MCM/Midland - Received Settlement Letter/Case In Court (sort of)

[ThickBurger]

Got a letter from MCM (Midland Credit Management) yesterday. OC is CitiBank Credit Card. Account was charged off in summer of 2006. Amount they say I owe is over $6,000, but they are willing to settle for $4,000. This is the first communication from Midland on this account. I am located in Florida (SOL = 4/5 years)

I looked up myself in my county court system, and it appears they are trying to serve me, and have been trying since 2009! They have tried to serve me 5 times now but have failed.

I’m not trying to hide from anyone, my address on my Credit Report is correct, License is up to date, etc.

There is nothing in the letter stating any litigation. Just a simple you owe this much, but we’ll settle for about 25% less.

Now should I DV this letter? Should I go to the clerk and pick up the papers?

The pickle in this one is this…. Back in ’09 when they apparently filed court papers, I was within SOL, but now, I am not. I heard from a friend that there is such thing as “due diligence” and they only have 6 months or so to serve someone? It’s been almost 3 years in my case and they have not served me. Can I use this is a defense or just get the case dismissed, then when they re-file it will be out of SOL.

Another interesting thing, in the letter, it refers to "my account" -Like I admitted it was my account or something. No where on this letter does it say I have 30 days to dispute or request validation.

Thoughts?

Edited January 18, 2012 by ThickBurger

[thomassl]

When they filed the court papers on you, did your file at the courthouse state that you received a default judgment?

[ThickBurger]

When they filed the court papers on you, did your file at the courthouse state that you received a default judgment?

I don't think so.

I haven't look or picked up those papers. I can only see what is public record online... Basically the plaintiff filed the case, and tried to serve me 5 times. Every time (5 times total, over a span of 3 years, about every 7-8 months) it shows "Summon To Appear Unserved - Pretrial Conference canceled"

[Coltfan1972]

I doubt they have been trying to serve you that long without getting approval from the court or refiling the case. It's 120 days for federal and most states have the same or maybe 180 days for a time limit to serve.

They can't just say they are trying to serve you for that long simply so the statute of limitations can toll. If that was the case every creditor could just toll the statute of limitations by suing and then saying they are trying to serve the person.

I'd do so more digging. It might still be on the courts website or even docket, but don't see how they would be getting by with claiming to attempt service for that long.

Your questions? Only you can answer that. As much of a fight as I like, it appears this thing is getting close to the statute of limitations or has passed. A case is a ton more fun to fight when you have a statute of limitations affirmative defense in your back pocket.

Not sure how good of an idea it is to go pick up the papers. Like you said, you're not hiding. Just depends on how much you enjoy the fight. I know one thing, once it is out of statute I'd be taking out a billboard addressed to Midland letting them know where I was located.

[KentWA]

Yes, you want to DV them and clearly state in your dispute that this is the first communication you have received from them. They are then on notice that they have to answer your DV or go away. The 30 day time limit in the FDCPA says 30 days after you receive it, not 30 days after they mailed it or pretended to mail it, etc.

[ThickBurger]

Thanks for the feedback guys...

Coltfan - Can I just go to court and have the case dismissed due to lack of service in over 3 years?

[BV80]

Thanks for the feedback guys...

Coltfan - Can I just go to court and have the case dismissed due to lack of service in over 3 years?

Try contacting the FL Bar Association and ask about their Lawyer Referral Service. In my state, if I request the name of an attorney in my area, they'll provide a name, and that attorney will give me a consultation either for free or for a reduced rate. Some attorneys will even provide that consultation over the phone. An attorney could tell you if the SOL has been tolled during those times they filed but failed to serve you.

If the SOL was not tolled at those times, the debt could be outside the SOL, and you could tell Midland to eat dirt.

[legaleagle]

They will probably invoke Citibank's SOL in South Dakota, which is 6 years. Here we go again, substantive versus procedural. Anybody know how FL courts rule on choice of law?

[Coltfan1972]

Thanks for the feedback guys...

Coltfan - Can I just go to court and have the case dismissed due to lack of service in over 3 years?

No. You have to file a motion and most likely get a hearing. Very few things that deal with court are going to be as simple as just showing up and asking. Rest assured the other side will have a different version of what happened and the law in general.

I sued a collector and they claimed they were not subject to the FDCPA. However, their letters all had the FDCPA required notices, they claimed in court papers they followed the FDCPA and they disclosed the name of their FDCPA compliance officer. But they were not subject to the FDCPA they argued

So don't expect what is cut and dry to actually go smooth. The other side will come up with something, no matter how stupid or frivilous.

[BV80]

They will probably invoke Citibank's SOL in South Dakota, which is 6 years. Here we go again, substantive versus procedural. Anybody know how FL courts rule on choice of law?

From the case law I've read, FL courts apply the "most significant relationship test" between states. But, as of yet, I don't recall ever reading of a case where Midland (or any other JDB) has tried to apply the SOL of the governing state of the OC.

[ThickBurger]

Well I did some research and here is what I found....

Florida Rules of Civil Procedure

RULE 1.070 PROCESS

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

So it looks like I can file a motion to dismiss the case. But how do I do that without getting served in the process?

[sahm1998]

They will probably invoke Citibank's SOL in South Dakota, which is 6 years. Here we go again, substantive versus procedural. Anybody know how FL courts rule on choice of law?

This is the statute on choice of law. In the case law that I've read, the judges allow the use of this statute only if the forum state's SOL is shorter than Florida's SOL. Looking at using it myself since my OC is in Delaware, which will probably make them unhappy:)

The 2011 Florida Statutes

Title VIII

LIMITATIONS Chapter 95

LIMITATIONS OF ACTIONS; ADVERSE POSSESSION View Entire Chapter

95.10 Cause of action arising in another state.—When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.

History.—s. 18, ch. 1869, 1872; RS 1295; GS 1726; RGS 2940; CGL 4664; s. 5, ch. 74-382.

[nascar]

Now should I DV this letter? Should I go to the clerk and pick up the papers?

Neither. You may not be hiding, but you don't need to shoot up flare, either.

[ThickBurger]

I know this thread is old - but I just want to update this.

I hired an attorney to file a motion to dismiss this case based on lack of service. Midland folded a few days before the trial, and moved the court to dismiss the case without prejudice.

So now, I am officially out of the FL SOL.

Midland keeps sending me demand letters to pay. Should I send a C&D all contact?

I know if they file suit again it should be a violation of the FDCPA - so we'll see what happens.

Thanks,

TB

Edited July 13, 2012 by ThickBurger
Spelling

[ladyhunter]

If Midland filed suit before Oct, 2010, you have another great defense:

Florida Statute 559.715. In Oct, 2010, it was amended to read differently, but if Midland acquired the alleged debt prior to that date, that law comes into play.

Back then, the law stated a JDB had to let you know within 30 days of their acquisition of the debt that they had it. If not, it is unbillable and uncollectable. They could sell it to another JDB, but that would be the only legal recourse they had.

In Florida, they have 6 months to move the case along or it is dropped as a result of "lack of prosecution." The SOL on a credit card in FL is 4 years, not the 5.

Once the lawsuit is filed, the SOL is tolled (suspended), so to be sure of the SOL in your case, you would have to take the first payment you defaulted on (usually 30 days after your last payment) and start counting 4 years. However, if they filed suit within that 4 years, you would have to add back the number of months (6 months) each time they filed. Be accurate with your math to be sure you are out of the SOL.

However, it sounds like you still have the FS 559.715 defense (FCCPA violation).

If it were me, and I was SURE it was outside the SOL with all the suits being filed, one after the other, I would first DV their letter and dispute the debt with the CRAs. If there is an active lawsuit (probably not if they sent you a dunning letter), I would then go and pick up the paperwork and push them into moving the lawsuit or dismissing it. I would definitely countersue, using FS 559.715 that they never had legal standing to bill or collect on the alleged debt (misrepresenting the legal status of a debt) and never had standing to bring any lawsuit, let alone 5 or 6. . . . but that's me.

[ThickBurger]

LadyHunter... So you are saying the SOL could not be applied yet?

Last Payment October 2006.

Case was filed March 2009.

Case dismissed w/o prejudice Feb 2012

Since the case was dismissed, they would have to refile (new case) So it's like that case doesn't exist, or am I mistaken?

2006 to 2012 is 6 years. Or do I have to subtract the time the case was 'active' ?

[ladyhunter]

Was the case dismissed by the court or voluntarily by MCM?

If it was voluntarily dismissed by MCM, then it is as if the lawsuit was never filed and the SOL continued running.

If a judge dismissed the case (i.e., lack of prosecution), then that would "toll" or suspend the SOL while the lawsuit was pending.

If there had been no lawsuit filed, your SOL was up 11/2010 (4 years from defaulted payment).

If the lawsuit was dismissed voluntarily by MCM, your SOL is up.

By what you said, if the lawsuit was dismissed by a judge, your SOL still has approximately another year to go from now unless they refile a lawsuit, which would re-suspend the SOL again.

[ThickBurger]

Was the case dismissed by the court or voluntarily by MCM?

If it was voluntarily dismissed by MCM, then it is as if the lawsuit was never filed and the SOL continued running.

If a judge dismissed the case (i.e., lack of prosecution), then that would "toll" or suspend the SOL while the lawsuit was pending.

If there had been no lawsuit filed, your SOL was up 11/2010 (4 years from defaulted payment).

If the lawsuit was dismissed voluntarily by MCM, your SOL is up.

By what you said, if the lawsuit was dismissed by a judge, your SOL still has approximately another year to go from now unless they refile a lawsuit, which would re-suspend the SOL again.

Thank you for the clarification.

Midland voluntarily dismissed the suit even before my attorney could argue the case in court.

Cease & Desist letters here we come! Any suggestions/links on what a good C&D letter should sound like?

Thanks again!

[ladyhunter]

My favorite:

I refuse to pay this debt. Do not communicate with me further.

Signed,

An informed consumer

[BV80]

Be sure to add "I dispute this debt and do not owe it". It leaves no doubt as to your position.

[legaleagle]

Any suggestions/links on what a good C&D letter should sound like?

Dear Midland:

Be advised that in the matter which is the subject of your failed lawsuit, I make the following request per the FDCPA. Do not contact me in writing, by telephone, telegraph, email, smoke signals, carrier pigeon, telegram, drum signals, (King Kong) messages in a bottle, Fedex, UPS, text messages, semaphore, light signals, (Navy) western union, pony express, or any other means of communication.

I do not wish to hear from you in any manner until and unless you grow a pair (and a brain) and stupidly decide to take me back to court, in which case I will refer you to a medical supply house where you may purchase a sling for your a$$. I understand that you may have difficulty with word which have more than four letters, so here are a couple I'm sure you'll understand. F*** you. Now where have we heard that before?