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I'd love some help from you guys. I got a summons and complaint 7 days ago. I've literally been doing nothing but researching for the past week. Also, I applied for legal aid, but have little hope they will help. They aren't even slated to contact me until next week. I'm going to be honest with you guys. I need a hand to hold. I have no idea what I'm supposed to do and it feels like a bottomless pit. I have a couple weeks until the deadline. So here are the facts, thus far: 1. I received a summons and complaint between my screen door and main door -along with the business card of the process server- last Monday. I plan to draft a motion to dismiss for insufficiency of service of process under Title 12 of the Oklahoma Statutes § 12-2012(b)(5) and § 12-2004. I've drafted a motion for this, along with a very basic Memorandum and Points of Authority outlining and quoting the above laws (basically stating that service wasn't valid because it wasn't given to me face to face. I plan to also write an affidavit and add it. I know that I have to send a copy of this to the other side and add a section that certifies that I sent it. QUESTION 1: Do I need to file an Notice of Appearance or a statement that I am representing myself Pro Per/Se? DISCUSSION: It might seem a little petty, but I feel like it is my right to be processed competently, and if this is the current local practice, it needs to be nipped in the bud. Also, I could use the extra time to respond seeing as how I am not a legal expert and it takes time to learn this stuff. In fact, I thought about motioning "TO DISMISS PURSUANT TO RULE 12(B)(5) FOR INSUFFICIENCY OF PROCESS OR IN THE ALTERNATIVE, EXTENDED TIME TO ANSWER OR RESPOND TO COMPLAINT." But I don't know if that second ask will make me waive my right to other defenses that I might want to keep. 2. They sent an "Affidavit of Indebtedness" --the official complaint calls it an 'Affidavit of Account' and I would love to point out that distinction if its ever useful to me, but i figure its just a small error and oversight. Still, I have an English degree and we are only second to lawyers about pointing out this sort of error- So the Affidavit is actually pretty much blubber and hearsay. No surprise there. In fact, I pretty much found the exact text of this affidavit online. I'm guessing it's an auto-form document. So, I'd like to motion to strike it from evidence or at least take all the teeth out of it because of the hearsay. 3. The complaint states that (specific info redacted) "1. BUBBA GUMP CREDITOR provided credit to the defendant on account number BUNCH-A-NUMBERS. Defendant defaulted on the obligation. The account has been assigned to Plaintiff. 2. Defendant owes Plaintiff $3333.33. An Affidavit of Account is attached hereto and incorporated by reference." 4. The Affidavit of Indebtedness (County of Stearns, Minnesota -- where all the women are strong, all the men are good looking, and all the children are above average, no doubt) states: (SPECIFIC INFO REDACTED) “PATSY MIDLAND, whose business address is 16 McLeland Road Suite 101, St. Cloud, MN 56303, certifies and says: 1. I am employed as a Legal Specialist and have access to pertinent account record for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on Plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Defendant’s BUBBA GUMP account XXXXXXXXX0000 (MCM Number 0000000) (hereinafter “the account”). I have access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on Plaintiff’s behalf. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by MCM in connection with servicing the account since the date the account was purchased by Plaintiff. 2. I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. 3. MCM’s records show that Defendant(s) owed a balance of $3333.33 as of 2017-08-21. 4. On or about 2016-11-16, MIDLAND FUNDING LLC became the successor in interest to this account. 5. Based on my review of MCM’s business records, 1) Defendant(s) opened the BUBBA GUMP CREDIT account on 2013-01-11; 2) the last payment posted to the account on 2016-03-22; and 3) the account was charged off on 2016-10-23. 6. On or about 2016-10-23, the account was sold from BUBBA GUMP CREDIT to ANOTHER CREDIT SERVICE L.L.C.. The account was then sold to the following debt buyers in order of occurrence on or about: 1. 2016-11-16, MIDLAND FUNDING LLC 7. If called to testify as a witness thereon, I could and would competently testify as to all the facts stated herein. I certify under penalty of perjury that the foregoing statements are true and correct.” 5. This is the only paperwork I have received. And I see a dozen other things I can possibly do. For example, I am a member of a federally recognized tribe living within that tribe’s jurisdiction on property owned by said tribe, in a house owned and leased by said tribe. I even work for said tribe. Technically, I could claim that the court lacks jurisdiction. But, then, I would have to do more research on tribal law (which probably mirrors state and federal law). I would gain no advantage other than time, and possibly lose several advantages. Something else I have been toying with (but admit I don’t know if it applies) is filing to dismiss for failure to state a claim based on threadbare recital/mere conclusory allegations, based on Twombly & Iqbal. Still another thing I could do is motion for the production of documents. Or send a letter of Debt Verification. Not to mention other Affirmative Defenses like Failure to Consider etc etc etc. But I don’t want to be frivolous about this. So, QUESTION 2: Do I roll some or all of these things in a big motion and slap them with it? Or do I motion the insufficient service first, and strategically collate a few of the other issues I can raise? Mainly, I fear waiving my rights to certain defenses if I do things in the wrong order. I want to bring up the insufficient service. I want to strike the affidavit as hearsay. I want to force them to produce any documents they have (And I’d just love to send THEM interrogatory during discovery.) But, I must say, my head is spinning and I have no idea where to start. Someone, please pull me to earth and pave the way. I can do the work and research, but the direction is lacking. Thanks for all the help, guys.
I received a complaing from Midland by regular mail. I talked to a lawyer and he said it may be better to settle- debt us inder 3k I still have time to answer the complaint, but I sent a debt validation letter and they responded right away with a statement copy form original bank and bill of sale from original bank to them, Midland is the 2nd JDB, previous collector was Oliphant. Wells Fargo- original creditor and Oliphant reported on credit , now Midland reported with higher figure( fees interest I assume) I never received in writing anything before from therm ever, I have robo calls from an 866 number with all hangups, no voice mails that I now see is their phone number on private voice mail account that I have saved and was a buisness telephone line used . What should I do? Fight or settle?I dont really have the money even for payments and I hear even settle for less they may not be able to remove from credit report as the credit reporting agencies do not like that pay for removal. Help! Also one thing I know is that this was reported to my credit report before they sent the summoms compliant and they never validated the debt prior to sending me a complaint. Not till I received the complaint, I then sent a validation letter. I received a reply to a DV letter I sent when I got a summons from Midland- They sent me back a copy of a bill of sale with their signature and wells fargo EVP of operations signature on page 2, on the 1st page it says Bill of Sale-MY NAME OR ACCNT NUMBER IS NOT ON THIS BILL OFSALE, They blocked out in black Outstanding Balance of Accounts and Number of Accounts. Another doc they sent me was a statement with my name and address from a year ago or a bit more and attached to that important info about your account. Are these docs from them sufficient to make them valid on their side?
PLEASE SEE ATTACHED PDF, AND THANK YOU!! LVNV_Civil_Summons_NM.pdf I am being sued by LVNV Funding in Bernalillo County, NM. I need to file a response this week (delayed by printer, scanner issues, sorry!). Do I send this by certified mail to LVNV's attorneys? And then file with the clerk, or vice versa? Others' posts and Q&A are really helpful. If I hand-type a response, do I need to address every allegation? There are a few things I would like to draw the Judge's attention to: Can anyone tell me if this attorney violated NM Stat § 61-18A-25 (2016) by producing an invoice with his own letterhead? >>>> No person, who is not a duly licensed and qualified collection agency, shall print, publish or otherwise prepare for distribution any system of collection letters, demand forms or other printed matter upon his stationery or upon stationery upon which the said person's name appears in such a manner as to indicate that a demand is being made by such person for the payment of any sums due or asserted to be due, where such forms containing such message are to be sold or furnished to anyone by such other person at any address different from the address of the person issuing such system of collection letters, demand forms or other printed material. <<<< There are other discrepancies in their claim vs. "the 2017 contract." First, my contract would have been in 2014. Second, this 2014 contract reads the case would be settled by an arbitrator, not a Metropolitan Court judge. Lastly, the trail of receipts does not name me or the original lender. THANK YOU FOR YOUR HELP AND ANY INSIGHTS! I am not a lawyer, but I have an eagle eye for things that don't make sense. Thank you so much for your time! PDF ATTACHED: LVNV_Civil_Summons_NM.pdf 1. Who is the named plaintiff in the suit? > LVNV FUNDING LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) > MACHOL AND JOHANNESS LLLP 3. How much are you being sued for? > $1097.49 + ATTORNEY FEES 4. Who is the original creditor? > CREDIT ONE BANK, N.A. 5. How do you know you are being sued? > RECEIVED SUMMONS AND COMPLAINT 6. How were you served? > IN PERSON BY PROCESS SERVER 7. Was the service legal as required by your state? > AS FAR AS I KNOW. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE THAT I KNOW OF. NEVER HEARD OF LVNV BEFORE. 9. What state and county do you live in? > BERNALILLO COUNTY, NM 10. When is the last time you paid on this account? 2015 or 2016 11. What is the SOL on the debt? 4 YEARS? 6 YEARS? Unsure 12. What is the status of your case? SUIT SERVED 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO 14. Did you request debt validation before the suit was filed? NO 15. How long do you have to respond to the suit? 20 DAYS, NOW ENTERING 2nd WEEK - SORRY! 16. What evidence did they send with the summons? BILL OF SALE AND ASSIGNMENT; REDACTED XLS SPREADSHEET, COPY of 2017 (vs. 2014) CONTRACT redacted.pdf