Summons served by Midland Credit LLC

[Zulator]

Hello,

I have been lurking on this forum since I got served a summons a little over a week ago by Midland Funding LLC. I am a little nervous since I have never been sued and I thought I would ask a few questions. The summons contains an affidavit from a Nancy Kohls that she has personal knowledge of "the account" by Maryland National Bank as the original creditor along with an account number and an amount.

The summons also lists myself and "Jane Doe" or my wife, I have never been married. I looked at my credit and found an account I had with Bank of America listing the same amount. The account was opened in 05/2005 ans listed as closed on 06-2007. I have been doing some research on what affirmative defenses to use and I think I have a pretty solid foundation, I just wanted some feedback. Here they are in the order I have them on my answer to the summons, any advice would be greatly appreciated.

AS AND FOR AFFIRMATIVE DEFENSES

1. Complaint failed to state the basis of the claim and fails to state facts sufficient to constitute a cause of action.

2. Defendant alleges this action barred by the statute of limitations under 12-1543 of the laws of Arizona.

3. Midland Funding LLC has provided no reliable, credible, or admissible sworn statement or other evidence testifying to the accuracy or validity of their recollection of the alleged account.

4. Failure of Consideration: No exchange of money or goods occurred between the plaintiff and the defendant.

5. Plaintiff admits to purchasing the debt allegedly owned by the Defendant past the statute of limitations, causing Plaintiff's injury to itself, therefore Plaintiff is barred from seeking relief for damages.

6. Plaintiff obtained my credit report without my consent or entering into a legal contract for credit in violation of the FRCA section 604.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and therefore DENIES.

WHEREFORE, the defendant asks the Court for judgment against Plaintiff:

a. dismissing the complaint in full and with prejudice.

Edited October 11, 2010 by Zulator

[Zulator]

Guess I'll go with these? I am going to answer the summons Monday.

[BV80]

I might address the affidavit of Nancy Kohls a little more by pointing out that she cannot have personal knowledge of the alleged account since she was never employed by the OC and has no way of knowing if the statements and the balance are true and correct.

I would add that the Plaintiff has failed to prove ownership of the alleged debt...nothing that shows Plaintiff purchased any debt allegedly owed by you.

You should have them on the SOL alone.

There should be a way to address the "wife" issue, but I don't know what it is.

[Savoir]

is NOT an affirmative defense.

What are your referring to?

Without further information ... that statement sounds like it should be in your Answer To the Complaint.

[Zulator]

I am not using the thig about having a wife, I just admitted in part that I am who they say I am but that I don't have a wife and was never married.

I am sure they will try to say the SOL is 6 years in AZ, but thanks to the work of another site I found recent case law that some had successfully argued that CC SOL in AZ is 3 years. I think it was Washington V.S DSS financial?

[Zulator]

I might address the affidavit of Nancy Kohls a little more by pointing out that she cannot have personal knowledge of the alleged account since she was never employed by the OC and has no way of knowing if the statements and the balance are true and correct.

I would add that the Plaintiff has failed to prove ownership of the alleged debt...nothing that shows Plaintiff purchased any debt allegedly owed by you.

You should have them on the SOL alone.

There should be a way to address the "wife" issue, but I don't know what it is.

Thanks, I will include something about the affidavit. The OC is Maryland National Bank which does not appear on my CR. MBNA was acquired by BoA, and there is an account for the exact amount on my CR.

Sitting here I can think of how to defend this, but once I get to court I may get nervous and I can get easily thrown off. Also, does anyone have an opinion on a collector pulling your credit report without your permission? I worked in consumer finance for quite a while and I know that was a big no, no.

[Zulator]

is NOT an affirmative defense.

What are your referring to?

Without further information ... that statement sounds like it should be in your Answer To the Complaint.

I am just saying that I have no knowledge of the allegation. I could take it out, it does seem redundant...

[Zulator]

I decided it wasn't the best idea to post my answer, in case the other side happens to know where to look.

Edited October 11, 2010 by Zulator

[BV80]

Considering the debt is outside the SOL, and Midland cannot show ownership, if they know you're willing to fight, it wouldn't surprise me if they eventually drop the case on their own.

Prepare your Interrogatories and Request for Production of Documents to Midland, if you haven't already. Make them prove their case (which, of course, they won't be able to do).

[Zulator]

Considering the debt is outside the SOL, and Midland cannot show ownership, if they know you're willing to fight, it wouldn't surprise me if they eventually drop the case on their own.

Prepare your Interrogatories and Request for Production of Documents to Midland, if you haven't already. Make them prove their case (which, of course, they won't be able to do).

See, there you go. I have to research what Interrogatories are now! I thought all I had to do was to drop the answer off at the courthouse and mail a copy to Jerold Kaplan? Are the Interrogatories and request for production of documents something that comes after I send them the answer to the summons?

Our legal system really isn't meant for the average person...

Edited October 11, 2010 by Zulator

[BV80]

See, there you go. I have to research what Interrogatories are now! I thought all I had to do was to drop the answer off at the courthouse and mail a copy to Jerold Kaplan?

I know how you feel! The first time I faced it, I thought my brain was going to explode.

Interrogatories are requests to the Plaintiff such as "Give the date of the last payment and the amount of the payment", etc. Request for Production of Documents are the documents you want them to produce, as well as any documents they intend to use. For instance, you would request they provide all Bills of Sale or Assignments of the alleged debt.

There are samples of Interrogatories and Request for Production on these boards.

Are the Interrogatories and request for production of documents something that comes after I send them the answer to the summons?

That information should be in your state's court rules. It might be listed under "Court Rules" or "Rules for Civil Procedure". In my state, we can send Interrogatories and Requests along with the Answer to the Complaint if we want to, or we can wait and send them later.

I know you know this already, but be sure to mail the Answer to the attorney CMRRR.

Edited October 11, 2010 by BV80

[Zulator]

I know how you feel! The first time I faced it, I thought my brain was going to explode.

Interrogatories are requests to the Plaintiff such as "Give the date of the last payment and the amount of the payment", etc. Request for Production of Documents are the documents you want them to produce, as well as any documents they intend to use. For instance, you would request they provide all Bills of Sale or Assignments of the alleged debt.

There are samples of Interrogatories and Request for Production on these boards.

That information should be in your state's court rules. It might be listed under "Court Rules" or "Rules for Civil Procedure". In my state, we can send Interrogatories and Requests along with the Answer to the Complaint if we want to, or we can wait and send them later.

I know you know this already, but be sure to mail the Answer to the attorney CMRRR.

Yes thanks, I do know to send it registered mail to the attorney. I have to take it to the court because they require a fee. I am also fighting the state of Colorado for back taxes, I do feel like my head is about to explode. I really should be looking for a way to make money rather than fighting off old debts.

[BV80]

I really should be looking for a way to make money rather than fighting off old debts.

Fighting off old debts is important. Credit ratings can be ruined by old debts that have been re-aged and kept on CRs, debts that shouldn't be on the CR in the first place, and default or summary judgments.

Who knows? Some of those old debts may result in CAs or JDBs violating the FDCPA, TCPA, or FCRA which could result in a little settlement check for you.

[Zulator]

Fighting off old debts is important. Credit ratings can be ruined by old debts that have been re-aged and kept on CRs, debts that shouldn't be on the CR in the first place, and default or summary judgments.

Who knows? Some of those old debts may result in CAs or JDBs violating the FDCPA, TCPA, or FCRA which could result in a little settlement check for you.

I understand, I worked in the consumer loan industry for years. There is a correlation with making money and having good credit. As soon as I left my old job, my credit rating went straight down. I am sure as soon as I deal with this one, others will come. This one is for close to $8000 but it wouldn't matter if it was $80 right now, I can't pay it.

[Zulator]

Well, I took my answer to the summons to the court and mailed to the JDB. Now I have some other CA calling me, does this sick feeling ever go away?

[BV80]

does this sick feeling ever go away?

The feelings are a progression...a process, and that process is different for everyone. My initial feelings were worry and grief, then anger at myself and the CAs, and finally, acceptance that I am human and can make mistakes. I had never avoided debts in the past and never intended to do so at any time. But, as they say, life happens.

Today I am stronger, more knowledgeable, and much wiser. Newfound strength and knowledge empower me to stand up for my rights. Wisdom will help prevent me from making the mistakes of the past and make possible a more secure future.

[Zulator]

The feelings are a progression...a process, and that process is different for everyone. My initial feelings were worry and grief, then anger at myself and the CAs, and finally, acceptance that I am human and can make mistakes. I had never avoided debts in the past and never intended to do so at any time. But, as they say, life happens.

Today I am stronger, more knowledgeable, and much wiser. Newfound strength and knowledge empower me to stand up for my rights. Wisdom will help prevent me from making the mistakes of the past and make possible a more secure future.

Thanks for your input. I am typically not a person that lets people push me around, so I'm not worried. Just tired of feeling like a criminal because I haven't been able to make a living for the last 3 years. I am sure there will more coming after me now. I got a collections call on my cell phone yesterday. Up until this point, no one had the number. I wonder how that happened?

Is there anything productive I should be doing since filing my answer? Do I just wait to hear back from the JDB?

[BV80]

Is there anything productive I should be doing since filing my answer? Do I just wait to hear back from the JDB?

Research, research, research...know your enemy.

Become organized. I made files for every collection case. I had separate files for a couple of lawsuits.

Also, I made sure I saved all my written correspondence on the computer. For instance, you can use the same DV letter for each agency, just change the name and address. The same goes for any dispute letters with the CRAs.

Your saved court documents on your computer will be handy if you're sued again. By time the 2nd case against us came along, the 1st was over and done with, and I had my paper copies of documents in my file. Since the court header was the same, I simply used all the documents from the 1st case that I had saved on the computer. For the Answer to the Complaint, all I had to do was change the case number, Plaintiff name, etc., and type in new answers. I used almost the same Interrogatories and Requests for Production that I had used in the 1st case. I just changed the pertinent information and kept the Interrogatories and Requests that I needed, deleted the ones that weren't needed, and added 1 or 2 new ones.

If you know you're going to be contacted by more CAs and JDBs, it saves time to be prepared, and it'll help you feel more in control...not quite so flustered.

[Zulator]

Research, research, research...know your enemy.

Become organized. I made files for every collection case. I had separate files for a couple of lawsuits.

Also, I made sure I saved all my written correspondence on the computer. For instance, you can use the same DV letter for each agency, just change the name and address. The same goes for any dispute letters with the CRAs.

Your saved court documents on your computer will be handy if you're sued again. By time the 2nd case against us came along, the 1st was over and done with, and I had my paper copies of documents in my file. Since the court header was the same, I simply used all the documents from the 1st case that I had saved on the computer. For the Answer to the Complaint, all I had to do was change the case number, Plaintiff name, etc., and type in new answers. I used almost the same Interrogatories and Requests for Production that I had used in the 1st case. I just changed the pertinent information and kept the Interrogatories and Requests that I needed, deleted the ones that weren't needed, and added 1 or 2 new ones.

If you know you're going to be contacted by more CAs and JDBs, it saves time to be prepared, and it'll help you feel more in control...not quite so flustered.

I am not so much flustered as I am frustrated. I also came across a letter I received from BoA back in 2005 stating that they were contacting all of the credit reporting companies to remove information they added. I don't know if it's for the same account? I had a few BoA accounts. But the good news is, Midland may not be able to prove it's the same account either?

Edited October 14, 2010 by Zulator

[BV80]

I also came across a letter I received from BoA back in 2005 stating that they were contacting all of the credit reporting companies to remove information they added. I don't know if it's for the same account? I had a few BoA accounts. But the good news is, Midland may not be able to prove it's the same account either?

If you've denied knowing anything about the account, I wouldn't provide possible evidence that shows you ever had an account.

Even if Midland were to include statements with the same account number, they still must prove they own that debt. They must also prove the amount is correct. The portfolios they purchase contain thousands of debts. Not only would they not be able to show that your alleged debt was specifically included in that portfolio, unless they provided every statement, they wouldn't be able to prove the amount is accurate.

[Zulator]

If you've denied knowing anything about the account, I wouldn't provide possible evidence that shows you ever had an account.

Even if Midland were to include statements with the same account number, they still must prove they own that debt. They must also prove the amount is correct. The portfolios they purchase contain thousands of debts. Not only would they not be able to show that your alleged debt was specifically included in that portfolio, unless they provided every statement, they wouldn't be able to prove the amount is accurate.

I understand, just thinking too much. I tend to do that...

[BV80]

I understand, just thinking too much. I tend to do that...

That's better than thinking too little.

[Zulator]

That's better than thinking too little.

Touche! Just would like to be able to shut it off once in a while. I just don't want these bastards to win.

[BV80]

I just don't want these bastards to win.

Believe me, I know the feeling.

I wasn't being sarcastic when I made the comment about thinking too little. It really is better to think too much and research in order to try to cover all your bases, rather than think too little and make mistakes that could have been prevented by simply asking questions or doing that extra research.

Edited October 15, 2010 by BV80

[rjejw]

I Just been sued by Midland and with no money laid off, my wifes battleing cancer lost her income along comes this civil suit, i need help, i have to defend my self pro se, newryman if you see this i could really use your help or anyone elde who knows pa laws and statutes. thank you and God bless.