Midland/Arizona

[Beergoggles]

I just found this and figured it might help me get help, sorry folks for not posting this before. (darn newbies! LOL)

1. Who is the named plaintiff in the suit?

Midland Funding LLC (2 times)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Jerold Kaplan Law (both cases)

3. How much are you being sued for?

5k, on one and 4kish on the other plus fees/costs/interest

4. Who is the original creditor? (if not the Plaintiff)

Allegedly Chase/Target

5. How do you know you are being sued? (You were served, right?)

Served twice for 2 different cards

6. How were you served? (Mail, In person, Notice on door)

in person twice

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

yes

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

none, they might have called but I do not answer restricted or unavailable numbers, I do not open any mail that only shows a return address and no company name those go right into the shredder

9. What state and county do you live in?

Arizona

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

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

Statute of Limitations on Debts

6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served

Answered (on 19th day of 20(denied ever hearing or having any contact and stated I owed them $0)

They filed for default

I received their default motion and their motion to disclose on the same day

Lawyer did a hard credit check on me

Receive a mediation date from court

Received a COUPON from lawyer to settle for 30% off

Then served again for second case ( word for word exact same affidavit except for original creditor and legal spe******ts from Minn

Received a motion to let their attorney appear by telephone from San Diego

Received another letter trying to settle

Mediation is withing 2 weeks

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

no

15. How long do you have to respond to the suit? (This should be in your paperwork). 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?

20 days all is good here

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

a Affidavit and cc agreement

Thank you in advance for any input and Thank you to those who have already answered some questions in the past.

BG

[1stStep]

OK...I think it's time to play hard ball- file an FCRA suit against the attorney....

[Beergoggles]

I am not going to file a suit unless I know 100% I will win. I want to know if I should just stay quiet and hit them in court with hearsay. Do not ask for any more information from them, after all it is a multi billion dollar company suing me you would think they would have all their poop in one pile. Would the court look down on me for staying quiet until trial? All they are offering up as evidence is the lame affidavit and a barely legible cc agreement from 96

[1stStep]

They can't use a CCP96 in an Arizona court...how far along are you in disclosure?

[Beergoggles]

they did not ask me for anything special. they just stated they are offering the cc agreement and affidavit as evidence, and they tell me to bring any papers supporting them. they say I entered into a contract with midland funding/breach of contract

[Beergoggles]

They can't use a CCP96 in an Arizona court...how far along are you in disclosure?

Whats a ccp96?

[1stStep]

So your first item in a request for production should be the alleged agreement...who's the OC and when did the account supposedly default? There might be away to shake things up.

Edited January 30, 2012 by 1stStep

[Beergoggles]

I am asking if I really have to ask for them to produce anything. If all they have is a bogus affidavit and a cc agreement should I just let it ride and when they try to admit it as evidence I object and call them on hearsay or MUST I do this before trial? Like I said above this is a multi billion dollar company that does this for a living they should have all their poop in one pile. If all they have and want to enter are those 2 items why should I ask for more?

[1stStep]

I would...you want to start painting them into a corner... if they allege a breach of contract, then ask the to produce a contract.

[BV80]

You must attack their claim as the creditor. They have to prove they own the debt...a valid assignment showing the OC sold your specific account to Midland. BTW, the 1996 agreement is not the agreement they should have supplied. The applicable agreement is the one that was in effect when the account went into default.

[1stStep]

Additionally, if you defaulted in 1996, then this alleged debt is way outside AZ SOL.

[usagi555]

I would...you want to start painting them into a corner... if they allege a breach of contract, then ask the to produce a contract.

This.

I know, it seems weird saying "Hey, Mr Plaintiff, please provide me with all of the evidence that you need to fry me in the courtroom," but you have to consider all of the rules that you are using to ask them for that stuff. If it's going to take them 60 or 80 days to provide the evidence, you might just be able to have it all precluded because you asked for it in discovery. If you don't ask, well, they can wait until the the very end, then list it on their disclosure statement. If you ask for all of the account statements and they object, but then want to introduce them at trial, you get to use their objection against them.

Oh, and just because they are a multi billion dollar company doesn't mean that they are pros when it comes to feces consolidation. They have a business model that depends on people who don't fight. Those of us on here aren't the type they are going to spend a lot extra on if they can help it.

[Beergoggles]

ok so I need to file a...? motion to produce?

[Beergoggles]

I am confused. Do I need to file a motion or just write a letter to the attorneys for plaintiff for discovery? Been looking for a sample motion to produce, if that is what I need to file.

[Beergoggles]

This.

If you don't ask, well, they can wait until the the very end, then list it on their disclosure statement. If you ask for all of the account statements and they object, but then want to introduce them at trial, you get to use their objection against them.

They already sent me a disclosure list and it has the cc agreement and the affidavit thats it. on the bottom of the letter it says "investigation continues, Plaintiff is searching its records for additional statements of account regarding this matter and will update its disclosure statements when these statements are found.

I ask again should I just lay low and hit them with hearsay if all they have is the affidavit and cc agreement? Why make it more complicated than it is when they are producing nothing to prove their case. Just asking, trying to keep this simple and hit them at trial with bogus evidence.

[usagi555]

Midland doesn't have the goods, and you can put them in a position where they have to produce them within 40 days or you can have all sorts of fun. Propounding some discovery requests upon them will either prompt them to make some really dumb objections or force them to admit that they don't actually have any evidence. If you are in AZ superior court, you don't need leave of the court. You look at examples of document requests on here for some ideas, and you tailor what you see to your needs. You draft up your requests, make sure they are good to go, and you send them to the other side's attorneys. You may or may not need to send electronic copies - that varies from state to state.

You need to know AZ's rules of civil procedure:

http://weblinks.westlaw.com/toc/default.aspx?Abbr=az%2Drules%2Dweb&Action=ExpandTree&AP=N090D27A070CB11DAA16E8D4AC7636430&ItemKey=N090D27A070CB11DAA16E8D4AC7636430&RP=%2Ftoc%2Fdefault%2Ewl&Service=TOC&RS=WEBL12.01&VR=2.0&SPa=AZR-1000&fragment#N090D27A070CB11DAA16E8D4AC7636430

Look at the part that talks about discovery. The rule for document requests is rule 34.

[BV80]

They already sent me a disclosure list and it has the cc agreement and the affidavit thats it. on the bottom of the letter it says "investigation continues, Plaintiff is searching its records for additional statements of account regarding this matter and will update its disclosure statements when these statements are found.

I ask again should I just lay low and hit them with hearsay if all they have is the affidavit and cc agreement? Why make it more complicated than it is when they are producing nothing to prove their case. Just asking, trying to keep this simple and hit them at trial with bogus evidence.

You don't know if they have anything else or not. Since they stated they're searching their records, they've left that possibility open. As Usagi stated before, if you don't request any documents, they can surprise you at the hearing. Just in case they do have anything else at all, I'd want to see it before then.

[Beergoggles]

Ok I found a nice discovery request from brjmhome6 so I used it. Do I need to file this with the court?

here is the discovery request I am using

IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS

ASSOCIATE JUDGE DIVISION

STATE OF MISSOURI

MIDLAND FUNDING LLC, XXXXX )

)

) Case No: 99999

Plaintiff, ) Division: 99

)

vs )

)

JANE J DOE )

)

Defendant. )

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO

PLAINTIFF MIDLAND FUNDING LLC

COMES NOW Defendant JANE DOE, pursuant to Civil Rule 58.01, and requests Plaintiff, Midland Funding LLC to produce the following documents for inspection and copying at the law offices of Plaintiff’s attorney, ADDRESS HERE within thirty (30) days or as counsel may mutually agree.

DEFINITIONS

The following definitions are to be used in responding to the following interrogatories.

A. “Plaintiff,” means MIDLAND FUNDING LLC, ASSIGNEE OF XXXXX, or any agent, employee, officer, director, or any other person acting on its behalf.

B. “Defendant” means, JANE DOE an individual.

C. “Document,” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

D. “Credit Application”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff and Defendant or Defendant and XXXXXX.

DOCUMENTS TO BE PRODUCED

1. ALL documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement described in Plaintiff’s Petition, including letters and correspondence.

2. The alleged credit application from Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999 bearing the defendant’s signature;

3. The alleged credit agreement from Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999 that states interest rate, grace period, terms of repayment, et cetera;

4. Itemized statements or credit card statements from Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999 that demonstrate how the alleged amount of $1000.00 was calculated;

5. A contract, agreement, assignment, or other means demonstrating that Midland Funding LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999;

6. Letter(s) sent to defendant by Midland Funding LLC, demonstrating an attempt to collect on the alleged debt, Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999;

7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

8. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999;

9. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

10. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

11. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

12. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Numbers (MIDLAND Acct#) 99999999 and (XXXXX Acct#) 999999999999999;

Jane J. Doe

By: _______________________________

Jane. J. Doe, Defendant

Your address & phone number

[Beergoggles]

Thank you brjmhome6 for the info

[1stStep]

You're on the right track...once you send a request for production, they're on the clock to produce it...I think they've got 40 days to do so.

Be careful when using the template above - make sure to tailor it to your case.

In your shoes, I'd ask for the alleged contract and a complete and legible copy of any cardholder agreement (it may have an arbitration clause - and if they are suing for less than $5k, you may be able to ask for the contractual arbitration and get the case out of court).

[usagi555]

Discovery requests are typically not filed with the court. You need to know the rules on that definitively, however. One thing that you may need to look at is if filing a certificate of service for your discovery requests is required, optional or frowned upon.

I know that this is going to seem like I'm saying you should do the opposite of what I said earlier, but you should slow down enough so that you understand exactly why you are asking for each document. You have been thrown into a position where every action that you take should should be deliberate and done for specific reasons, but you haven't spent 3 years having Esq added to the end of your name. At the same time, some things should be done ASAP. There are some conflicts that arise because of that. At this point in time, if you can articulate why you want each document, I would say you're good to go. "It was referenced or implied in the complaint" should be good enough for most things.

[legaleagle]

1, 6, and 8-13 will be objected to, they really aren't very productive. If you want to file a motion, file one to consolidate the two cases into one. Same plaintiff and defendant? Courts don't like this "we're going to sue you six times in a row" stuff.

they say I entered into a contract with midland funding/breach of contract

Did they really say this? You never entered into a contract with Midland, that goes out the window. Make them produce it.

[Beergoggles]

I just called the court they looked into my case and told me I can just hand deliver the discovery request to them in person at mediation which is real soon. (a week or so) gives a bit more time to tweak it just right. Thanks everyone.

[Beergoggles]

Question regarding the motion to allow witness to appear by telephone. I received a motion to allow their attorney to appear by telephone because they are in San Diego. But their attorney is here in Phoenix. Then there is another page stating

"Upon the motion of Plaintiff herein, and in good cause appearing it is ORDERED that the plaintiffs counsel be allowed to appear on behalf of plaintiff IT IS FURTHER ORDERED that plaintiff be allowed to appear telephonically for the mediation scheduled for DATE"

There is no date, no signature from the judge and the motion and order are dated the same day. Is this legit?

[BV80]

Question regarding the motion to allow witness to appear by telephone. I received a motion to allow their attorney to appear by telephone because they are in San Diego. But their attorney is here in Phoenix. Then there is another page stating

"Upon the motion of Plaintiff herein, and in good cause appearing it is ORDERED that the plaintiffs counsel be allowed to appear on behalf of plaintiff IT IS FURTHER ORDERED that plaintiff be allowed to appear telephonically for the mediation scheduled for DATE"

There is no date, no signature from the judge and the motion and order are dated the same day. Is this legit?

It could be if you file a motion, you have to have an order ready for the judge to sign just in case he grants the motion. Just because they provided an order doesn't mean the judge has granted it yet.