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Received Summons in Utah - Johnson Mark LLC for Midland Funding - Help with Defenses


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I just received a summons that has spawned many hours of research and ultimately led me to this board. I have read many previous posts that are similar and it would seem that my best course of action is respond to the summons such that I prevent a summary default judgment from being entered.

However, I have a few questions that all of the previous posts have left me a bit confused on:

First, the summons indicates that "This action is commenced under Rule 3(a)(2) and therefore you need not answer the complaint if it is not filed within 10 business days of service upon you"

Given this and the fact that I have 20 days to respond, I would think it prudent to wait the 10 days to find out if they even bother filing the complaint?

Second, it would seem that my response should deny all knowledge of the debt. As you can see by the complaint below, there is very little information related to what this debt is for. All I know is that it is with Chase Bank.

Now I did formerly have an account with Chase, but I do not know if this is related to my account given that there are no account numbers or anything else to verify that this is mine.

However, according to the form available from the utcourts.gov website:

utcourts.gov/howto/answer/docs/01_Answer.pdf

I can respond to each paragraph with either "I Agree", "I Disagree" , or "I Neither Agree NOR Disagree...Because I Don't Have Enough Information"

So should I Disagree with the claims or "Neither Agree NOR Disagree" which would seem more appropriate given that I simply do not know what this is for based on the information they provided?

Third, what should I state for affirmative defenses? After reading many other posts, I could not make any conclusions on this. I can say that if it IS my chase account, I doubt it is outside of the SOL. Other than that I do not know what I should state for affirmative defenses.

Finally, should I state or request anything else?

-Should I request that the case be dismissed?

-Should I request arbitration? And if so, how?

Any other suggestions?

Please let me thank you in advance. This board has been EXCEPTIONALLY useful. I am so thankful that so many of you take the time to help others with these issues.

Here is the complaint:

---

MIDLAND FUNDING LLC

VS

ME

CLAIMS:

1. Defendant resides in this county and/or signed the contract giving rise to this action in this county. Jurisdiction and venue are proper in this court.

2. Defendant entered into a contract with CHASE BANK USA, N.A. which contract was subsequently assigned to Plaintiff.

3. Defendant has defaulted on the obligation under contract.

4. The amount due and owing to the Plaintiff is $XXXXXX plus accrued interest of $XXXXXX as of February 22, 2012, at the rate of 10.00% per annum less any payments made. In addition, Plaintiff is entitled to recover interest from February 22, 2012, until the date all amounts due are paid.

5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract. In the event Defendant fails to respond to this Complaint, and default is entered, Plaintiff may seek attorney's fees in the amount of $775.00 pursuant to U.R.C.P. 73. Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

6. The Plaintiff may also be entitled to additional attorney's fees for post-judgment services rendered in accordance with applicable law.

7. Further, equity requires Defendant to pay the value of the benefits received.

DEMAND: Plaintiff requests judgment as follows:

A. For damages in the amount of $XXXXXX plus accrued interest of $XXXXXX as of February 22, 2012, at the rate of 10.00% per annum less any payments made;

B. For additional interest from February 22, 2012 until amounts dues are paid at the rate of 10.00% per annum;

C. For reasonable attorney's feels (if any) in the amount of $775.00 pursuant to U.R.C.P. 73;

D. For post-judgment attorney's fees in accordance with applicable law;

E. For costs of court both prejudgment and post-judgment; and

F. Any other relief as the court deems just and equitable.

---

Again, that and the summons is all I received. No exhibits, no contract, nothing. Just 3 pages.

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1. Defendant resides in this county and/or signed the contract giving rise to this action in this county. Jurisdiction and venue are proper in this court.

Admitted in part, as defendant does reside in this county. The remainder of the allegations contained in the paragraph are denied. No "signed contract" was attached. Same will be requested in discovery, as Plaintiff clearly indicates that they have this document.

2. Defendant entered into a contract with CHASE BANK USA, N.A. which contract was subsequently assigned to Plaintiff.

Denied to the extent that the "contract" was not attached. Defendant additionally has no clue as to the business dealings of junk debt buyers concerning assignment.

3. Defendant has defaulted on the obligation under contract.

Denied to the extent that the "contract" was not attached. Additionally, default is a matter for the court to determine, not defendant.

4. The amount due and owing to the Plaintiff is $XXXXXX plus accrued interest of $XXXXXX as of February 22, 2012, at the rate of 10.00% per annum less any payments made. In addition, Plaintiff is entitled to recover interest from February 22, 2012, until the date all amounts due are paid.

Denied. Defendant owes Plaintiff nothing.

5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract. In the event Defendant fails to respond to this Complaint, and default is entered, Plaintiff may seek attorney's fees in the amount of $775.00 pursuant to U.R.C.P. 73. Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

Denied. The term "may be entitled to" is speculative and cannot properly be responded to. Any such terms should be contained in the contract the plaintiff failed to attach. Additionally, Utah statutes do not apply as Chase specifies a Delaware choice of law provision.

6. The Plaintiff may also be entitled to additional attorney's fees for post-judgment services rendered in accordance with applicable law.

Denied. See response to 5.

7. Further, equity requires Defendant to pay the value of the benefits received.

Denied. The confusing language of the paragraph makes it impossible to respond to.

Edited by legaleagle
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True, but that is a matter for them to prove, not for you to disprove. Don't tip your hand. Don't use any defenses. Wait until you get them in front of a judge, then challenge their crappy paperwork. Then it's too late for them to defend. If you use my responses, that will be enough to put them on notice that they are in for a fight. They may give up quickly. JDBs don't like opposition, it's not in their business model. better they quit and move on to somebody who won't even show up in court. It's a money game for them. Here, we make it personal.

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LeagleEagle, A couple things:

In your response to paragraph 1, you said "Samw will be requested in discovery" What is Samw or what did you mean to say? Same?

In paragraph 2, should I really put in the "Defendant additionally has no clue as to the business dealings of junk debt buyers concerning assignment"? I'm not a lawyer, but that line seems a bit out of place?

I am about to file this response this week, is there anything else I should send in with it? At the moment I have no affirmative defenses. Just the responses to the paragraphs. I assume I need to include a certificate of service, but is there anything else?

Thanks again for all the help!

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You do have counterclaims under the FDCPA and Utah Consumer Sales Practices Act (UCSPA). Midland is not licensed in Utah (last time I checked a couple of months ago) under the UCAA Title 12 Chapter 1 and is required to do so. There is no private right of action under UCAA, however it is a violation of both the FDCPA and UCSPA to not be licensed.

They also may not sustain an action in court without being licensed. HOWEVER, this is Utah and the likelihood of them ever being called on it is very low, so they just keep doing it.

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Ouch, I just ran a search and both Midland Funding and Midland Credit Management have secured licenses, so that is out. You want to object to their statement of rule 73 fees, which will force them to document every penny.

You will want to serve them discover very quickly as Johnson Mark is a Default Mill and do not like to fight. Rule 26 limits how many requests you can make based on amount in dispute. However, Rule 26 also requires them to do initial disclosures immediately and I would send a Meet & Confer letter right after you send your answer requesting initial disclosures. They must provide:

(a)(1)(B) a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief, except charts, summaries and demonstrative exhibits that have not yet been prepared and must be disclosed in accordance with paragraph (a)(5);

(a)(1)© a computation of any damages claimed and a copy of all discoverable documents or evidentiary material on which such computation is based, including materials about the nature and extent of injuries suffered;

(a)(1)(D) a copy of any agreement under which any person may be liable to satisfy part or all of a judgment or to indemnify or reimburse for payments made to satisfy the judgment; and

(a)(1)(E) a copy of all documents to which a party refers in its pleadings.

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My original reply to their summons (before I found this board and began to get a clue about how to handle this was) Midland is a junk debt buyer and I dont owe them anything......lol....the court accepted it, go figure.....we are now at the point having been thru discovery and pre trial by phone where I hit them with a motion for summary judgment before they could hit me with one....they opposed, I opposed their oppositin....lack of standing is my defense since they have provided nothing that will stand up in court....best of luck, let us know how things are going....I wont give you advice because I am not among the onboard experts....they will teach you how to rip Midland a new one:)++

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In your response to paragraph 1, you said "Samw will be requested in discovery" What is Samw or what did you mean to say? Same?

Yes, I can't type very well. I would never make a good secretary without spellcheck. I don't have legs like Richard Diamond's secretary, either. Hope not, I'm not a girl. Bet nobody knows who played her, or even who Richard Diamond was. Clue: TV show. She's famous, wasn't back then, this was her first job.

In paragraph 2, should I really put in the "Defendant additionally has no clue as to the business dealings of junk debt buyers concerning assignment"? I'm not a lawyer, but that line seems a bit out of place?

It's a bit snarky, but it makes the point. I've sent worse and have gotten worse from lawyers. As long as you don't use inflammatory language you're okay.

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I just checked with the clerk and it would seem nothing has been filed by the plaintiff and it has been more than 10 days. The summons indicates that as this was filed as a Rule 3a2, the plaintiff has 10 days to submit their complaint to the court. Do you think I should still file the response give that the court is unaware of the action?

Thanks again for all the help.

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I just checked with the clerk and it would seem nothing has been filed by the plaintiff and it has been more than 10 days. The summons indicates that as this was filed as a Rule 3a2, the plaintiff has 10 days to submit their complaint to the court. Do you think I should still file the response give that the court is unaware of the action?

Thanks again for all the help.

JM filed on me, it took more than 10 days to show up though.

What is the opening and last payment date of the alleged debt and have you looked to see if Chase had a arbitration clause?

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How can they file after 10 days though? Doesn't that violate the laws of civil procedure in Utah?

Also, I don't even know if this is my chase debt or not. There is no account number or anything else to identify it in the complaint. Nor is there a contract, so I don't know if there is an arbitration clause.

However, if I do eventually get a copy of the contract and find that there IS an arbitration clause, how can I best use that to my advantage?

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How can they file after 10 days though? Doesn't that violate the laws of civil procedure in Utah?

Also, I don't even know if this is my chase debt or not. There is no account number or anything else to identify it in the complaint. Nor is there a contract, so I don't know if there is an arbitration clause.

However, if I do eventually get a copy of the contract and find that there IS an arbitration clause, how can I best use that to my advantage?

They may have filed it but it has not hit their system yet, sometimes they are backlogged. My summons said to wait 13 days before caling. They wait as long as they can because they want you to not respond so they will get a default judgment.

I had a similar situation and they gave no information other than an OC, so I found an agreement with an arbitration clause and sent it in to the court compelling arbitration.

The judge granted the motion to compel arbitration saying that either side MAY initiate arbitration. That was over 6 months ago and I have not heard a thing.

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Its actually been 16 days and the clerk does not have anything on file. I wonder, should I submit a motion to dismiss based on them not filing the complaint along with my response?

Good question. I would prepare your answers and an arbitration election just in case, you don't want to be caught off guard.

Any other opinions out there?

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I don't know the open date or last payment. As I said, I don't even know if this is my debt or not. I had a chase account a few years ago, but I do not have any documentation with me on that account. I'm not sure if this is related to that account or not.

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I don't know the open date or last payment. As I said, I don't even know if this is my debt or not. I had a chase account a few years ago, but I do not have any documentation with me on that account. I'm not sure if this is related to that account or not.

You should get a copy of your credit report, it will show your old Chase Card, it it was charged off and or sold, all the dates you need and if the collection agency is listed on your report.

Even if it isn't the same debt, you can use the info you find on your report. Here is the real free report site.

https://www.annualcreditreport.com/cra/index.jsp

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You did not say which court you are in, but as backlogged as they are becoming I know some are beginning to miss deadlines. It may be worth your while to actually go down there and attempt to file a response and if there is nothing on file then write down the name of the clerk you talked to and the date and time.

All that being said if they did not actually file, I would file an FDCPA action against them for not filing. My argument would be that they simulated legal process by not following through, or used deceptive means to coerce you into payment.

The attorney's are the worst and are responsible for over 50% of the FDCPA case law in Utah. There have been several name changes in the firm over the years due to a disbarment or two.

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  • 10 months later...

how did this end up? I am dealing with a similiar situation in Utah. The company is different. The plaintiff is liberty acquisitions servicing. But they sent me a 10 day summons and a complaint. Attached to the complaint was terms of agreement for the alleged credit card. The card was a credit card for use in a specific store. The SOL on open accounts in Utah is 4 years and this was just over 4 years ago since the alleged charge-off date. But I have been told this is a pretty shaky defense. Anyone familiar with Utah law able to suggest possible defenses including the statute of fraud?

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how did this end up? I am dealing with a similiar situation in Utah. The company is different. The plaintiff is liberty acquisitions servicing. But they sent me a 10 day summons and a complaint. Attached to the complaint was terms of agreement for the alleged credit card. The card was a credit card for use in a specific store. The SOL on open accounts in Utah is 4 years and this was just over 4 years ago since the alleged charge-off date. But I have been told this is a pretty shaky defense. Anyone familiar with Utah law able to suggest possible defenses including the statute of fraud?

 

Start a new thread.

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