Midland Funding suing my wife

[gator944]

First of all, I'm new here and to these kind of issues, so please forgive my lack of abbreviations and accronyms.

We live in Polk County, Florida. My wife answered the door to a Process Server looking for her by her maiden name. She paniced and told them there was no one there by that name. When asked her name she gave them her married name, and they left without serving her.

I then went to the Polk County Clerk of Courts web site and verified that there is a case against her filed by a lawyer representing Midland Funding. It is scheduled for 1/18/08. She went to the courthouse the next day and picked of copies of the case documents. They consist of the actual filing papers with a copy of an affidavit signed by a Midland employee. My wife asked the Clerk if, by getting copies of the documents, this constituted being served. The Clerk advised it did not, and that she would still have to be served personally for the case to proceed according to our state/county laws.

The affidavit (only evidence exhibit) states that my wife entered into arrangements with Midland and she defaulted on them. She has never, at any time been contacted by, or spoken with anyone from Midland Funding. The suit also states that the original creditor was Aspire. When reviewing her credit report it does show Midland Funding with a $3500.00 balance, by no mention of Aspire.

This is where I can use everyone's wonderful advice. Whether she is served or not, we plan to be in the courtroom. I am worried that when her case is called, the lawyer will say she has been served.

I was thinking of counter-suing Midland and the Attorney for using the court system for extorsion, given there is no collaborating evidence other than a Midland employee's say so. I'd like to name the Attorney in the suit since he is the one doing the leg work.

I have other info I can share, but this post is already too long. If anyone can offer advice, I can answer any additional questions. I have done a ton of research.

[myscoresawful]

First of all, I'm new here and to these kind of issues, so please forgive my lack of abbreviations and accronyms.

We live in Polk County, Florida. My wife answered the door to a Process Server looking for her by her maiden name. She paniced and told them there was no one there by that name. When asked her name she gave them her married name, and they left without serving her.

I then went to the Polk County Clerk of Courts web site and verified that there is a case against her filed by a lawyer representing Midland Funding. It is scheduled for 1/18/08. She went to the courthouse the next day and picked of copies of the case documents. They consist of the actual filing papers with a copy of an affidavit signed by a Midland employee. My wife asked the Clerk if, by getting copies of the documents, this constituted being served. The Clerk advised it did not, and that she would still have to be served personally for the case to proceed according to our state/county laws.

The affidavit (only evidence exhibit) states that my wife entered into arrangements with Midland and she defaulted on them. She has never, at any time been contacted by, or spoken with anyone from Midland Funding. The suit also states that the original creditor was Aspire. When reviewing her credit report it does show Midland Funding with a $3500.00 balance, by no mention of Aspire.

This is where I can use everyone's wonderful advice. Whether she is served or not, we plan to be in the courtroom. I am worried that when her case is called, the lawyer will say she has been served.

I was thinking of counter-suing Midland and the Attorney for using the court system for extorsion, given there is no collaborating evidence other than a Midland employee's say so. I'd like to name the Attorney in the suit since he is the one doing the leg work.

I have other info I can share, but this post is already too long. If anyone can offer advice, I can answer any additional questions. I have done a ton of research.

Hi there and welcome!

First of all, it might help a little if we knew more about this account? If there is a debt that could be your wifes, what is the date of the last payment she made on the debt? I ask this because it the SOL (statue of limitations) could be expired and by showing up and pointing this out in court, the judge would dismiss the case and they wouldn't get a judgement against your wife.

It's good that you will be in court, because otherwise, even if the SOL is expired, they would automatically win by default if you did not appear.

Since this is in your wife's maiden name, it could be that the only info they had previously was an old address or contact info and maybe they did try and contact her previously, this is something that would be difficult for you to prove in court since all they need is to have a "system" in place that would allow them to send her generated letters, etc.

[gator944]

She did have an Aspire Visa account, and her last payment was made mid-2005. She did let it go to being charged off by them. Therefore, the SOL has not expired. If the attorney had more collaborating evidence, wouldn't he have file it with his motion? From what I've found online, more times than not, Midland does not have the proper debt validation documents. They usually go to court with a debtors name, account number and an affidavit from their employee.

This seems to also fit the profile of a road show attorney filing many cases simultaneously in different county courthouses. This guy has only been a member of the Florida Bar since mid 2005.

Of course, she should have paid it with Aspire, but a dismissal would certain be great. While there is a Midland Funding entry for this account on her credit report, the credit report has no reference to Aspire. Could we use that in our defense?

[unusualsuspect]

FL residents can correct me if I'm wrong...If your wife is not served, the case cannot go on. Midland would have to ask for a continuance until she does get served before the next hearing date.

[bubbaboo]

In Florida they can serve her by publication after they are unsuccessful in trying to find her at her last known address.

[Bodhi]

Midland Funding, LLC is a subsidiary of Midland Credit Management out of San Diego.

I would look deeply into this and find out whether:

a: they can legally file suit against you in Florida. (IE. are they registered as a CA in the State of Florida (if Florida requires this))

b: If they have never contacted you, request that they validate the debt. Midland is notorious for not having proper paperwork.

[gator944]

Two excellent points. She has never been contacted by Midland, but their affidavit filed as an exhibit references payment arrangements broken. I also can find NO reference of them holding any kind of license in Florida.

If they have purchased an old debt, would they still be considered a Collection Agency or are they now the Creditor? I believe they are still a CA, but some input from you guys would great.

Many thanks for your help with our issues.

[unusualsuspect]

As far as being legally able, all Midland has to do is retain a FL attorney to file suit.

The affidavit can be considered heresay if you argue it right...

And you won't know if they purchased the debt until discovery.

[jetscarbie]

Make sure you read all of this plus read the cusomer comments posted also.

http://budhibbs.com/debtcollectorpages/midland_credit_management.htm