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Midland 10 Day Summons


CityGirl70
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Hi Everyone :) I did a lot of reading on here and am a bit confused.

This is what I got hand delivered to my door.

10 day Summons

Bennett,Deloney, & Noyes, P.C. is the Attorney for Midland Credit Management.

I am required to file with the clerk of the West Jordan, Utah court an answer in writing to a complaint to be filed in the above-entitled case and mail a copy of answer to the attorney within 20 days after service of summons on me (July 28th, 06)

Ya da ya da you know the rest of this page. On to the next part....

Jurisdiction & Venue

1. Plantiff at all times relevant, is the owner of the debt sued upon herein and is authorized to do business in the State of Utah.

2. Defendant is subject to this Court's jurisdiction

3. ya da ya da

4. ya da ya da

5. Defendant accepted and used a CC issued by Citibank

6. Upon use of the CC by the defendant, defendant agreed to the terms and conditions of the Citibank Card Agreement.

7. Pursuant to the terms of the Contract, Defendant promised to make monthly payments on the balanced incurred. Defendant used the CC and therefore became bound by the terms of the Contract.

8. The Contract also requires Defendant to pay interest at the Annual Percentage Rate of 19.24%

10. ya da ya da

11. ya da ya da

12. Plantiff wants Immediate Payment

Prayer

a) Outstanding principal amount and fees in the amount of 3478.16

b)Interest pursuant to UCA 15-1-1

c)all court costs incurred as a result of this action pusuant to Rule 54 of URCP

d)Reasonable attorney fees in the amount of 550.00 pusuant to rule 73

--------------------------------------------------------------------------

I didnt receive any previous notices that I am aware of prior to the Summons, but I could have just thrown it away.

I looked up license for MCM in Utah - Its good :roll:

I called the Atty office and she gave me the CC # and said last payment made was July 2001, but only after I gave her my phone #

I called Citi - They told me the account was part of an Asset Sale to NCO, but couldnt give me any other info because they didnt have it, not even a date of Sale.

I called NCO she told me the account was forwarded to MCM in 2003, but couldnt tell me exactly what forwarded meant. She kindly gave me her extension # and said I should call MCM and see if they will send the account back to NCO at my request ..hahaha (I smiled over her greed)

Questions?????

1. I filled out two DV letters for MCM & their Atty, should I bother sending them??

2. My next step should be the Affirmative Defenses sent to MCM, Atty, & Courthouse, Is this correct?

3. Then C&D regarding SOL (Utah says 4yrs for open account)

4. Then What-- Dismissal of Summary?? Dismissal of Complaint??

Am I going in the right direction :private:

PLEASE ADVISE --

Also, Do you see any violations ?

TYIA

Sorry so LONGGGGGG

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Frankly, you need to consider getting professional help here (an attorney)...unless you feel qualified to defend yourself and are well versed in the law in your state then I'd at least consult with an attorney.

People can handle cases themselves but unless you are either lucky or have trained yourself well, it will be a mismatch (in their favor)...it's a bit like fighting a war when all you have is a handgun and your enemy has a nuke.

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Guest E. Normis Debtor

You should consider consulting an attorney as previously advised.

Send the DV anyway. If their initial contact was in fact a summons, they must suspend litigation upon receipt of your request until they mail you verification.

A credit card, other than a merchant's card, usually falls under a written agreement, not an open account. Double check your SOL.

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Bummer...Very Disappointing :(

They offered a 2430.00 settlement but I cant afford it. They wanted it in before the summons is up. Their payment plan is 412.00 a month, thats way to high for me also. I could afford a 50.00 payment...but with the interest rate at 19.24% I would never get it paid off!

Can they throw a lien on my house?

SoL for written is 6yrs here, so if what the lady said is true (last payment 7/2001) then that wont work.

How do I know for sure in my state if CC is a written?

Please advise.

Thank You,

Brandie

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Firstly, I'm really sorry for what your going through. Apparently they're trying to get a judgment and that can be a difficult thing to go through, so I empathize. My DH may be in your shoes soon actually.

I agree, you will want to consult w/ an attorney. He/she can really sniff out all the particuliars and let you know what all is at play. You have the right to know your rights. They have the right to bring a suit against you, you have the right to defend yourself.

On the other hand, "open ended" accts are accounts with "varying" balances, and it does say-"like credit cards" so it's my understanding that this is what yours would be (again, check w/ YOUR state to see what it's considered) -and if is considered open ended, your SOL was at 4 yrs...so, 2005? But I can see how "written contract" would come into play to and be a possibility.

Again-this depends on what YOUR state deems as the legal term for this debt. You can contact an attorney (preferably a BK atty or what not) and ask point blank, for the purposes of SOL what is THIS debt considered? Typically, you'll find somebody willing to answer that for free.

Also, I find it odd that they'd offer to settle before going to court. I smell a loop hole of some kind--maybe their paper trail is lacking?

Given the age of this debt, I'd go ahead and send them an immediate DV as previously suggested. Given the age, it's a fair assumption that it's at least POSSIBLE that this may not be yours (stay with me here) therefore naturally, before you communicate with them on this OLD debt, it's understandable you'd need to see some paperwork indicating you owe this debt. Also, visit the courthouse to see what all they've filed with their request. Go to the clerks offices and ask to see the file-make sure to take the case number with you. *I always recommend this one because sometimes people discover that, in fact, NO case was ever filed to begin with and the forms sent/delivered was merely a scare tactic. In your case, I know you apparently spoke w/ someone at the court--so obviously they filed, but still. If you can see what they've filed, you'll have a better idea what kind of case they have against you.

Another "oddity" if you will is that the "last payment was 07/2001" and when were you served? LOL--5 yrs almost to the DAY?

Can they put a lien on your home? I'm not sure. I do believe they'd have to win their judgment first.

At any rate, it couldn't hurt to consult an attorney. Best wishes and I do hope this goes well, keep us posted.

Elyse

P.S. Be careful about discussing this case with them. Did they send you an offer to settle in writing? Either way, avoid speaking w/ them by phone. When you send the DV, include a partial C&D request that they NOT contact you by phone.

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Thank you for your input, It is greatly appreciated

I found this info which should be useful in my journey.

Small Claims Mediation: Free mediation offered during small claims court in Salt Lake County by trained volunteer mediators in collaboration with Utah Dispute Resolution. Call (801) 532-4841 for more information.

I will be calling them tomorrow to see if they have any advice for me.

I also found this , which I will be going through shortly to see if theres any forms/information I need/can use.

Online Court Assistance Program

The Utah Online Court Assistance Program (OCAP) is the official State of Utah website for assistance in preparing court documents if you are not able to have an attorney draft them for you. Documents can be prepared for divorce, landlord tenant, guardianship of a minor, or protective orders. Not all documents required for all types of court cases can be prepared using these programs so please read the description of each document preparation program carefully to be sure it addresses your needs. You may use this program for free. If you file documents created by the program with the court, a $20.00 fee in addition to any court filing fees will be charged at that time. This program is a service of the Utah Courts and State Legislature. The program is found at www.utcourts.gov/ocap.

I also filled out my Lawyer needs here and hope for a response within the next day or two - it said 1-3 days. I got my fingers crossed for sooner than 3 days.

Utah State Bar Referral Services

The Utah State Bar in conjunction with LegalMatch provides a free online service that can help you find an attorney in Utah. By providing information about you, your case, requested attorney experience and more, the service will “match” you with participating attorneys. Although the referral service is free, the lawyer will charge you for his/her services. This service is found at http://utahbar.legalmatch.com.

I havent found any information on Open-end /Written accounts for Utah but I will ask tomorrow when I call around.

I am going to go to the court house on Friday to give my Answer w/defenses and I will check like you said what they've filed.

:confused: When you say "check what they filed" what exactly are you referring to? Do you mean evidence to support their claim?

I havent spoken with them again, the first and only time I believe it was a secretary at the Atty office, but unsure.

I gave her an old # for the info so I dont think they will be calling

TYIA for all your replies

Sincerely,

Brandie

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I just realized when I read over the Summons again, that the Complaint has not actually been filed but will be within 10 days of the Summons.

I dont think I will give my answer until the Complaint has actually been filed. Is this wise ?

After it has been filed I can pick up a copy at the courthouse to see what is on it.

:confused: Should I file my Answer at the same time I pick up a copy of the Complaint, or should I pick up the Complaint read it over then base my Answer on my findings? Do you think it will basically say the same thing my Summons say, or will it have extra info - like photo copies , who they obtained the debt from , how they obtained it, when they obtained it, ect..?

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Guest E. Normis Debtor

Don't confuse an "open-end" account with an "open account", they are not the same thing. The first denotes a payment method, the latter a type of agreement.

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Thank you for the correction in terms :)

I found this for

Utah Statue of Limitations

Utah Code 78-12-25. Within four years.

An action may be brought within four years:

(1) upon a contract, obligation, or liability not founded upon an

instrument in writing; also on an open account for goods, wares, and

merchandise, and for any article charged on a store account; also on an

open account for work, labor or services rendered, or materials furnished;

provided, that action in all of the foregoing cases may be commenced at

any time within four years after the last charge is made or the last payment

is received.

Amended by Chapter 79, 1996 General Session

Definition for Instrument in Writing (LAW) is a little confusing, but sounds like it has to be viewed by a witness , or some sort of authority when signed??? :confused: Please advise if you know.

TYIA :)

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Hi Again :)++

In the complaint filed by the Attorneys for Midland Credit Management Section II #9 it says :

The Contract states:

"If we refer the collection of your account to an attorney or employ an attorney with regard to recovery of money that you owe us, we may charge you reasonable attorney fees and Court costs or other collection costs as permitted by law and actually incurred by us."

Recap -- Citibank said the account was sold in an Asset sale to NCO date unknown, any other information also unknown.

NCO in turn told me they forwarded the account to Midland (no affiliation to NCO) in 2003, and did not have any other information.

Midland attorneys office told me last payment was made in July 2001.

Question

Since the original contract was signed to Citibank, can Midland legally hold me to that contract, even though it was never referred to an attorney or sent to collections by Citibank, as contract statement requires , but instead sold in an Asset sale to NCO???

It also states "actually incurred by us"

Please Advise

TYIA ,

Brandie

P.S. I am writing up my Answer/Affirmative Defenses tomorrow and sending it off as soon as Im done (hopefully tomorrow also)

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  • 4 weeks later...

I sent MCM and their Atty -

Certificate of Service,

DV (even though told it was kind of pointless) requesting usual info.

Answer, Affirmative Defenses, Counterclaims -

I. ANSWER

Defendant answers the complaint as follows:

Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies the allegations contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

.

II. AFFIRMATIVE DEFENSES

Defendant(s) other defenses are:

1. Plaintiff’s claim is time-barred by the statute of limitations. Utah Code 78-12-25

2. Plaintiff purchased the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self; therefore Plaintiff is barred from seeking relief for damages.

3. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

5. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original

creditor received other compensation in the form of monies and/or credits.

6. Even if it is found defendant owes this alleged debt, the plaintiff is not entitled to interest at 19.24% or to attorneys fees and to award same would unjustly enrich plaintiff.

7. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

8. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

III. COUNTERCLAIMS

Wherefore, Defendant asks the courts for an Order dismissing the Complaint.

Dated this 8th day of August, 2006

REPLY to DV- Atty sent copy of Letters showing they tried to contact me in regards to the account with dates. Statements asking for payment and saying they purchased the account and own it, original creditors name, original balance, interest rate, ect. They also sent a barely legible copy of citibank card agreement that was faxed from NCO dated 01/2004 (no signature) They did not send any copies of CC statements from OC. They wrote, " Iam providing these to you as a means of informal discovery in an attempt to settle this matter outside of the courtroom. Upon receipt of this letter ad the attched docs. please feel free to contact this office to discuss settlement of this matter.

A couple days later I received Request for Pretrial Conference (no date set)

Do I need to file any Motions or Discovery- Request for Information before Pretrial?

Did I screw up on my Answer?

Please Advise :confused: Im confused.

I am not currently employed and would like proof that this is even mine. I dont have money for an atty, so any advice is appreciated.

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So they have nothing with your signature and no proof that they have given you that they bought the debt.

You're doing ok so far.... just take a deep breath and read all you can here on the boards.

So far if you have to go in front of a judge you say all the things you said in your affirmative defenses.

No contract

no proof they bought the debt... etc.

Usually most JDBs fold when you throw stuff like this at them.

Some dont

Good luck!

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Good job on your answer/counterclaim. If you signed the contract while you were living in Utah, this debt is outside of SOL based on the 7/01 last payment date; I'm surprised things have gone this far. You should contact the attys for Midland and remind them it's outside of SOL, and let them know you will hire an atty and amend your counterclaim to include significant damages unless they 1) withdraw the suit 2) delete the tradeline from you credit reports [if it's on there] and 3) compensate you $1,000 for violation of the FDCPA.

---I'M NOT AN ATTY, ETC. ETC.---

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  • 4 weeks later...

I received a letter 2 weeks ago from Equifax in regards to my dispute. Their answer was : We have researched the credit account. Account# - Citibank 850440* The results are: This item has been deleted from the credit file. Same answer for NCO :)

The other two reporting agencies have removed them off my credit report also. 8]

:!: Four days after I recieved the letter from Equifax I recieved one from Midland attorneys requesting - Interrogatories, Production of Documents and Request for Admission.

I will be answering these within the next few days and post my reply here for your opinions. The questions seem a bit silly, since I dont have anything to show them about this account. They obviously dont have much, if anything at all, by the looks of the questions.

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First off them threatening to file a complaint sounds like overshadowing? especially if this was the CA first contact, help me out here people

second you do need an atty if the complaint gets filed and the summons actually served

if they are offering a settlement now then they certainly aren't assured of a judgement or they'd sit tight and wait.

send the DV right away since they sent you a dunning letter (that's what it sounds like) threatening to sue then a DV is still valid since they haven't yet filed the complaint. send it CMRRR!

If they go ahead and file, in your answer to the complaint ask first for a motion to dismiss based on the plaintiff being in violation of the FDCPA, then motion for continuance based on that, you may also file a Counter claim based on their violation(s) of the FDCPA. it goes on and on. actually the counter claim should probably be first,

you will need a lawyer for this, but you need to do as much research as possible yourself

as soon as you've hired an atty things will change the Plaintiff won't move then eventually your atty may get a call to settle (that's up to you) with a fairly strong counter claim if you insist on trial rather than risk losing hopefully you'll end up as I did, case dismissed with prejudice.

remember a personal injury lawyer isn't what you want you need a consumer debt atty.

Good luck

Btw the counter claim based on their violations can be used against any subsequent CA that brings this up if the CA just simply disappears and sells the debt. but if you get the dismissal with prejudice then the debt goes away for good

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