Credit Basics > The Flyingifr Method of Aggressive Credit Repair © 2007

Notice of Lawsuit found hanging on doorknob... now what?

(1/10) > >>

summer12:
Please Help! My husband has been served a civil citation/petition - notice of suit. The papers were found hanging from our doorknob this morning. The plaintiff is listed as Midland Funding LLC vs my husband, for a small business credit card debt from 2009. We are in Texas and SOL here is 4 years. The amount listed is just over $7,000. My husband is self employed and his business basically tanked in 2009 after an extended illness and poor economic conditions in his line of work. Prior to that, he enjoyed a stellar credit rating. We have never received a phone call from Midland and if we received any written communication, I am not aware of such, (probably tossed it, unopened). I have spent the day researching this site and many others, but have not found all of the answers I had hoped for. I understand I should have sent a DVR, but I in-advertantly missed their communication. So what now? My questions are as follows & any help would be very much appreciated.

1) The original complaint is dated Feb 3, 2012, signed by the judge Feb 8, 2012. There is also attached an "order granting motion for service" stamped May 24, 2012 and signed May 29, 2012. It states that an answer is required to be filed on the next Monday following the expiration of 10 days after service. Problem: Today is June 7, and even if I go by the latest date of May 29, the papers were delivered on the 9th day. Also, nothing has been filled in under the section "Officer's Return". No date of service, place of service, to whom it was served & no signature by the server. Is this considered a legal service considering the above facts?

2) How do I go about filing an answer? There are 13 pages in the citation in all, including, PLAINTIFF'S ORIGINAL PETITION & REQUEST FOR ADMISSIONS, PLAINTIFF'S FIRST REQUEST FOR DISCLOSURE- Rule 194, PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS - Facts To Be Admitted Or Denied, (1-16), and Interrogatories, (1-16). It states that a written response is due to the collection agency in 30 days. What, if any, part of this goes to the court? How detailed does the answer to either the court or the plaintiff have to be? What, specifically, should the answer to the court contain?

3) The section titled: Rule 194 REQUEST FOR DISCLOSURE contains section "194.2 Content. A party may request disclosure of any or all of the following: (a - i)", and lists options such as:
(c) the legal theories and, in general, the factual basis of the responding party's claims or defenses
(d) the amount and any method of calculating economic damages
(e) name, address, phone# of persons having knowledge of relevant facts, each person's connection to the case
(f) testifying expert... etc, etc.
Does this also apply to the defendant? May we request this disclosure from Midland Funding, as well? The way I'm reading this section is that they are required to disclose the rights of the defendant? Not sure if this has to do with the chain of ownership and maintenance of the original account I read about earlier. As I recall, it says they must provide testimony by each person that serviced the account since it's inception. Is that required by law, and does it pertain to this section of the citation?

4) I checked his credit report with the 3 credit reporting agencies and Midland Funding reports as a Factoring Company Account “account open”. Account was in default when purchased by Midland, violating FDCPA, §807(2)(A)  Midland does not list any OC on Equifax. Does this have any bearing on the case?

5) Should we obtain council since it's already gone this far, or can we still fight this alone? From what I can gather, Midland Funding is on a lawsuit spree in Texas & they have been sued by the Texas A.G. for deceptive practices.

Let me say, I do not take this lightly, however, I see no reason to give any junk debt collector one red cent. My husband's credit has been all but ruined and that is punishment enough, especially for someone self-employed. He has always been an honest business person & done everything by the book, but no one is infallible. He's been slowly trying to rebuild his business and a judgment against him would cause an extreme set back for us in our struggle to survive. Please, if anyone has some sound advise we would be most grateful.

E. Normis Debtor:
If it's truly a business debt, the FDCPA doesn't apply.

Assuming your home address was also the business address or resident agent address, you'd have to determine what constitutes proper service on a business or resident agent in TX.

CleaningUp:
Was the business incorporated?

summer12:
My apologies for the length of the post. I'm new to this, & I'm trying to digest what seems to be a significant amount of information as quickly as possible! I am so grateful for any and all assistance, but if there is a better way to pose my questions, please let me know.   
 
In answer:

No, the business was never incorporated, so credit was granted on personal assurance. My husband is being sued as an individual.

The business is located on the residential property, (same address), but it is considered to exist on a separate lot by the tax assessor's office, and therefore is not eligible under homesteaded rules. Both our residence and the business, (land and building), we own outright - no mortgage. We also own both our vehicles, therefore, I don't believe BK is an option, in this case, and it is an avenue I am loathe to explore. I know, for a fact, that Texas law prohibits wage garnishment & liens under the homestead act, but a bank account can be frozen. I don't know what would happen if we decided to sell. I believe, but am not positive, that property, used directly for business purposes, and one vehicle per family member, are exempt. So, Texas law is good in that respect... t's the bank account that poses a problem. 

The only other debt we have is one other business card, I'll call cc2, (at a slightly higher amount. I did catch that one - sent a DVR, cmrrr, and have yet to receive a reply after 39 days. Wondering if it would be wise to send a second DVR as a follow-up to the cc2 CA. My husband also has a rather large hospital bill, but we haven't heard from that CA at all).

The wording of the "grant for motion to serve" page makes it difficult to determine if they got permission to attach the citation to the door.

I guess my most immediate concerns are how to proceed in respect to:
1) what to admit/deny on the answer
2) should I still send a DVR to cc1
3) was this a legal service, according to the way it was delivered & is that defense fruitless, anyway
4) what regulations has Midland violated

Other questions can be asked when the bridge needs to be crossed. I'll keep it shorter in the future. Thanks, again!

chester474:
What do you mean by "notice of a lawsuit?"

Was it a summons and a complaint?

In most states hanging a summons and a complaint on a doorknob would not be sufficient service of process.

The plaintiff  has to make personal service on someone found at your resdence or alternate service by mail according to your state's rules of civil procedure.

Check your state's Rules of Civil Procdure and find out.

That's the first step.

Navigation

[0] Message Index

[#] Next page

Go to full version