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Midland Lawsuit in AZ..


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Midland tried this a couple years ago for a different account and went directly into mediation. All I stated was that the SOL on the account was past and it was over. They sent me a letter a few days later stating they were dropping it. Little confused on how to go about with a response. Any help would be greatly appreciated!

1. Who is suing you? Midland Funding LLC

2. For how much? $1100 plus legal fees

3. Who is the original creditor? Capital One

4. How do you know you are being sued? Got Served

5. How were you served? Were you served? My roommate was served the paperwork at home.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

7. Where do you live? Phoenix, AZ

8. When is the last time you paid on this account? Want to say no later than summer of 08, possibly even as early as 07.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). "New Case" - online.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

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? (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? Yes, with in 20 days.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? An affadavit from a legal spe******t for MCM along with a copy of a CC agreement from Capital One.

14. What is the SOL on the debt? I believe 3, but reading around it might have been changed to 6?

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Midland is so beatable...file an answer to the complaint and deny everything. After that, the court will set a pre-trial hearing.

The SOL was recently changed to 6 years, however, the case law still reflects a 3 year SOL. I have read that there is a belief that card defaults after May 2011 would be

subject to the 6 year SOL, but again, there is no case law to back that.

As far as the affidavit goes, it is hearsay on its face - in other words the spe******t never had any knowledge of the creation of the debt.

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Since the amount is less than $5k, I'd consider the contractual arbitration. For that, you'd have to get a copy of the cardholder agreement, and write a motion to compel arbitration.

The arbitration route will be extremely expensive, probably $3-$5k to bring an $1,100 case - Midland will probably drop the case.

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Thanks 1stStep!

I love how they have all their paperwork dated the "September 15, 2011", yet they didn't file with the court until the 26th and didn't deliver the papers to me until end of the day on the 28th. Am I correct to assume that the "20 days" is from when the court time stamp is on there and not their dates?

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  • 1 month later...

Ok, their response was asking for default judgement again along with attaching credit card statements from late last year and early this year (Feb) showing almost 50% more owed than what they're asking for and keep stating that the statement shows and is owed. Like I said, absolute latest any payment was made was Summer of 08. Funny thing is I stopped receiving any kind of statements from them long before the statements they have attached are dated? And they keep speaking of the contract I broke and payments I've failed to make to the Plaintiff. Did I not never enter into a contract with Midland for these statements to even be true?

Court also mailed a mediation next month. Any suggestions/help? Would be greatly appreciated.

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Did you file an answer with the court? If so, the default will be rejected.

If you didn't file your answer, you have 10 days to file an answer with the court. Get going...if you do it tomorrow, you'll ruin someone's Thanksgiving

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As far as the contract goes, Midland will claim there's a contract (in the form of the cardholder agreement) that they claim they assume.

Often times, Midland can't / won't be able to produce it when requested.

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Yeah, with a response similar to what I found on these forums that another person from Arizona replied with. They sent in 2 requests since then + this one to default. First 2 were wanting to default because I hadn't responded, ha. This response is stating that I denied all their accusations and that they provided their "expert" Affidavit and these 2 credit card statements from November of last year and February of this year from the creditor and thus, they're going for default judgement since I haven't made a payment to them as of yet.

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Did they send discovery yet? If so, did you answer it in time?

If they never sent discovery AND you filed the answer with the court, then they will reject the default filing.

If this is a Motion for Summary Judgment, then you need to file a reply motion, along with a motion to strike their affidavits for hearsay.

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Did they send discovery yet? If so, did you answer it in time?

If they never sent discovery AND you filed the answer with the court, then they will reject the default filing.

If this is a Motion for Summary Judgment, then you need to file a reply motion, along with a motion to strike their affidavits for hearsay.

Since I sent them the 20 or so answer response that I found on these forums, they've only sent a couple requests for default judgement due to no response on my behalf (yet, I did) and then this latest one that I speak of with 2 credit card statements. None of which seems to be any of the requested information and obvious that they got it because they go on to state I deny I owe the debt, then go to show the statements.

I'm not worried about the court defaulting in their favor. Just trying to figure out what to do now? Should I just wait until the mediation date and appear stating they have yet to provide proof that they own the alleged debt along with proof of purchase? Not to mention that it more than likely is beyond SOL?

Again, thanks for any help and/or input. :)

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What to do next? What do AZ's rules of civil procedure say about discovery? If you can serve them upon the douchebags at anytime, start crafting them now and send them as soon as you know they are solid. Don't wait. Discovery is your means of beating them like a red headed stepchild.

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Got something today from them requesting me to contact them via telephone to attempt to come to a settlement outside of the court. Suggestion = to ignore it? Or call and say I'll settle for the pennies on the dollar price their client bought the account for?

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The SOL was recently changed to 6 years, however, the case law still reflects a 3 year SOL. I have read that there is a belief that card defaults after May 2011 would be

subject to the 6 year SOL, but again, there is no case law to back that.

Cap 1 is in VA. Not a very friendly debtor state, another bribery job with interest rates with no limit and indecipherable statutes that protect credit card thieves. Doesn't matter if the law was recently changed, the law that applied at the time of your contract is the law that applies. VA has a 3 yr statute of limitations. Here's from their agreement:

The Law that Applies to Your Agreement.

We make decisions to grant credit and issue you a Card from our offices in Virginia. This Agreement will be interpreted using Virginia law. Federal law will be used when it applies.

You waive any applicable statute of limitations as the law allows. Otherwise, the applicable statute of limitations period for all provisions and purposes under this Agreement (including the right to collect debt) will be the longer period provided by Virginia or the jurisdiction where you live. If any part of this Agreement is found to be unenforceable, the remaining parts will remain in effect

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I would still attack them on the SOL. Statutes in effect at the time of the contract's making are the applicable statutes. I learned that the hard way. I looked up VA law a few days ago and posted it here......it still said 3 years. What is this 6 year SOL you refer to? Arizona's? If so, forget it. The choice of law provision says VA. Make them abide by it.

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I'd always contact the other side if they ask in writing. I'm not budging and it will be a polite go pound sand and you just wasted your time. However, the courts like to have parties work things out, or at least put on a show that they are at least trying.

Your under no legal obligation, usually, to work with the other side, but no reason to not play along. It's the same reason I believe you should send an intent to sue letter prior to suing. You know, or have a pretty good idea, the other side will not respond. However, you can say I tried and they left me no option but to sue.

You want to appear like your willing to cooperate. In reality you can be hell to deal with and their worst nightmare, but you want to appear not that way.

Call them up, listen, say I'll get back to you, and then send them a certified letter either accepting, declining, or countering their offer. In other words play the game by the "unspoken rules of procedure."

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Just so I'm clear. SOL falls from the last time payment on an account was sent in, right? So if for example the last time I did send a payment on on the card was in August of 08, it would fall under it? Or is it from when the original holder closed the account?

I'd always contact the other side if they ask in writing. I'm not budging and it will be a polite go pound sand and you just wasted your time. However, the courts like to have parties work things out, or at least put on a show that they are at least trying.

Your under no legal obligation, usually, to work with the other side, but no reason to not play along. It's the same reason I believe you should send an intent to sue letter prior to suing. You know, or have a pretty good idea, the other side will not respond. However, you can say I tried and they left me no option but to sue.

You want to appear like your willing to cooperate. In reality you can be hell to deal with and their worst nightmare, but you want to appear not that way.

Call them up, listen, say I'll get back to you, and then send them a certified letter either accepting, declining, or countering their offer. In other words play the game by the "unspoken rules of procedure."

Nice suggestion, thanks! And if I'm correct in my assumption on SOL, should I mention that to them on the phone to attempt to even prevent the court date? Like I said last time against them I went in, they went on and on and I mentioned that and it ended with them stating they will have to look into it and voila!
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The statute of limitations starts the first date the debt becomes delinquent or in default. So the day after the payment is due and the payment not being made.

Yeah I guess mention it. When I mentioned it to a law firm in a case they laughed and said the debt was inside the statute of limitations and they do this everyday and the suit was filed well inside the statute of limitations. You know in one of those real nice tones but calling you stupid at the same time.

So I just said, I guess the statute of limitations for a credit card debt in Arkansas applies to everyone in the state except you. I won and then sued them for filing suit on a time barred debt.

So you can throw it at them but don't expect it to make them stop dead in their tracks. To be fair, the statute of limitations are not always as clear cut as they appear. There are things that toll the statute of limitations and there are usually different time frames for different type of cases. The most common being a written contract vs an open or open book account. Your situation seems to fall into that gray area.

Do some research on Ex post facto. Generally speaking the Constitution forbids ex post facto laws, but I'm not sure this would fall into such catagory. However, it would be worth some research.

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Under contracts, the SOL in AZ is 6 years, but it is 4 years if the contract was executed out of state. Open ended accounts are 3 years.

Arizona Revised Statutes

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

Take a look at Capital One Bank USA, NA v Gregorich, they lost because the cardholder agreement specifies VA law. VA has a 3 yr SOL. Check my posts, there are six states that kind of get around this and impose their own. WA is one.

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Under contracts, the SOL in AZ is 6 years, but it is 4 years if the contract was executed out of state. Open ended accounts are 3 years.

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

Take a look at Capital One Bank USA, NA v Gregorich, they lost because the cardholder agreement specifies VA law. VA has a 3 yr SOL. Check my posts, there are six states that kind of get around this and impose their own. WA is one.

Ok, sorry. So you're saying it's 3y, right? /confused
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You can get rid of this if you would just do some research and find out the date of the last payment you missed. The day after is when the clock starts. Give us that date. If suit was filed more than three years later, you should be able to get this dismissed. A copy of the statute from VA, a copy of whatever statement shows the payments date, and a copy of the dated complaint. Attach them to a motion to dismiss and send it off.

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