph 25(f) to be unenforceable, then no arbitration shall be had. In no event shall
any invalidation be deemed to authorize an arbitrator to determine Claims or make
awards beyond those authorized in this Arbitration Provision. THE PARTIES
ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A
COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY
PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION.
THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS
TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON
ELECTION OF ARBITRATION BY ANY PARTY.
EXCEPTION: Active duty military servicemembers and their dependents are exempt
from arbitration to the extent provided for in the Military Lending Act.
Signature: SARAH HODGES, Signature Date: 2/12/2020
IP Address: 107.77.221.72
You can contact us for purposes of this Agreement at Best Egg, P.O. Box 42912, Philadelphia,
PA 19101. For customer service, our telephone number is 1-844-825-2608.
STATE LAW NOTICES:
CALIFORNIA RESIDENTS: A married applicant may apply for a separate account. If we take
any adverse action as defined by § 1785.3 of the California Civil Code and the adverse action is
based, in whole or in part, on any information contained in a consumer credit report, you have
the right to obtain within 60 days a free copy of your consumer credit report from the consumer
reporting agency who furnished the consumer credit report and from any other consumer credit
reporting agency that complies and maintains files on consumers on a nationwide basis.
CALIFORNIA and UTAH RESIDENTS: As required by California and Utah law, you are hereby
notified that a negative credit report reflecting on your credit record may be submitted to a credit
reporting agency if you fail to fulfill the terms of your credit obligations.
KANSAS (and IOWA residents if the principal amount of this loan exceeds $20,000): Important:
read before signing. The terms of this agreement should be read carefully because only those
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terms in writing are enforceable. No other terms or oral promises not contained in this written
contract may be legally enforced. We may change the terms of this agreement only by another
written agreement.
MARYLAND RESIDENTS: To the extent that any court determines that this Agreement is
subject to Maryland law concerning consumer credit, you and we agree and elect to make this
loan pursuant to Subtitle 10 (Credit Grantor Closed End Credit provisions) of Title 12 of the
Maryland Commercial Law Article only to the extent that such provisions are not inconsistent
with our authority under federal law (12 U.S.C. § 1831d) and related regulations and
interpretations, which authority we expressly reserve.
MASSACHUSETTS RESIDENTS: Massachusetts law prohibits discrimination based upon
marital status or sexual orientation.
MISSOURI AND NEBRASKA RESIDENTS: Oral loan agreements or commitments to loan
money, extend credit or to forbear from enforcing repayment of such debt, including promises to
extend or renew such debt, are not enforceable. To protect you and us and any holder of this
agreement from misunderstanding or disappointment, any agreements we reach covering such
matters are contained in this writing, which is the complete and exclusive statement of the
agreement between us, except as we may later agree in writing to modify it.
NEW HAMPSHIRE RESIDENTS: You are not required to sign this agreement (directly or
indirectly), or agree to enter into such an agreement as a condition of purchasing any property,
goods or services.
NEW JERSEY RESIDENTS: The paragraph headings of this Agreement are a table of contents
and not contract terms. Portions of this Agreement with references to actions taken to the extent
of applicable law apply to acts or practices that New Jersey law permits or requires. In this
Agreement, actions or practices (i) which are or may be permitted by “applicable law” are
permitted by New Jersey law, and (ii) that may be or will be taken by us unless prohibited by
“applicable law” are permitted by New Jersey law.
NEW YORK, RHODE ISLAND and VERMONT RESIDENTS: You understand and agree that
we may obtain a consumer credit report in connection with this application and in connection
with any update, renewals for extension of any credit as a result of this application. If you ask,
you will be informed whether or not such a report was obtained, and if so, the name and
address of the agency that furnished the report. You also understand and agree that Lender
may obtain a consumer credit report in connection with the review or collection of any loan
made to you as a result of this application or for other legitimate purposes related to such loans.
NORTH DAKOTA RESIDENTS ONLY: Notice: Money brokers are licensed and regulated by
the Department of Financial Institutions, 2000 Schafer Street, Suite G, Bismarck, North
Dakota 58501-1204. The Department of Financial Institutions has not passed on the merits of
the contract and licensing does not constitute an approval of the terms or of the broker's ability
to arrange any loan. Complaints regarding the services of money brokers should be directed to
the Department of Financial Institutions. (NDAC 13-05-01-09)
OHIO RESIDENTS: The Ohio laws against discrimination require that all creditors make credit
equally available to all creditworthy customers, and that credit reporting agencies maintain
separate credit histories on each individual upon request. The Ohio Civil Rights Commission
administers compliance with the law.
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SOUTH DAKOTA RESIDENTS: Any improprieties in making the loan or in loan practices may
be referred to the South Dakota Division of Banking, located at 1601 N. Harrison Avenue, Suite
1, Pierre, SD 57501, or by phone at 605.773.3421.
WISCONSIN RESIDENTS: For married Wisconsin residents, your signature confirms that this
loan obligation is being incurred in the interest of your marriage or family. No provision of any
marital property agreement (pre-marital agreement), unilateral statement under § 766.59 of the
Wisconsin statutes or court decree under § 766.70 adversely affects our interest unless, prior to
the time that the loan is approved, we are furnished with a copy of the marital property
agreement, statement, or decree or have actual knowledge of the adverse provision. If this loan
for which you are applying is granted, you will notify us if you have a spouse who needs to
receive notification that credit has been extended to you.
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Field Field Data
Account Number GH 415
Seller Account ID 416
First Name SARAH
Last Name HODGES
SSN XXX-XX-1592
Date of Birth a
Address 1 2339 HICKORY HOLLOW LN
City SPRING
State TX
Zip 77386
Open Date 02/12/2020
Last Payment Date 09/11/2022
Last Payment Amount $790.99
Sale Amount $22,502.77
Charge Off Date 02/28/2023
Charge off Balance $22,502.77
Post Charge Off Interest $0.00
Post Charge off Fee $0.00
Post Charge off Payments $0.00
Post Charge off Payments and Credits $0.00
Post Charge off Credits $0.00
Affinity BESTEGG
Account information provided by Marlette Servicing, LLC pursuant to the Bill of Sale/Assignment of Accounts
transferred on or about 03/17/2023 in connection with the sale of accounts from Marlette Servicing, LLC to Midland
Credit Management, Inc.
CHARGEOFF_SALE_midl_20230313
EXHIBIT B
STATE OF TEXAS
Midland Credit Management, Inc.,
Plaintiff
-vs- AFFIDAVIT OF LAURA WERNER
SARAH HODGES,
Defendant(s).
Laura Werner, whose business address is 600 W. Saint Germain St Suite 200, St. Cloud,
MN 56301-3616, certifies and says:
i Iam employed as a Legal Specialist and have access to pertinent account records for
Midland Credit Management, Inc. ("Plaintiff or "MCM"). Iam a competent person over
eighteen years of age, and make the statements herein based upon personal knowledge of those
account records maintained by Plaintiff. Plaintiff is the current owner of, and was assigned
all the rights, title and interest to Defendant's MARLETTE FUNDING GRANTOR TRUST
2021-1 account XXXX1415 (MCM Number 321038547) (hereinafter "the Account").
2 Thave access to and have reviewed the electronic records pertaining to the Account
maintained by MCM and am authorized to make this affidavit on MCM's behalf. The
electronic records reviewed consist of (i) data and records acquired from the seller or assignor
when MCM purchased or was assigned the Account, which were incorporated into MCM's
business records upon purchase or assignment, and (ii) data and records generated by MCM
in connection with servicing the Account since the date the Account was purchased by or was
assigned to MCM. In addition, I reviewed the documents that are attached to this affidavit.
3 I am familiar with and trained on the manner and method by which MCM creates
and maintains its business records pertaining to the Account, which consist of (i) data and
documents acquired from the seller or assignor, and (ii) subsequent collection and/or servicing
activities by MCM. The records are acquired or created, and are kept in the regular course of
MCM's business. It was in the regular course of MCM's business for a person with knowledge
of the subsequent collection and/or servicing activities recorded, and a business duty to report,
AFFIDAVIT OF LAURA WERNER - |
TESORO PRADA VEC