Author Topic: Being Sued by Midland - SOL - NEED HELP  (Read 818 times)

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ICanDoThis

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Being Sued by Midland - SOL - NEED HELP
« on: April 04, 2013 07:17:30 PM »
Hello everyone, glad I found this board! I sure hope someone can help me with this as I'm getting a bit confused on all of this credit / legal stuff.

My husband is being sued by Midland. It would be on a debt that is past the Alabama 3 year Statute of Limitations because all of the credit cards he had in the past would all have been delinquent back at the end of 2007 / beginning of 2008. This is for a Bank of America credit card.

After a little bit of shadiness in a process server supposedly trying to serve him (not the constable/sheriff), he was finally served last Friday night. He has 14 days to answer.

I can already tell they are looking for an easy judgement.

One issue I can already see is they are trying to claim that it is a "contract" instead of an open account because part of the statement of claim states: "Defendant owes Plaintiff $XXXX due BY CONTRACT between the plaintiff and defendant". The SOL on a contract here I believe is 6 years.

The complaint states that the account was charged off  the end of June of 2008. (I would have to double check credit reports & such because I think it was before then but even if June of 2008, this would still be past SOL).

The complaint states Count One as BREACH OF CONTRACT. So they ARE trying to make this fall under "Contract/Agreement" to still be within SOL.

How do I even begin to fight this?

On the answer, it's got a box to check to deny that I am responsible at all, but have to explain reasons for that answer in the space below.

After the lawsuit was filed, my husband received two different letters, dated the same date, from the law firm representing Midland.
One is offering a payment arrangement.

The other looks like it's a scare tactic, as if it's a collection letter with no mention of the lawsuit that they have already filed. It is a reminder about disputing a debt within the 30 day period or make an acceptable repayment plan or "you will leave us no choice other than suggest to our client that they consider all other available methods of collections including but not limited to, legal action to obtain a judgment against you in the amount of the debt plus allowable interest and costs of such proceedings.  To avoid such action, you may make payment in full or call our office to make payment arrangements..."

I'm confused! If they filed a lawsuit that is pending an answer to the complaint, why are they sending a letter threatening legal action? I mean haven't they already done legal action?! There is NO mention of the pending lawsuit on this letter whatsoever! But, the thing is, the other letter (same people, but different letterhead) is dated the SAME DATE as this one and mentions payment plan settlement but only mentions the lawsuit by case number in the RE line.

I KNOW I've got to get the answer sent in within the next few days. But, do I also send a letter requesting verification/validation to Midland or do I send one to this law firm collection agency representing Midland or both?

Sorry so long & all the questions....I need help on how to proceed with this.


altony

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #1 on: April 04, 2013 07:22:37 PM »
Welcome and first of all You must prepare and file an answer within the 14 days . Deny each claim in the summons besides the ones that state the name and address (granted they are correct)
Also have you checked to see when was the last payment made to make sure the debt is past its SOL.?

Also document their paperwork since you most probably have FDCPA violations, scare tactic not saying anything about suing you and offering a payment plan.

Have you recorded all their phone calls?

go to annualcreditreport.com and pull all your three (free ) credit reports?


ICanDoThis

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #2 on: April 04, 2013 08:27:43 PM »
Yes, I intend to work on the answer tonight & turn it in tomorrow.

Per the most recent free Equifax credit report from the end of March, the Bank of America account says the last payment was 11/2007 & the date of 1st delinquency is 1/2008, but says date major delinquency 1st reported 6/2008. Which one of those dates do I go by?

I'll look at the rest of the credit reports when I get back & post & see what damage Midland has listed on there as well.

I am trying to sort through tons of old paperwork to get everything together, but I will most definitely hang on to these most recent letters to use against them. Gotta get my ducks in a row.

Thanks!

credit_h

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #3 on: April 04, 2013 09:27:57 PM »
You go by the last payment date.

duh

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #4 on: April 04, 2013 10:11:56 PM »
Yes, I intend to work on the answer tonight & turn it in tomorrow.

Per the most recent free Equifax credit report from the end of March, the Bank of America account says the last payment was 11/2007 & the date of 1st delinquency is 1/2008, but says date major delinquency 1st reported 6/2008. Which one of those dates do I go by?

I'll look at the rest of the credit reports when I get back & post & see what damage Midland has listed on there as well.

I am trying to sort through tons of old paperwork to get everything together, but I will most definitely hang on to these most recent letters to use against them. Gotta get my ducks in a row.

Thanks!

The date you want to go by it the first missed payment date that a payment was not made.

In otherwords...

The last payment was made 11/2007.

That could have been for a statement with a November due date, or a December due date, depending on when the payment was made and to which billing statement that it would have applied to.

For this example, lets use a December 2007 due date.

A payment made in Nov 2007 to apply to a December 2007 due date was the last
payment made on the account.

January 2008 there was no payment made.

This therefore becomes the start of the SOL countdown.

They noted that Jan. 08 was date of first delinquency and this also is the start date for the countdown, unless there was another payment made after that.

NOW a couple of other points.

B of A uses DE law, so even if they are using breach, you can still claim SOL
by claiming the Choice of Law state in the agreement which is DE.  (3 years)

If they insist on breach of contract then by all means claim their contract choice.

You will have some work on this as you will need to research your state to see how
agreeable they are to "foreign" choice of law, but you can do it.

In addition, do not just use SOL as a solitary defense.

You are sued by a JDB (junk debt buyer).

You need to claim standing, and you need to read and study up on that.

They will most likely no be able to provide what wiull be needed in court
to collect, if you stay on top of this and learn.

As to the charge off date.... that is strictly an accounting term they use to
get things squared up in their books.....

It has nothing to do with your SOL date. ( Indirectly, as it does come usually
at about the 6 month mark, add about 7 years onto this and that is how long
this can stay on your credit report. But one thing at a time.)

And remember...... deny everything in the claim, other then name, and possibly address.

I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

ICanDoThis

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #5 on: April 04, 2013 10:22:32 PM »
Bank of America listed on Experian shows payment history as ok until 1/2008 where it's showing 30 days late & charged off 6/08

Midland is listing it on Experian with 1 month terms and a credit limit amount & a recent balance even more than that, Status Collection & that recent balance amount past due as of their March reporting

Bank of America listed on Equifax shows date of last payment 11/2007, with date of first delinquency being 1/2008 and CO 6/08 Revolving, Credit Card

Midland listed on Equifax shows a balance past due amount, Collection, Open Account, Debt Buyer
Date of 1st delinquency 12/07, Major Del. 1st reported 12/10

TransUnion has nothing regarding this.

ICanDoThis

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #6 on: April 04, 2013 10:48:49 PM »
Ok, thank you. I see I'm going to have to take this thing one step at a time.  My main concern right now is getting the complaint answered. I will see about any violations, reporting errors, etc. to use against them & read up more about this after I have submitted the answer to the complaint.

As far as the court papers, here's what I have:

SUMMONS
STATEMENT OF CLAIM (Complaint) General
The next page I'm not sure what its called but its the general format that starts out "IN THE SMALL CLAIMS COURT....

MIDLAND FUNDING LLC
Plaintiff,
v.
XXXXX,
Defendant

Then, it has in numbered paragraphs COMPLAINT
SERVICE (where defendant may be served --name & address)
VENUE
FACTS
COUNT ONE - BREACH OF CONTRACT
COUNT TWO - ACCOUNT STATED

Then, the last page is DEFENDANT'S ANSWER
PART I DEFENDANT'S ANSWER TO THE COMPLAINT
Check one:
A. I do not live in this county. I want this case transferred to my home county to ...
B. I admit everything in the Statement of Claim and do ot want a trial. (This means that you consent to a judgment for the amount claimed plus court costs.
C. I admit that I owe some money, but not the total amount claimed by the plaintiff (Explain below)
D. I deny that I am responsible at all. (Explain below)

IF YOU CHECKED C OR D, BRIEFLY EXPLAIN THE REASONS FOR YOUR ANSWER.





Then, there are blanks to fill out Name & Address & Phone # of employer & Weekly Take-home pay (Yeah right, like that's happening...lol)

Then, a place to sign it and says to mail a copy to the Small Claims court & keep a copy for your files.


So, it seems like I only turn in the form only, correct? It doesn't list different things to agree or deny. So, I'm just gonna choose D I deny that I am responsible at all, it I don't know what to put for an explanation. ????

Do I also send a copy of this to Midland's lawyers? Can I get the clerk to stamp it & make me 2 copies...one for myself with the stamp & one with the stamp to mail to Midland's lawyers?

After I get this submitted, is it ok to go ahead & send debt validation letters to Midland & this law firm (that seems to be a collection agency also)?

duh

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #7 on: April 05, 2013 02:11:11 AM »
Ok, thank you. I see I'm going to have to take this thing one step at a time.  My main concern right now is getting the complaint answered. I will see about any violations, reporting errors, etc. to use against them & read up more about this after I have submitted the answer to the complaint.

As far as the court papers, here's what I have:

SUMMONS
STATEMENT OF CLAIM (Complaint) General
The next page I'm not sure what its called but its the general format that starts out "IN THE SMALL CLAIMS COURT....

MIDLAND FUNDING LLC
Plaintiff,
v.
XXXXX,
Defendant

Then, it has in numbered paragraphs COMPLAINT
SERVICE (where defendant may be served --name & address)
VENUE
FACTS
COUNT ONE - BREACH OF CONTRACT
COUNT TWO - ACCOUNT STATED

Then, the last page is DEFENDANT'S ANSWER
PART I DEFENDANT'S ANSWER TO THE COMPLAINT
Check one:
A. I do not live in this county. I want this case transferred to my home county to ...
B. I admit everything in the Statement of Claim and do ot want a trial. (This means that you consent to a judgment for the amount claimed plus court costs.
C. I admit that I owe some money, but not the total amount claimed by the plaintiff (Explain below)
D. I deny that I am responsible at all. (Explain below)

IF YOU CHECKED C OR D, BRIEFLY EXPLAIN THE REASONS FOR YOUR ANSWER.





Then, there are blanks to fill out Name & Address & Phone # of employer & Weekly Take-home pay (Yeah right, like that's happening...lol)

Then, a place to sign it and says to mail a copy to the Small Claims court & keep a copy for your files.


So, it seems like I only turn in the form only, correct? It doesn't list different things to agree or deny. So, I'm just gonna choose D I deny that I am responsible at all, it I don't know what to put for an explanation. ????

Do I also send a copy of this to Midland's lawyers? Can I get the clerk to stamp it & make me 2 copies...one for myself with the stamp & one with the stamp to mail to Midland's lawyers?

After I get this submitted, is it ok to go ahead & send debt validation letters to Midland & this law firm (that seems to be a collection agency also)?

1. Once you are served and in a lawsuit it is too late to DV.

2. I would make copies, 3 of them and take all three to the clerk to have them stamped .... File one, send one to the atty. CMRRR... and keep one.

3. As to denying.... and I do hope someone else with small claims experience
chimes in here or from your state.... Or check your rules of Civil Procedure.

It has numbered paragraphs.

If you are using the form they sent to you I would write on the same form.

If you want to write your own answer on a separate paper you can, but I do not think that is needed in small claims. The rules of Civil Procedure, which can be Googled should say.

I would write, under paragraph #1.

Paragraph #1  Admitted.

Then I would write an all inclusive denial. And a very simple statement.

Paragraph(s) #2 thru #4

Paragraph(s) #2 thru #4 Denied: Defendant is without sufficient knowledge to
admit or deny the allegations in Paragraph(s) #2 thru #4

As to the 4 options to select from;

D, is the logical answer I would select.

I then would comment in the space provided.

1. Plaintiff lacks standing.

2. Plaintiff's claim is Time Barred by AL Code Sec. 6-2-37 covering openended         .   accounts. Commencement of action, 3-years:

    Plaintiff's claim is further Time Barred by their own agreement specifying DE
    as the Choice of Law state under DE Title 10 8106. Actions subject to 3 year
    limitation.

3. Improper venue. Defendant elects private contractual arbitration to handle
any disputes and that removes this from this court.
_____________________________________

Now.... this is what I would do for my home state.

#3 I would use only if I wanted to go the private arb. route if the SOL
does not make it.

As I said, I hope someone from yours will come on and tell me if I am all wet.


« Last Edit: April 05, 2013 02:16:23 AM by duh »
I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

Public Enemy

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #8 on: April 05, 2013 02:28:07 AM »
Since this is small claims court some states allow you to take it to a higher court "de novo" for a new trial if you happen to lose the case.

I have no idea if Alabama has that option or not but you may want to research it or ask someone at the court.

trueq

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #9 on: April 05, 2013 02:42:47 AM »
If your SOL MTD does not work.

5 words beats Midland 100% of time:

"I motion to compel arbitration"
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

ICanDoThis

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #10 on: April 05, 2013 03:23:18 AM »
Ok, I'm about to read more of the Civil Procedure (don't really understand some of it).

So, if it's past SOL, can't file a MTD?

I've read a little about Arbitration & how it is great ammo against some of these JDBs, but I'm not knowledgeable enough about it at this point & I've got to get this answer in.

I'm not sure if the credit card agreement mentioned Arbitration or not. I'm thinking it probably did. The account was opened in 2005 & it was the US Airways BOA card. I don't want to cause myself more trouble by not knowing enough about it, but if it will make Midland fold, I'm all for it.

So, just to keep them from getting a default judgment at this time, is it not as simple as just checking the deny on the form & in the brief explanation space just put something about no knowledge of any account with plaintiff? Or without sufficient knowledge to admit or deny plaintiff's complaint?

Then, couldn't I file things with the court (& send CMRRR to law office) after the answer like the SOL defense & such? I mean, is it necessary to include all of that from the beginning with the answer?

I'm just really confused. I'm going to read what I can understand of the Rules of Civil Procedure now.

duh

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #11 on: April 05, 2013 01:28:18 PM »
Ok, I'm about to read more of the Civil Procedure (don't really understand some of it).

So, if it's past SOL, can't file a MTD?

I've read a little about Arbitration & how it is great ammo against some of these JDBs, but I'm not knowledgeable enough about it at this point & I've got to get this answer in.

I'm not sure if the credit card agreement mentioned Arbitration or not. I'm thinking it probably did. The account was opened in 2005 & it was the US Airways BOA card. I don't want to cause myself more trouble by not knowing enough about it, but if it will make Midland fold, I'm all for it.

So, just to keep them from getting a default judgment at this time, is it not as simple as just checking the deny on the form & in the brief explanation space just put something about no knowledge of any account with plaintiff? Or without sufficient knowledge to admit or deny plaintiff's complaint?

Then, couldn't I file things with the court (& send CMRRR to law office) after the answer like the SOL defense & such? I mean, is it necessary to include all of that from the beginning with the answer?

I'm just really confused. I'm going to read what I can understand of the Rules of Civil Procedure now.

Sending you a PM with a great link that explains it soup to nuts.
I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

MrSev

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #12 on: April 05, 2013 02:52:06 PM »
The Answer will prevent a Default judgment in their favor, but not enough to prevent a later Summary judgment. Filing the Answer does buy you some time, though, except if your state considers filing an Answer a waiver of your arbitration rights.

The wise thing to do is complete your Answer, and have it ready to file before the deadline. Research the arbitration requirements of your state before you file the Answer though, if arb is the route you want to go. If you find that filing the Answer would waive your arb right, prepare a Motion to Compel Arbitration too, and file that first, asking for a hearing on that motion ASAP.

If there is no waiver, or you arent going for Arb, file your Answer before the deadline. Not sure why they would claim Breach of Contract AND Account Stated, since they seem to be mutually exclusive. You never entered into a Contract with Midland, nor opened an Account with them, so you could Deny and demand Plaintiff provide strict proof. (this is where JDBs usually fail, because of the chain of assignment--read the stickies in the Flyingifr's Method forum)

ICanDoThis

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #13 on: April 09, 2013 03:37:08 PM »
Ok, I've read so much & so confused!! I called the court the other day when I was planning on turning in the answer, but I have a few more days....gonna get it in this week.

Between rules of Civil Procedure (which there seems to be a little bit different ones for small claims....confusing ????) & Arbitration stuff (way confused on), I'm so bad confused.

I'm even confused on what format/order to answer these things.

On the 1st page, which is the SUMMONS, it states "The Statement of Cliam (Complaint) which is attached to summons is important and you must take immediate action to protect your rights. You or your attorney are required to hand deliver a copy of a written answer either admitting or denying each allegation in the Statement of Claim (Complaint) o the plaintiff's attorney. Fill out the enclosed answer form and deliver or mail it to the court clerk."

On this STATEMENT OF CLAIM (Complaint) General close to the bottom it says
            COMPLAINT
1. I claim the defendant owes the plaintiff the sum of $x,xxx because:
    1. I claim the defendant owes the plaintiff the sum of $X,XXX because:
        I. Defendant owes plaintiff $X,XXX due on ACCOUNT STATED between the Plaintiff and Defendant
        II. Defendant owes Plaintiff $X,XXX due BY CONTRACT between the Plaintiff and Defendant

2. Plaintiff also claims ....court costs in the sum of....

Then, the next two pages are the ones that start out "IN THE SMALL CLAIMS COURT

MIDLAND FUNDING, Plaintiff
v.
XXXX,
Defendant

COMPLAINT
Plaintiff, Midland Funding, claims of the Defendant $X,XXX plus costs of this action. As grounds therefore the Plaintiff shows as follows:

SERVICE
1.(Address)

VENUE
2. ...Proper county...

FACTS
3. Midland successor in interest to BofA, assigned all right, title & interest in the account & it's records for below identified account which records have been incorporated into the business records of Midland. Assignor provided a credit card with account number ending in -XXXX to Defendant in response to an application for credit made on or about XX/XX/05.

4. The Defendant used the card to purchase goods and services....

5. The Defendant defaulted under the agreement...

6. Assignor mailed regular statements...

7. The account was charged off to loss on or about XX/XX/08.

8.  Through its undersigned attorney, Midland has demanded payment from Defendant, but Defendant have not satisfied such demand.

9. Midland has performed all conditions precedent to the filing of this action, or all such conditions precedent have occurred.

COUNT ONE - BREACH OF CONTRACT

10. The parties had an agreement, Assignor agreed to pay merchants or vendors....as authorized nder the credit agreement.....The Defendant were obligated under the terms of the credit agreement to repay...

11. The Defendant breached the agreement by failing to remit payment when due...

COUNT TWO - ACCOUNT STATED

12. In the alternative and without waiving, and incorporating by reference the amounts claimed, Midland asserts that Defendants' use of credit card to purchase goods and services represent a periodic account, for which Assignor rendered monthly statements to Defendants.

13. Plaintiff reserves the right to assert other claims and/or add other parties as may be later discovered during the course of the proceeding.

Then, it has the DEFENDANT's ANSWER form.

From my understanding, I send the STATEMENT OF CLAIM to the plaintiff's attorney & the DEFENDANT'S ANSWER FORM to the court...correct?

Where does that other page come in? How do I format to answer?

MrSev

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Re: Being Sued by Midland - SOL - NEED HELP
« Reply #14 on: April 09, 2013 09:03:34 PM »
The rule of thumb is that anything that is sent to the court must be sent to the opposing attorney as well, and you sign & file a "Certificate of Service" with your Answer, which basically says you swear you sent the filing to the opposing counsel. Do these things CMRRR, so you can produce the receipt as proof if they ever claim you didn't send them anything.

The JDB's weak link is almost always proving the assignment from the credit card company to them. If they cannot prove they are the legal assignee, they have no "standing" to sue you over the credit card.

 

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