Being Sued by Midland in AZ

[cup1029]

Hello everyone,

Here's where im at, i have filed my answers along with affirmitave defenses.

i got a disclosure statement in the mail along with 4 exhibits(mind you i did not request the paperwork) a generic copy of the credit card agreement, affidavit from midland employee, generic bill of sale between best buy and midland(this does not have my name on it or account number) and finally a statement from midland showing the amount owed, the oc account # and oc name.

i have been reading and reading. At this point i know i would have to file a motion to strike the affidavit as hearsay, what would i have to do with the other items? Would i file a motion to dismiss? or would i have to file a motion to strike the bill of sale?

This is where im getting confused. This is the steps that i know so far

1. Being served

2. filed answers with affirmative defenses

3. received atty disclosure statement

4. do i file motions to strike here? or do i need to send in a request for discovery? Ask for a signed copy of the original contract, ask them to show proof payments were made? ask for payment history from them and the o/c?

then i know the steps from here

5. pretrial conference (date is set for 5-2011)

6. trial

i am confused on step #4

again thanks everyone for your help!

[BV80]

i have been reading and reading. At this point i know i would have to file a motion to strike the affidavit as hearsay, what would i have to do with the other items? Would i file a motion to dismiss? or would i have to file a motion to strike the bill of sale?

What was the gist of the affidavit? Was it just to state that the allegations in the Complaint were true, or did it state that he/she had personal knowledge of the records (statements, agreement) they sent you?

or do i need to send in a request for discovery? Ask for a signed copy of the original contract, ask them to show proof payments were made? ask for payment history from them and the o/c?

There's usually not a signed contract with a credit card. Perhaps you signed an application, but no contract. The cardmember agreement they sent you should be the agreement that was in effect when the account went into default. It should dated on or around that time.

You can ask them for proof payments were made, but they'll object. They'll say they've already provided you with copies of statements. If it were me, I'd ask for a complete accounting of the alleged debt including all charges, payments, interest, and fees.

[cup1029]

The affidavit was from their record holder in MN stating they have personal knowledge of the account info with midland.

When i ask for the complete accounting information does this need to be in Discovery form? And do i file a motion to strike the affidavit all at the same time?

Thanks BV80, you have been of great help to me!!

[cup1029]

On my case i got the discovery paperwork from the attorney about 2 weeks but i need more. I wanted to send a request to the plaintiff attorney requesting statements from the OC. How do i do this? Do i just type up a request stating i want the statements from the original creditor, civil #, and file this with the court and attorney? How long do i have to request this info after i got the discover paperwork from the plantiff attorney.

I got motion forms from the court already, just need some help,

Thanks BV80! you have given me a lot of info!!

Edited March 28, 2011 by cup1029

[BV80]

Read your Rules of Civil Procedure. If you have not already sent your discovery request, see if you can send Admissions, Interrogatories, and Requests for Production of Documents.

In the Request for Production of Documents, you would request all statements from the beginning of the alleged account to the date of charge off, and showing all charges, payments, interest, and fees. You would also request a complete of accounting of any interest and fees charged by the Plaintiff. What did Midland's affidavit say?

Here's some examples of Admissions:

1. Admit Plaintiff is a debt collector according to the definition under the FDCPA.

2. Admit Plaintiff purchases portfolios of defaulted debts in the regular course of business.

3. Admit Plaintiff purchases defaulted debts for a small percentage of the original balances.

4.. Admit Plaintiff is not the original creditor of the alleged debt claimed in the Complaint.

5. Admit Plaintiff does not have a signed agreement between the alleged original creditor and the Defendant.

6. Admit Plaintiff does not have an agreement with the Defendant.

7. Admit Plaintiff has never exchanged goods, services, and/or money with the Defendant.

Your discovery requests need to be the same format the Plaintiff used in the Complaint, and that you used to write your answer...court header, title (Defendant's Request for Admissions, etc.) numbered paragraphs.

[rockyfrank]

I know this is a bit off topic, but isn't Midland Funding not licensed to collect in Arizona?

[BV80]

I know this is a bit off topic, but isn't Midland Funding not licensed to collect in Arizona?

According to the AZ Department of Financial Institutions, they are licensed.

[GDayMateAZ]

According to the AZ Department of Financial Institutions, they are licensed.

BV,

It's Midland Credit Management (CA) who is licensed in AZ.

http://azdfi.gov/Lists/CA_List.HTML

Midland Funding LLC (JDB) is not licensed here, and it's OK in this state,

because AZ does consider JDBs as creditors and does not require them to get licensed as CAs.

Please see my thread:

http://www.creditinfocenter.com/forums/showthread.php?t=304306

Edited March 28, 2011 by GDayMateAZ

[BV80]

Aren't collection agencies are required to be licensed in AZ?

I thought Midland Funding is a subsidiary of Midland Capital Management which is also a subsidiary of Encore.

[GDayMateAZ]

Aren't collection agencies (CAs) are required to be licensed in AZ?

BV,

Encore-Midland intentionally made all this thing complicated for

"most unsophisticated consumers" like us.

Yes, CAs are required to be licensed in AZ.

Midland Credit Management (MCM) is CA and it's licensed in this state.

I thought Midland Funding (MF) is a subsidiary of Midland Capital (actually Credit, not Capital) Management which is also a subsidiary of Encore.

Yes, you are correct:

MF is a subsidiary of Midland Credit Management (MCM),

and MCM is a subsidiary of Encore.

However, Midland Funding LLC is JDB (not CA), and so is considered in AZ as Creditor.

[BV80]

This is interesting. Midland Funding is licensed in New York as a collection agency. So AZ must have some kind of exemption. What's the AZ statute that exempts debt buyers? Also, for some reason, I thought Midland collected debts for other companies.

[GDayMateAZ]

This is interesting. Midland Funding is licensed in New York as a collection agency.

So, there is a difference between these two states.

I guess, that NY is more consumer-friendly state comparing with AZ.

So AZ must have some kind of exemption.

What's the AZ statute that exempts debt buyers? Also, for some reason, I thought Midland collected debts for other companies.

A.R.S. 32-1001. Definitions

2. "Collection agency" means:

(a) All persons engaged directly or indirectly in soliciting claims for collection or in collection of claims owed, due or asserted to be owed or due.

( Any person who, in the process of collecting debts occurring in the operation of his own business, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/32/01001.htm&Title=32&DocType=ARS

[BV80]

Well, I suppose Encore covered all their bases. AZ at least requires CAs to be licensed. SC doesn't require any of them to be licensed as of now, although the idea is being thrown around.

[GDayMateAZ]

Well, I suppose Encore covered all their bases.

Yes, they did it.

AZ at least requires CAs to be licensed. SC doesn't require any of them to be licensed as of now, although the idea is being thrown around.

So, AZ is not the most business-friendly state ...

[cup1029]

Read your Rules of Civil Procedure. If you have not already sent your discovery request, see if you can send Admissions, Interrogatories, and Requests for Production of Documents.

In the Request for Production of Documents, you would request all statements from the beginning of the alleged account to the date of charge off, and showing all charges, payments, interest, and fees. You would also request a complete of accounting of any interest and fees charged by the Plaintiff. What did Midland's affidavit say?

Here's some examples of Admissions:

1. Admit Plaintiff is a debt collector according to the definition under the FDCPA.

2. Admit Plaintiff purchases portfolios of defaulted debts in the regular course of business.

3. Admit Plaintiff purchases defaulted debts for a small percentage of the original balances.

4.. Admit Plaintiff is not the original creditor of the alleged debt claimed in the Complaint.

5. Admit Plaintiff does not have a signed agreement between the alleged original creditor and the Defendant.

6. Admit Plaintiff does not have an agreement with the Defendant.

7. Admit Plaintiff has never exchanged goods, services, and/or money with the Defendant.

Your discovery requests need to be the same format the Plaintiff used in the Complaint, and that you used to write your answer...court header, title (Defendant's Request for Admissions, etc.) numbered paragraphs.

thanks for the great info, with out your help i would definetly be lost!! The affidavit from midland is an Affidavit of Shannon McClellan, it basically states she is an account special ist with midland and she has access to pertinent accound records for midland and is fully aware of this account with midland.

Now let me ask you this, when i filed my answers i made sure to hit on all the points on the complaint. I also listed some affirmative defenses stating midland has not proven they are the account holder, they have not proven i owe this debt, at no time did i enter into an agreement with midland and therefore i feel that their requests for monetary gain is unjustified. Could this be the reason why they sent me the discovery paperwork? If so, do i ask for the statements in the answer format again?

thanks for your help!

[idealsmile]

thanks for the great info, with out your help i would definetly be lost!! The affidavit from midland is an Affidavit of Shannon McClellan, it basically states she is an account special ist with midland and she has access to pertinent accound records for midland and is fully aware of this account with midland.

Now let me ask you this, when i filed my answers i made sure to hit on all the points on the complaint. I also listed some affirmative defenses stating midland has not proven they are the account holder, they have not proven i owe this debt, at no time did i enter into an agreement with midland and therefore i feel that their requests for monetary gain is unjustified. Could this be the reason why they sent me the discovery paperwork? If so, do i ask for the statements in the answer format again?

thanks for your help!

Thank you for this information I am going to court against Midland Funding Tomorrow here in AZ and am nervous since I am representing myself but I have learned a lot on this site to not just give in to them.

[johnnae]

I too am fighting Midland here in Phoenix and would love to share any information to aid each other in this fight.

Even though I answered the complaint, Midland filed a Motion for Judgment and I have an arbitration with them on July 21.