Just served by Midland Funding LLC

[nautilus571]

Hello,

I have been reading through the many posts regarding Midland Funding LLC. The reason being, my Wife was just served. The document states I have 20 days from service to respond. What is my first step? The document is very ambiguous and suggests I retain counsel. NOT! I would like to do this on my own just as many of you have. I am on a short lead here so any help you can provide would be much appreciated. What is my first step in response to the complaint?

Thanks in advance for your insight,

Mike

[nautilus571]

COMPLAINT

AND NOW comes the Plaintiff by and through its attorneys and the law firm

of Mann Bracken LLP and files this Complaint and in support avers as follows

1 Plaintiff MIDLAND FUNDING LLC

ASSIGNEE OF BENEFICIAL

located at 8875 AERO DRIVE

SAN DIEGO CA 92123

2 Defendants *******

is/are adult individual(s) with last known address of

*****

MECHANICSBURG PA 137601520

COUNTY OF CUMBERLAND

3 It is averred that Dsefendant was issued an open end credit card

account

4 At all relevant times material hereto Defendant has used said

charge card for the purchase of products goods and for obtaining services

5 Defendant was provided with monthly statements showing all debits

and credits for transactions on the Account to which there was no bona fide objection

by Dsefendant A Statement of Account summarizing the Account is attached hereto as Exhibit A

6 As of the date of this Complaint the remaining balance due owing and

unpaid on Defendant credit card account as a result of the charges made by said Defendant and any authorized users in the sum of 3,930.67.

7. Despite reasonable and repeated demands for payment Defendant has refused and continues to refuse to pay all sums due and owing on the aforementioned

account balance all to the damage and detriment of the Plaintiff

8 Any and all conditions precedent to the bringing of this action have been

performed by Plaintiff

9 The amount in controversy is within the jurisdictional amount requiring

compulsory arbitration

WHEREFORE Plaintiff respectfully requests this Honorable Court enter Judgment in favor of the Plaintiff and against Dsefendant in the amount of 3,930.67 plus costs of this action and any other relief as this Court deems just and reasonable

[rikkivs]

Hey there. They haven't made reference to a written agreement between you two which means they are trying to sue you on account stated. This is quite difficult to defend. But you have the fact that Midland is the plaintiff on your side. They may not have original documentation or whatever else is necessary for them to prevail in court. If all they attached was one statement of account, that isn't sufficient in the courts' eyes to get you. BTW, an account statement from them or beneficial? They would need to show a history of partial or full payment on the account up to a certain date and also show that they are legally allowed to collect the debt for beneficial.

See the stickies on affirmative defenses in collection cases. You are lucky that a jdb is suing you and not the original creditor.

[nautilus571]

First, the exhibit they provided was a printout from the MIdalnd files providing generic data on the account... i.e. name, acct #, address (s), assignee, etc. Second, what is a "JDB"? Third, what is my first step? And finally, what are "Stickies"?

Mike

[cbairey]

First, the exhibit they provided was a printout from the MIdalnd files providing generic data on the account... i.e. name, acct #, address (s), assignee, etc. Second, what is a "JDB"? Third, what is my first step? And finally, what are "Stickies"?

Mike

Junk Debt Buyer =JDB

"stickies" is the post above the forum, says "stickie "

[rikkivs]

Whoa! you are in a very good position because Midland ONLY provided a statement of account from their records. Chances are quite good that they don't have a damned thing to get you on via the original creditor, which is why they are suing under the account stated theory.

1. A JDB means junk debt buyer; you know the guys who buy debts for pennies on the dollar then sue you for inflated amounts.

2.Stickies are the posts that are in the top section of the forum entitled Is there a Lawyer in the House? They are the posts that always remain for the information of consumers that visit. There is one called: "If you are Being Sued Read This." Please check out the affirmative defenses section.

3. Your first step should be to look at your state rules of civil procedure, see below:

http://www.smartrules.com/states/Pennsylvania/

From what I have seen, PA is a debtor friendly state- at least with regard to some court rulings I have seen. I want you to look at this PDF document and use it as a template for your answers. It is the Grassmyer case see below:

http://www.nclc.org/unreported/content/Grassmyer.pdf

4. In PA, I believe you may make preliminary objections to their pleadings (complaint) look at the grassmyer case and get some ideas, as this applies to you.

Best Wishes.

[nautilus571]

Thanks for the info and links. I take it I must become a member of Smartrules in order to utilize the templates?

[jgatine]

Just keep in mind that Midland is a paper factory. They will not show up with the correct paperwork. They do not have it.

Keep records of every phone call from them. Request all communication be done in writing.

I beat them with the paper game. Play it and you will too.

[nautilus571]

Ok! Great info... Now I just need to figure out how to format my answer to the complaint. I have downloaded a few templates but none are a direct answer to the complaint/notification we were served with. Any help?

Mike

[ALVA]

They haven't made reference to a written agreement between you two which means they are trying to sue you on account stated.

First paragraph of the complaint says "open-ended account". Would that mean they are suing under open account rather than account stated?

[rikkivs]

Hello Nautilus:

To view the SmartRules, become a member. But that was just a quick link to show you the PA rules of civil procedure. Look them up online from other sites and in particular focus on the sections of pleadings and how to answer them, what types of affirmative defenses you may use, then look at how to file preliminary objections. I hope you viewed the Grassmyer case because it is a template for JDB lawsuits. Go to your PA courts website and or call the court clerk and ask if there are forms you can fill out for your answer. Some places allow this so that the answers are standardized.

Hello Alva, you bring up a good point. It could be that they are using two theories to get this guy. One is for money had and received on an open book account and the other could be account stated. I believe that this can be done under common counts. However, since I am not an attorney I can only take educated guesses and I could be totally wrong!

But what bothers me about his complaint is that they refer to no contract between the parties at all, and they use the language:

"Defendant was provided with monthly statements showing all debits and credits for transactions on the Account to which there was no bona fide objection." This seems to set one up for account stated because of underlying thought of debt due to conduct. If he didn't object to the account statments being sent to his home AND he paid on it up to a certain point, that seems to lay a foundation for an assumption to pay, which is why I brought up account stated. This URL from a consumer attorney explains things a bit better than I did:

http://caveatemptorblog.com/2007/06/28/account-stated/

Any attorneys weighing in on this are invited to clarify so that we all may learn:)

[Magdalen77]

One thing I've found is that the clerks in the lower PA courts, like the magistrate's office and the court of common pleas, are pretty helpful. They can't give legal advice but they'll give you forms and even examples if you ask nicely. They've also helped me with directing me to local rules. Each county court has certain ways they want you to present things.

[Magdalen77]

From what I have seen, PA is a debtor friendly state- at least with regard to some court rulings I have seen.

PA rocks because all of the SOL are 4 years and there's no garnishment for most things except for taxes and child support.