ME vs Midland Funding in Texas

[nowd68]

That JDB Midland Funding filed a petition against me. I have answered the petition and I am including it here. I would appreciate any suggestions and input you might have.

I. DEFENDANT’S ORIGINAL ANSWER

Comes Now the Defendant, XXXX, Pro Se, who admits and denies the following

items in the Plaintiff's Complaint:

1. Defendant lacks sufficient information or knowledge about the truth and accuracy of the allegations in Paragraph X, and therefore denies allegations contained in Paragraph X. Plaintiff failed to provide proof of debt or documentation for alleged charge off, or certification to substantiate any alleged balances. No credit card accounts ever opened or existed between Plaintiff and Defendant.

2. Defendant denies the allegations contained in Paragraph X and X of the Complaint, as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

3. Defendant lacks knowledge about the truth and therefore denies allegations contained in Paragraph X and X, Plaintiff has failed to provide Defendant with an account number or documentation for alleged credit card debt.

4. Defendant denies the allegations contained in Paragraph X and X as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.

5. Defendant is without sufficient information about the truth and therefore denies allegations contained X of Complaint.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs X and X of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

7. Defendant denies allegations in paragraphs X and X since 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.

Defendant affirmatively states as follows:

8. 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.

9. 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.

10. 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.

II. AFFIRMATIVE DEFENSES

1. Plaintiff Lacks Standing.

2. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

3. Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

4. Statute of Frauds.

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or

debtor/creditor arrangements with Plaintiff.

6. Plaintiff has failed to name the Real Party in Interest.

7. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

8. Plaintiff's damages are limited to real or actual damages only.

9. Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

10. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

11. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

12. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference an account number in their Complaint.

13. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e 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.

14. 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.

15. Plaintiff ’s claims are based on a contract that is illusory and therefore unenforceable.

16. 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.

17. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

18. Assumption of risk

19. The plaintiff and their attorney have violated FDCPA Section 809(A), 15 U.S.C. § 1692f by not validating the debt.

20. Plaintiff has suffered no compensable damage or injury.

21. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

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

WHEREFORE, the Defendant prays that this court take nothing of the Plaintiff's Complaint and

dismisses this complaint without prejudice.

[nowd68]

I might add that I also filed a sworn denial to the debt. I guess the next step is to answer the request for admission and submit my request for discovery.

[kittymamma]

I am fighting Midland in Ohio....my answer surely was not as professional as yours

I will let our resident experts advise you on this but I believe some will tell you not to use affirmative defenses because until you do discovery you wont know what kind of 'proof' Midland has, the lack of standing is a good defense but use it after discovery when you know exactly what kind of crappy documents they have.....in my case they didnt have anything good, bill of sale without my name and account number on it, and some cc statements that were mostly blank paper, it was pathetic

Just know that you are doing the right thing fighting then and you most likely will win!!! I am in the last stages of my fight and I am winning.....best of luck to you!!!

[Coltfan1972]

But I believe some will tell you not to use affirmative defenses.

I'll be the first.

http://www.creditinfocenter.com/forums/there-lawyer-house/311576-detailed-discussion-affirmative-defenses-including-standing.html

[legaleagle]

I'll be the second:

Defendant affirmatively states as follows:

Every single word you wrote after this sentence should have been deleted. It is argumentative, repititous, and improper. You don't try the case in the answer and tip off the other side as to what you intend to use as a defense. See Coltfan's post as to why the defenses you listed are no good. I suggest an amended answer per the rules of your court. As for discovery, all you need is production of documents. Try posting stuff here before you send it to the court, you'll avoid a lot of trouble that way.

[nowd68]

Thanks for the input. I submitted my answer before I found this site. I will look into submitting an ammended answer.

[whatsmyscore]

Does the answer to a summons require anything beyond section I of the above letter?

[texasrocker]

Not required but you should always include a general denial demanding that the plaintiff be required to appear and provide strict proof of said allegations.

[Seadragon]

I would concentrate of discovery at this point. since you have affirmative defenses they have to do something about that.

I am in a different camp when it comes to affirmative defenses. Not wishing to get into the debate in your thread, I will say that the affirmative defenses you have listed seem appropriate to elicit the discovery from them of all the stuff they typically fail to disclose.

So I say again discovery is the most important thing here. Requests for production will gain the info for your affirmative defenses.

well done to this point.

[iwonteverstop]

I'll very briefly share what worked for me against Midland Funding in the state of Texas hopefully it will apply to your case too. I do not want to publicly post too much information just in case Midland's attorneys see this. Maybe Im too paranoid however if you need more information PM me.

Google Harris County District Court Records. Search for the state of texas vs midland funding llc. It should pull up only one case.

Read the signed proposed agreement specifically the section about AVC and affidavits that midland signed in 12/2011. Make sure they are in compliance with the evidence they submitted to you in discovery.

[4ever]

Great info, thanks.