Sued by Midland Funding in Ohio

[skoal17]

1. Who is the named plaintiff in the suit? - Midland Funding LLC Doing Business in Ohio as Midland Funding DE LLC

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

3. How much are you being sued for? Around 1800

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

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

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

7. Was the service legal as required by your state? As far as I know

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? I had no correspondence with them

9. What state and county do you live in? Hamilton County Ohio

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Around April of 2009 I believe

11. What is the SOL on the debt? To find out: 6 Years in Ohio

Statute of Limitations on Debts

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). Suit Served

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? I have 13 days remaining

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent the front and back of an old statement with a final balance

[skoal17]

In this post I will write the "facts" that came in the suit.

3. Defendant opened an account with Chase Bank USA, N.A. or its predecessor in interest. A copy of the account statement is attached as Exhibit "A".

4. Plaintiff has purchased Defendant's debt, and is entitled to all rights as owner.

Then following that I have a section on Midland's efforts to resolve the underlying Obligation which are all numbered. Do I need to respond to those in my answer?

Then following that I have the Claim for Relief

9. There is now due and owing from the Defendant the amount of XXXX.XX, as well as interest of XX.XX, for a total balance of XXXX.XX

10. Plaintiff has made a demand on the defendant for repayment of the account but defendant has failed and refused to pay balance due.

WHEREFORE, Plaintiff prays for judgment against defendants as follows,

a)For the unpaid balance of XXXX.XX

Statutory interest on the balance of XXXX.XX from the date of judgement.

c)Costs of suit; and

d) Such other relief as this court may deem just and proper.

I've been reading the forums a lot before I decided to post this that way when I got responses on how to move forward I would have some idea of what you were talking about. I would appreciate your help on how to proceed as I am very new to this.

[skoal17]

In addition the statement they attached doesn't even have the full account number on it. Just the last four with the rest blacked out. I'm not sure if that matters or not.

[kittymamma]

Hi skoal, I too am in Ohio battling with Midland..I am in Clermont county.....the first thing you need to do is ANSWER THAT SUMMONS!!!! do NOT let them get a default!!!

I got mine in December, the statute of limitations in Ohio is 6 years BUT Chase goes by their state so it is only 3 years, that is why they filed against you now, they wait to file till shortly before the sol runs out.

What I did was answer with a general denial....I just said I had no idea who Midland was and did not believe I owed them any money whatsoever. You can go into affirmative defenses and such but Coltfan will tell you that you really dont need to do that, you wait to see what they have during discovery, and I can tell you from personal experience that Midland wont have crap.....unauthenticaled hearsay. You can ask for dv when you answer, I did and they sent me a bill of sale that did not have my name or account number on it, and some computer generated statements....they need more than this......

Get that answer filed and ask for discovery, our resident experts here can walk you thru that step by step....the best way to deal with Midland as they never have the documents they need is to first see what all they give you during discovery and then hit them on standing, that is what I did and am doing, I am in the final stretch with them and believe I will win....they can be beat, they rely on defaults DO NOT LET THEM DO THIS!!!!! Fight the creeps!!!

[kittymamma]

Are you dealing with Javitch Block and Rathbone also??? Their young attorneys are not among the brightest

[skoal17]

No I am not. The attorney is someone from Midland Funding LLC. There is no law firm noted anywhere in the complaint.

[legaleagle]

You may want to invoke arbitration per the cardholder agreement. No JDB will pay for this. See Linda7 for this info.

[kittymamma]

I dont think that should make a difference, a jdb lawyer sucks either way get your answer filed, that is the first order of business.....you can do this, send them a copy and ask for discovery, this takes time, it is a step by step battle on paper basically......read start to finish winning against Midland, there is some great info there for starters, but by all means get ready to answer, that comes first, we can take it from there with you:lol:

[skoal17]

The first thing that I will do tomorrow is answer with a general denial.

Now based on what I have read, is there not different types of arbitration depending on when the card was opened? If, for example, the card was opened in 2005 would there not be different Arbitration options than there are in say 2010?

I am very new to this so I appreciate the help everyone is giving me.

[kittymamma]

I dont know anything about arbitration, I just bumbled my way thru this until I found this board....ask legaleagle or coltfan, they should have an answer for you.....the very best of luck to you in this fight, we are all in this together!!!

[legaleagle]

I believe Chase took ARB out of the agreement in Nov 2010. Ask Linda7, she is the expert on this.

[BV80]

You would need the cardmember agreement that was in effect the year your account went into default which, for you, would be 2009. If there is an arbitration clause, you'd want to make sure it includes JAMS. That forum is the most consumer friendly.

Another fact to consider about arbitration is the amount of the claim. If the amount for which you're being sued is a low amount, they'd be less likely to want to fool with arbitration. However, if the balance on the account was pretty high, they could be willing to go through arbitration.

But, if there's no arbitration provision in the cardmember agreement, then that's out the window anyway.

You said that there's no name of a law firm on the Complaint. It was signed by the attorney, wasn't it?

[skoal17]

The attorney that signed it works for Midland Funding. There is no other law firm listed. It said that below where she signed that she works for Midland Funding in a different part of the state. There is no law firm listed.

[kittymamma]

The attorney that signed it works for Midland Funding. There is no other law firm listed. It said that below where she signed that she works for Midland Funding in a different part of the state. There is no law firm listed.

That seems very odd.....I know right here in my county they always use Javitch Block and Rathbone....and you are only about 30 minutes from me....was the lawyers address from Cleveland? JBR has offices in Cleveland and in Cincinnati.

[skoal17]

Indeed it was from Cleveland, more Youngstown . But I am 100% sure she claimed to work for them directly. as there was no mention of the law firm that you had to deal with.

[BV80]

Indeed it was from Cleveland, more Youngstown . But I am 100% sure she claimed to work for them directly. as there was no mention of the law firm that you had to deal with.

Here's the link to the attorney information page on the Ohio Supreme Court website. That will enable you to look up the attorney, see if she's licensed, etc.

Supreme Court of Ohio Public Attorney Information

[Coltfan1972]

Lawyer, law firm, whatever, you've been sued by an attorney licensed to practice law in your state (one can only assume, one would never get lucky enough to have one sue them that was not licensed or disbarred).

Work for Midland as an employee for Midland or work for a law firm and were hired for this specific suit is irrelevant. You were sued, time to focus on what's important, beating the dog snot out of them, no matter who the attorney works for.

Arbitration can sometimes make Midland crawl right back under the rock they came from. As Legal pointed out, we have a resident arb expert. She will be the one that can help you with arb. If you decide to take them on in court, which is what I have always done, as have others, you might get some use out of this thread.

In fact, I'm sure you can use all the same arguments that are used in the standing thread, in arbitration also.

http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html

[legaleagle]

Check with the clerk of the court, all attys are required to file an appearance form. You should have received a copy.

[skoal17]

She is licensed and has no discipline or anything. I thought it was weird that she represented them directly opposed to a law firm being involved? I will contact the arb expert. In addition to reading through the standing thread colt recommended. I will also see of I can search out a cardmember agreement from 2009 to see what the arb options are.

Edited March 25, 2012 by skoal17

[nobk4me]

OP, please check your PM. I have sent info on arbitration.

[skoal17]

Thanks for the info nob!

[Huey Pilot]

In addition the statement they attached doesn't even have the full account number on it. Just the last four with the rest blacked out. I'm not sure if that matters or not.

That's standard to protect your identity. (As if they really care)

Here is a Midland/Chase answer template I found. Needs a Certificate of Service attached.

MIDLAND FUNDING, LLC,

Plaintiff,

vs.

Joe Debtor,

Defendant )

)

)

)

)

)

)

)

)

) Case No.: 61999999

ANSWER, AFFIRMATIVE DEFENSES

(House Bill 2710 Chapter 595, (1) ( )

$8,000.00

Now comes Defendant, Joe Debtor, Pro Se, who denies the following paragraphs of Plaintiffs Complaint:

I. Defendant alleges:

NO CONTRACT NO BREACH

1

Plaintiff for good and valuable consideration has purchased Defendant's Chase Bank

USA, N.A. credit card account and contract.

ANS: DENY Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in Paragraph 1, and, therefore, denies them. Plaintiff has provided no documents to substantiate the allegations in Paragraph 1.

2.

Defendant, an individual residing in Nimbus County Washington, entered into a contract with Chase Bank USA, N.A. for a credit card. The credit card was issued under the account number 1111222233334444.

ANS: ADMIT IN PART/DENY IN PART Defendant admits that he resides in Nimbus County Washington, and that he was at one time issued a credit card from Chase Bank USA. Defendant lacks sufficient information about the accuracy of the remaining allegations in Paragraph 2, and therefore denies the remaining allegations contained in Paragraph 2. Plaintiff has provided an alleged account number; however, failed to provide Defendant with any kind of documentation for alleged credit card debt. No evidence or affidavits were sent with summons.

3.

Chase Bank USA N.A. performed its obligations under the terms of the contract and supplied the Defendant with a credit card, and thereafter Defendant used the credit card and became indebted thereunder.

ANS: DENY Defendant lacks sufficient information or knowledge about the truth and accuracy of the allegations in Paragraph 3, and therefore denies allegations contained in Paragraph 3. Plaintiff provided no proof of debt, copy of evidence, bill of particulars, or affidavits of witnesses Plaintiff intends to call with summons. No credit card accounts ever opened or existed between Plaintiff and Defendant. Improper notice of breach may be a false filing of affidavit and Plaintiff Midland Funding; LLC may be liable for statutory damages. (Supreme Court CV-10-5132 Eva Lauber & other Plaintiffs v. Midland Funding, LLC)

4

Defendant has failed and refused in the obligation under the terms of the contract by discontinuing payment. The Defendant's credit card account was charged off for delinquency on April 21, 2011.

ANS: DENY Defendant lacks sufficient information or knowledge about the truth and accuracy of the allegations in Paragraph 4, and therefore denies allegations contained in Paragraph 4, Plaintiff failed to provide proof of debt or documentation for alleged charge off, or certification to substantiate any alleged balances. Upon information and belief, Defendant alleges that Plaintiff is the purchasor of Chase Bank's bundled credit card account’s receivable sold to junk debt buyers and intentionally misrepresented in value that may violate federal law via intentionally misrepresenting accounts and balances. No credit card accounts ever opened or existed between Plaintiff and Defendant.

5.

Defendant is indebted to Plaintiff in the sum of $8,000.00, which includes principal and interest, plus interest at the rate of 9% per annum from April 21, 2011 until paid. Plaintiff is also entitled to actual costs and reasonable attorney fees pursuant to the contract, with interest thereon at the rate of 9% per annum from the date of judgment until paid.

ANS: DENY Defendant denies the allegations contained in Paragraph 5 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant. No debt validation from Midland Funding, LLC pursuant to the FDCPA Act (§ 803.4) was supplied with summons.

6.

The Court should authorize plaintiff and its attorneys to contact third persons and entities for the purpose of collecting its judgment entered in this court. (sic) The Court should also authorize Plaintiff and its attorneys to reveal the existence of Defendant's debt to such third persons and entities.

ANS: Deny: The Defendant opposes any authorization by this Court for Defendant to contact any person or entity and provide any information as requested in Paragraph 6. Plaintiff's statement in Paragraph 6 suggests that Plaintiff wishes to obtain the Court’s permission to violate Defendant’s privacy rights. Upon information and belief, Defendant alleges that Plaintiff is attempting to inflate its alleged debt with additional unfounded charges from third parties.

Plaintiff has provided no substantiation or details to support its assertion that the Court should authorize third persons and entities, and appears to be an attempt to charge Plaintiffs unnecessary fee's for a frivolous action.

Allowing the Plaintiff to reveal the existence of Defendants alleged debt to such third persons and entities violates Defendant’s privacy rights and only causes further debasement of defendant.

Defendant affirmatively states as follows:

7.

There is not, nor has there ever been any agreement, written, oral, or implied between the Plaintiff and Defendant. The Defendant asserts that this action may be barred by the applicable statute of frauds.

8.

Upon information and belief, Plaintiff may be liable for statutory damages pursuant to FDCPA Act § 803.4 to include remedy for filing false affidavits. Eva Lauber et al. v. Midland Funding LLC, Supreme Court CV-10-5132-LRS.

9.

Plaintiff included no evidence of proof with the complaint that Defendant’s alleged debt to Plaintiff exists. This includes specifically the alleged contract between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing Defendants signature and/or production of the contract that legally requires the Defendant to pay the amount entered into complaint. Nor has the Plaintiff provided original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws under which the agreement and account are governed plus other important facts.

///

///

[Huey Pilot]

Alleged Midland Chase Answer Template on WEB PART 2

II. AFFIRMATIVE DEFENSES

Further the defendant asserts the following defenses and states:

As and for a First Defense

Plaintiff has not offered proof that complaint is other than time-barred under Oregon Title 2 Chapter 12, (statute of limitations for open accounts is 6 years). Commencement of action date June 29th, 2005 per ORS 12.010. Per the Plaintiff’s own summons, date of last payment was Dec 7th, 2005. Date of summons was Mar 7th, 2012.

As and for a Second Defense

Plaintiff has not presented proof or has failed to state ultimate facts sufficient to constitute a claim either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim as per Fed. R. Civ. P. 12((1) lack of subject matter jurisdiction or Rule 12((6) failure to state a claim upon which relief can be granted.

As and for a Third Defense

Plaintiff has deficiency in their proof of standing excluding any right to sue, and further precluding subject matter jurisdiction the Oregon Circuit Court of Columbia County in which the suit is filed.

As and for a Fourth Defense

Plaintiff has failed to provide proof of any credit card agreement or evidence that it was offered, delivered, or that it's enforceable in order to prevail on any breach of contract or account stated. Plaintiff is deficient in proof of valid contract between parties of this immediate action.

As and for a Fifth Defense

No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of the purported agreement, or that any transfer of title or rights to the Original Creditors Claims or ability to take action, are evident and remain unsubstantiated.

As and for a Sixth Defense

Plaintiff is deficient in proof that they are the real party of interest. Rule 26A of the Oregon Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest and that, relevant substantive law creating the right being sued upon, the suit has been commenced by the party holding the substantive right to relief.

As and for a Seventh Defense

False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Asset Acceptance LLC, to initiate time-barred suit on a debt it knew should or should have known was barred by the statute of limitations, constituting a false representation regarding the character or legal status of the debt and a false representation or deceptive means to collect a debt allege violations of 15 U.S.C. §1692(e)(2)(A)

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

=================================================================

Note:

The forum is not really big on affirmative defenses but it might give the JDB a shot across the bow with all the FDCPA stuff? These are OREGON Rules so look up the OHIO Rules of Civil Procedure.

=================================================================

Here is some more for good measure (I particularly like idea of wiping out attny fees)

Plaintiff has failed to state a valid claim for attorney fees, and is barred from collecting Attorney fees under the Fair Debt Collection Practices Act.

The Complaint fails to allege or prove that the Plaintiff is licensed and has procured a bond in the State of Oregon as required per ORS 697 of the Oregon Code.

Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2) from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

Debt Validation pursuant to FDCPA Section 809,

Proof of Debt pursuant to the FDCPA Act (§ 803.4)

Reporting of alleged balance to credit bureau.

///

III. Defendant's Prayer for Relief

The Defendant has been injured by Plaintiff's actions:

WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by

virtue of its Complaint and that Court dismiss the complaint with prejudice as

follows:

1. Deny Plaintiff's request for relief on this time barred complaint in the sum of $8,000.00, which includes principal and interest, plus usurious interest at the rate of 24% per annum from April 20, 2010 until paid.

2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's

fees incurred herein, with interest thereon at the rate of 9% per annum

from the date of judgment until paid;

3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and

assigns to contact third persons and entities for the purpose of collecting

its judgment entered in this Court and to reveal the existence of

Defendant's debt to such third persons and entities;

4. For judgment against Plaintiff for actual and statutory damages under

FDCPA.

5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

6. Such other remedies or sanctions the Court deems appropriate.

Dated this 23rd day of March, 2012

/s/___________________________

Joe Debtor

1234 anywhere

Nimbus, Wa 99920

[skoal17]

Could someone review these and give me an idea if they are ok to file? The parenthesis are the allegations or facts they had in the complaint.

Allegation #1: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 1 of the Complaint. (Midland is qualified to do business in ohio)

Allegation #2: The allegation(s) contained in paragraph 2 of the Complaint is admitted. (I am me)

Allegation #3: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 3 of the Complaint. (I opened an account with Chase)

Allegation #4: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 4 of the Complaint. (Midland purchased debt from chase)

Allegation #5: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 5 of the Complaint. (Midland tries to contact consumers) -> I was never contacted by Midland until I got the complaint

Allegation #6: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 6 of the Complaint. (Midland treats customers with respect)

Allegation #7: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 7 of the Complaint. (Midland's customers don't contact them)

Allegation #8: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 8 of the Complaint. (midlands customers refuse to repay their obligations)

Allegation #9: The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 9 of the Complaint. (Amount due is XXXX.XX)

Allegation #10: The allegation(s) contained in paragraph 10 of the Complaint is denied. (Defendant has refused to pay the balance due)

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

Edited March 30, 2012 by skoal17
Removed defenses based on the sticky at the top of the forum

[skoal17]

can someone please check out the above info and let me know if those are ok to send in?