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Being sued by Midland Funding/Gamache & Myers


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I’m new at this, so please bear with me.

1. Who is the named plaintiff in the suit? Midland Funding

2. What is the name of the law firm handling the suit? Gamache & Myers

3. How much are you being sued for? $985.91 plus interest from March 2011 and all court costs

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

5. How do you know you are being sued? (You were served, right?) served summons by sheriff’s office

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I can recall

9. What state and county do you live in? Missouri, McDonald

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I don’t know that I ever have

11. What is the SOL on the debt? To find out: 10 years

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

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? The initial hearing was held 1/17/12, and the judge ordered COUNCIL TO SUBMIT CONFLICTS WHEN READY FOR SETTING

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. An affidavit signed by someone from Midland Credit Management, Inc. and an account statement that is clearly stamped THIS STATEMENT WAS NOT ISSUED BY THE ORIGINAL CREDITOR.

When I found out I was being sued, this site was recommended by a friend, and I got lots of great information. As a matter of fact, with the information here, I was able to file my Answer, Affirmative Defenses, Request for POD, and Motion to Strike Affidavit without too much help.

Here’s their response to my 1st request:

1. Plaintiff to produce for inspection and copying the following described documents and tangible things within thirty (30) days of service of this request.

RESPONSE: All relevant, non privileged documents are attached.

2. All business records of …., including, but not limited to, signed contracts, credit agreements, itemized account statements showing all charges incurred including interest and fees imposed on the account, and all purchase and monetary receipts applied to the alleged account.

OBJECTION: Objection as to the signature as it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the objection, Plaintiff states: The basic elements of a contract are offer, acceptance and consideration to support the contract. Citibank (South Dakota), N.A. v. Wilson, 160 SW 3d 810, 813 (Mo. 2005). Acceptance of an offer need not be made by spoken or written word. Id. It is the acceptance and use of a credit card offered by a credit card company which creates a contract. Subject to said objection, see application and statements of account attached. To the extent additional documents are obtained, Plaintiff will timely supplement.

3. A contract, agreement, assignment, or other means demonstrating that MIDLAND Funding LLC has the authority and capacity, and is legally entitled to collect on the alleged debt.

RESPONSE: Plaintiff will timely supplement.

4. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt; Defendant reserves the right to amend and/or add additional documents that may become applicable and/or available at a later time.

OBJECTION: Overbroad, vague, unduly burdensome and seeks information protected by the attorney client privilege and the attorney work product doctrine. Subject to said objection, see application and statements of account attached. To the extent additional documents are obtained, Plaintiff will timely supplement.

The application they are referring to looks like a variation of a request from me for a JCPenney credit card. I say variation, because it’s only a partial page. It doesn’t appear to be authentic, and just shows that a card was requested, not that it was ever approved, or even used.

The account statement they are referring to shows transactions on it dated 06-27 and 07-17, but no year. The 06-27 says it was for FUN FAMILY REWARDS which hardly proves legitimate use of the card since it is a JCPenney exclusive membership program, and the 07-17 says it was for PAYMENT.

The account statement attached to the petition is from MCM (Midland Credit Management, Inc), and is stamped with THIS STATEMENT WAS NOT ISSUED BY THE ORIGINAL CREDITOR

Now I need help to know what to ask for in my 2nd Request for POD. Do I reiterate my requests in the first discovery request, or do I need to address their objections in my 2nd request?

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3. A contract, agreement, assignment, or other means demonstrating that MIDLAND Funding LLC has the authority and capacity, and is legally entitled to collect on the alleged debt.

RESPONSE: Plaintiff will timely supplement.

They didn't provide a bill of sale from GE to Midland? Even if they did, it probably didn't reference your name or account number.

Regarding their objection, they showed what it takes to prove a contract. So??? What did they present to prove you had an account with GE that proves a contract existed in the first place? What did they present to prove they own the ALLEGED account with GE that gives them the right to sue?

It might help if you'd post the allegations in the Complaint.

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But, do I reiterate my requests in the first discovery request, even though they have objected to them? Or do I need to address their objections in my 2nd request?Or, since they have objected, do I leave off those, and add new ones?

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They didn't provide a bill of sale from GE to Midland? Even if they did, it probably didn't reference your name or account number.

Regarding their objection, they showed what it takes to prove a contract. So??? What did they present to prove you had an account with GE that proves a contract existed in the first place? What did they present to prove they own the ALLEGED account with GE that gives them the right to sue?

It might help if you'd post the allegations in the Complaint.

No, they didn't provide a bill of sale.

The only documents included were the documents listed in my initial post.

What do you mean by "post the allegations in the Complaint"?

Edited by lhenry35
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But, do I reiterate my requests in the first discovery request, even though they have objected to them?

No, that is improper procedure. Once an objection is filed you should have a meet and confer with them and if that does not resolve the matter you file a motion to compel.

Or do I need to address their objections in my 2nd request?Or, since they have objected, do I leave off those, and add new ones?

Also improper. You do not send repetitive questions.

Their objection to 4 is valid. Their objection to 2 is crap, they probably learned it from me, I was the first to post this case. The judge got it wrong in part. This offer and acceptance in that case is SD law. They cannot export SD law. (Citi) Where the judge got it wrong in my opinion is when he ruled that it didn't matter because MO has use and acceptance. My argument would be that this is MO banking law, and state banking commissions have no authority over national banks. Therefore, since the state cannot impose its laws, the claim is invalid and neither side can use it. Banks cannot rely upon state laws that do not apply to them. Try invoking a state usury statute and that's exactly what they'll tell you. Can't have it both ways. they'll never expect you to know this stuff.

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yes definitely attack them on standing, that is what I am using against Midland, I filed a motion for summary judgment against them using lack of standing, they opposed, their ridiculous excuse was that since Midland buys in bulk it is infeasible for them to show my specific account on the bill of sale.....I have been advised here what a huge mistake that was on their part and how to ATTACK them again, am sending out my opposition to their oppostiion tomorrow and see how much longer they want to drag out this joke

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But, do I reiterate my requests in the first discovery request, even though they have objected to them? Or do I need to address their objections in my 2nd request?Or, since they have objected, do I leave off those, and add new ones?

A friend just whipped that same law firm in Missouri. Aren't they out of St Louis?? She demanded the Bill of Sale and of course they didn't have one identifying her or her account specifically so they punted, or as they told the judge, we will elect our right to dismiss.

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...meet and confer with them and if that does not resolve the matter you file a motion to compel.

The lawyers are in St. Louis, so they contracted a lawyer here to represent them. From what he told the judge, they haven't provided him with any documents, not even the petition, so he doesn't have a clue what needs to be done, or has been done. He doesn't object to anything I say or ask for in court.

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A friend just whipped that same law firm in Missouri. Aren't they out of St Louis?? She demanded the Bill of Sale and of course they didn't have one identifying her or her account specifically so they punted, or as they told the judge, we will elect our right to dismiss.

Yes, they are out of St Louis

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