complaint filed by Midland

[Klutzie]

1. Who is suing you? Midland Funding

2. For how much? over $10,000

3. Who is the original creditor? unknown I have suspicions but no one is named in the complaint

4. How do you know you are being sued? received complaint in civil action

5. How were you served? Were you served? deputy sheriff

6. What was your correspondence (if any) with the people suing you before you think you were being sued? none

7. Where do you live? PA

8. When is the last time you paid on this account? Unknown. They listed no O.C.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). just a filed complaint so far

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Not yet. I wasn't sure if I should wait to see if the judge dismisses their complaint first.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response in writing? Yes within 20 days of being served (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Just an Affidavit.

Verification

A. H., being duly sworn (or affirmed) according to law deposes and says that I am employed as a Legal Spe******t for Midland Credit Management, Inc. ("MCM"), servicer of this account on plaintiff's behalf. The facts set forth in the foregoing pleading are true and correct upon information and belief.

A.H.

State of Minnesota

Notarized by C.B.

14. What is the SOL on the debt? To find out: Unknown

[BV80]

Klutzie,

In the complaint, did they state that you opened or applied for a credit card with "so and so" on a particular date? Midland can't state you have a credit card debt with them. They can only state that the debt was assigned to them or that they purchased it.

[Klutzie]

Using advise given in another thread. I tried to change the Preliminary Objections sample to suit my case. I'm not sure if I did this right or what more I need.

Defendant, Klutzie, file preliminarily objections to Plaintiff's Complaint, as follows:

1. Plaintiff alleges in paragraph 1 of its complaint that it 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 account **********XXXX (MCM Number XXXXXXXXXXX) but fails to attach any contract, bill of sale, receipt for purchase, change of succession, assignment, or agreement between the unidentified original credit grantor and itself.

2. Plaintiff alleges in paragraph 2 of its complaint that this action is based upon a revolving credit agreement entered into between the defendant(s) and the original credit grantor but fails to identify the original credit grantor, attach the contract, and

identify the transaction date(s).

3. Plaintiff alleges in paragraph 3 of its complaint that the defendant(s) used or authorized the use the credit account to obtain loans from the original credit grantor for the purpose of obtaining goods and/or services and/or cash advances but fails to attach any statement of an account, contract existing between the defendant and the unidentified original credit grantor, documentation that the defendant used or authorized the use, and identify the transaction date(s).

4. Plaintiff alleges in paragraph 4 of its complaint that the defendant failed to make full payment of the amount due on the account but fails to attach the contract, statement of an account, and identify the transaction date(s)

5. Plaintiff alleges in paragraph 5 of its complaint that the last payment posted to the account on but fails to identify the date, payment or statement of account

6. Plaintiff alleges in paragraph 6 of its complaint that the account shows that the defendant(s) owe(s) a balance of $XX,XXX but fails to attach the assignment or purchase of the account, statement of account, terms of account.

I. PRELIMINARY OBJECTION LACK OF CONFORMITY TO LAW OR RULE OF COURT

7. Paragraphs one through six are incorporated by reference as if set forth at length herein.

8. As a general rule, an action must be brought ``by and in the name of the real party in interest.'' Pa. R.C.P. No. 2002(a).

9. A real party in interest is one who can discharge a given right, obligation, or liability and control an action brought to enforce it.

10. Plaintiff alleges in paragraph 1 of its complaint that it is the owner of, and or successor to the obligation sued upon ; however, Plaintiff fails to attach a copy of any proof of ownership, chain of succession, show the defendant was a party to alleged obligation, terms or conditions of alleged obligation.

11. Rule 1019(i) of the Pennsylvania Rules of Civil Procedure requires that where a claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

12. Plaintiff’ fails to produce an agreement and statement of account, as well as evidence of the ownership/succession of the aforesaid account.

13. Plaintiff’s complaint is silent about the substance of these writings and whether each writing is accessible.

14. Plaintiff’s pleading is insufficient and Plaintiff has not established that it is a real party in interest or that it has capacity to sue in its own name.

WHEREFORE, defendant respectfully requests that this Court dismiss

plaintiff's complaint.

II. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM

TO APPLICABLE RULES OR LAW.

15. Paragraphs 1 through 14 are incorporated by reference as if set forth at length herein.

16. Plaintiff’s Complaint fails to set forth sufficient facts as to time, place and items of special damages with specificity, as required by Pa. R.C.P. 1019(f).

17. Plaintiff alleges in paragraph 1 of its complaint that Plaintiff is assigned all the rights, title and interest to the defendants account **********XXXX; however, Plaintiff fails to attach or to explain the absence of its credit account and the assignment thereof as required by Pa. R.C.P. 1019(h).

18. The Complaint purports to state a claim against Defendant for the use of a revolving credit agreement ; however, instead of attaching the written agreement, Plaintiff merely alleges that Defendant is responsible for an unpaid balance and that defendant owes a balance of $XX,XXX.

19. Plaintiff fails to attach a signed contract, the application for the revolving credit agreement, or any statements of account. Plaintiff fails to identify the original credit grantor. Plaintiff fails to attach the assignment or purchase of the account from whomever the original credit grantor may be to Plaintiff.

20. Plaintiff fails to identify those specific dates of use or terms under the contract that substantiate the alleged balance or amount owed. Plaintiff even fails to properly identify itself, provide its place of business, necessary information to determine whether or not it is/or required to be licensed with the Pennsylvania Department of Banking under the Consumer Discount Company Act.

21. The Complaint does not comply with Pa. R.C.P. 1019(a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form".

22. As a result, plaintiff's complaint is vague and general and does not specifically state the debt incurred or what, if any, payments are due and the nature of the charges included as part of the amount Plaintiff claims to be owed.

23. Under Pa. R.C.P. No. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to law or rule of court.

24. The substance of Plaintiff's Complaint violates the Pennsylvania Rules of Civil Procedure and must be dismissed.

WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint against her be dismissed for lack of conformity to the Pennsylvania Rules of Civil Procedure.

IV. INSUFFICIENT SPECIFICITY OF A PLEADING.

25. Paragraphs 1 through 24 are incorporated by reference as if set forth at length herein.

26. Plaintiff's complaint lacks sufficient specificity to apprise defendant of the issues to be litigated or to allow her to adequately prepare and assert defenses to plaintiff's allegations.

27. Additionally, Defendant is entitled to more specific information to be able to answer intelligently and determine if she is even obligated for such credit and what items she can admit and what she must contest.

28. The Complaint generally asserts a breach of contract and other failures of

performance against Defendant, contrary to Rule 1019(f).

29. The Complaint fails to state any facts upon which the amount of damages may be calculated, in violation of Pennsylvania Rule of Civil Procedure 1019(a), which requires that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form."

WHEREFORE, Defendant respectfully requests this Court to require that Plaintiff plead more specifically the averments of its complaint relating to damages and the nature of the default.

Respectfully submitted

Dated: __________________

Klutzie

Pro se Defendant

[Klutzie]

Here's is the complaint that I received:

Midland Funding

vs

Klutzie

1. Plaintiff is the current owner of, and/or successor to the obligation sued upon, and was assigned all the rights, title and interest to the defendant's account **********XXXX (MCM Number XXXXXXXXXX) (hereinafter "the account")

the X's are mine the *'s are not they actually filed the complaint that way

2. Upon information and belief, this action is based upon a revolving credit agreement entered into between defendant(s) and the original credit grantor.

3. Upon information and belief, defendant(s) used or authorized the use of the credit account to obtain loans from the original credit grantor for the purpose of obtaining goods and/or services and/or cash advances.

4. Defendant(s) failed to make full payment of the amount owed on the account.

5. Upon information and belief, the last payment posted to the account on

no dated is listed on the complaint

6.The account shows that the defendant(s) owe(s) a balance of $XX,XXX

By: , Esquire

Attorney for the Plaintiff

[Klutzie]

Klutzie,

In the complaint, did they state that you opened or applied for a credit card with "so and so" on a particular date? Midland can't state you have a credit card debt with them. They can only state that the debt was assigned to them or that they purchased it.

No

[RebelLady]

So Midland simply stated they are the owner, successor in interest, etc but don't say from whom????

Now that's weird...even for Midland!!

Not meaning to be hateful to you or anything...but first of all...DROP ANY AND ALL SUSPICIONS YOU MAY HAVE OF WHO THE OC MIGHT BE!!!!

Make them state who it is and then offer authenticated proof that they even have standing to sue you...

Like BV80 said...Midland is a JDB...not an extender of credit or issuer of credit cards...

RL

[RebelLady]

Be sure you take the time to read through that sticky Winning Against Midland...it might help you.

RL

[BV80]

Make them state who it is and then offer authenticated proof that they even have standing to sue you

RebelLady's right.

I've never seen or heard of a Complaint such as that, but nothing really surprises me about Midland. They're as scummy as it gets.

As far as your answer to the complaint, I'm hoping the more knowledgeable members of these boards will chime in. If it were me, I'd go ahead and prepare Interrogatories and Requests for Production, but others might tell you to wait and see if Midland sends discovery requests to you.

I am concerned about #27. I don't know if I'd include "determine if she is even obligated for such credit and what items she can admit and what she must contest." Even if the alleged debt is yours, you don't owe Midland a thing. You never had a contract with them, and they never provided a service to you. Therefore, you are not obligated to them.

[RebelLady]

I agree. That #27 is a little bothersome to me, too. Not sure why but it just doesn't seem right...lol.

I've never heard or seen a summons, even from Midland (although they're not above stretching the truth as far as it will go) where they don't state Successor in Interest or Assignee Of somewhere on the complaint. Grief...

RL

[Klutzie]

Thanks for the tips. I used the sample from the other thread and #27 was there. I'll drop it for mine. Is there anything more that I need to write up before I file? Nervous that I might messed something up.

Not meaning to be hateful to you or anything...but first of all...DROP ANY AND ALL SUSPICIONS YOU MAY HAVE OF WHO THE OC MIGHT BE!!!!

Make them state who it is and then offer authenticated proof that they even have standing to sue you...

I know.. sorry. Getting ahead of myself. Trying to plan like they might have some paperwork. I'm not giving them anything and will fight this. I've been reading threads for days. It's been a god sent. Thank you.