Jump to content

being sued in court for Consumer debt by collection company


Recommended Posts

I received court paper a few days again. Long story short and without too many details.... Midland Funding, LLC states they have bought and old credit account from 3 years ago belonging to a major credit company that alleges I owe them over $13000. I had multiple accounts that my ex husband opened before our divorce that I am not fully aware of. Many are opened in my name.

NOW how to I answer, proceed, and what do I saw in the court papers. Please help and attorneys cost far to much to retain. I am going to have to go at this alone and hope I don't loose it all. Need help ASAP! Anything would be greatly appreciated. I have already started a letter of validation to be sent to the attorney represented with collection company and cc: it to the clerk of court.

Any more info, just asks as my mind is jumbled and confused.

Trying to keep my head on straight in SC,

Susie

Link to comment
Share on other sites

I received court paper a few days again. Long story short and without too many details.... Midland Funding, LLC states they have bought and old credit account from 3 years ago belonging to a major credit company that alleges I owe them over $13000. I had multiple accounts that my ex husband opened before our divorce that I am not fully aware of. Many are opened in my name.

NOW how to I answer, proceed, and what do I saw in the court papers. Please help and attorneys cost far to much to retain. I am going to have to go at this alone and hope I don't loose it all. Need help ASAP! Anything would be greatly appreciated. I have already started a letter of validation to be sent to the attorney represented with collection company and cc: it to the clerk of court.

Any more info, just asks as my mind is jumbled and confused.

Trying to keep my head on straight in SC,

Susie

Good news for you Susie, Midland is very beatable and many members of this board have destroyed them in court. You have plausible deniability because of your ex. You don't know anything about the debt? Gee, they can't force you to state otherwise. On top of that, Midland can almost never prove that it actually owns the accounts in question. Hell, when pushed, they probably can't even prove that the accounts exist.

If you really want to win, you have a lot of work ahead of you and a lot to learn. But that's OK, because going to court and winning pro se when your opponent is a licensed attorney is something to be proud of.

Oh, and forget about the letter of validation. You're being sued. You're well past that stage now. Now, you have the ultimate form of validation. Most states call it the discovery process and you really get to make them cough stuff up.

Also, you probably want to answer the questions in this thread:

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

Just be sure to remove any information that could be used to identify you and to round any dollar values off.

Link to comment
Share on other sites

Susie,

Welcome to CIC! Do not be worried about putting out too much information. Midland files tens, if not hundreds of thousands of lawsuits a year!

Put up a generic dollar amount, you can omit the county, your name, and account number, but we need to know what the complaint says. Also, when were you served? What evidence or exhibits were included in the complaint? Please post this information so that the other minds here can point you in the right direction. Being here is a great start!

Link to comment
Share on other sites

TO paraphrase....

I am hereby summoned and required to answer the compliant....blah blah (I was served 2 day ago from today) and "appear or defend" (APPEAR??? where? there is no court date). It tells me to serve my Answers to the attorney's office w/in 30 days etc etc or they will "apply to the court for the relief demanded therein, and judgement by default will the rendered again you for relief demanded in the Complaint"

I have the complaint, stating who they are, who i am, that i took out this credit card on such and such date and that i agreed to pay; Along with that they state when i last paid on the acct, when the acct was charged off and in the amount, That the account was assigned to ME, that i used the card for specific purchases and cash advances (REALLY?)

Exhibit A--an affidavit from someone saying he has access to my acct and has seen it which proves i owe it and a typed up statement from them (not an original creditor ....They then send a bogus typed up spreadsheet stating a statement date, my name, amount owed, their name, when they purchased the debt, the original acct# and lender, and the total amount due (WELL I COULD TYPE THAT UP ABOUT ANYONE)

I just do not know exactly what to say in my answer to the court---please help

Link to comment
Share on other sites

Nobody can help with a paraphrased version of the complaint. In law, replacing the word "shall" with the word "may" has a world of difference. Nuances like that make paraphrasing unreliable.

What you're describing in your first paragraph is a standard summons. By responding to the lawsuit with an answer, you will prevent default judgment. You'll have to do it according to your state's rules, but in most states, you take three copies of your answer to the clerk's office, they will be endorsed, the court will keep one, you'll keep one and you'll send one to the Midland's douchebag attorney.

If a general denial is allowed in your state, you can consider that. Otherwise, you just answer each averment (fancy word for allegation) individually. When answering, you either ADMIT, DENY or ADMIT IN PART, DENY IN PART , and typically give a short and succinct reason for the answer.

If you want people to help with the complaint itself, you'll have to type it out word for word. You can still leave out exact dollar amounts, partial or whole account numbers, your real name, address, etc...

Don't worry about typing out the affidavit just yet. I can just about guarantee that it's inadmissible hearsay without looking at it.

Edited by usagi555
Link to comment
Share on other sites

You'll have to type the complaint word for word, the answer must respond to the allegations they make. I think your defense will be a form of ID theft, since you apparently didn't know about the account and did not open it. What is important is whether or not you made or signed any applications. If not, then you should also file a motion to implead your ex as a third party defendant. That means you bring him into the case as being responsible for any losses you incur.

Link to comment
Share on other sites

(APPEAR??? where? there is no court date).

The legal profession uses many everyday words which they give special meanings compared to their use in the everyday world. "Appear" is one of those words. Basically, by filing a paper you "appear" in the case. It does not mean you need to physically go anywhere, other than you need to file your papers at the courthouse in person.

Furthermore, while it is typical to file an Answer in which you deny their claims and assert your Affirmative Defenses, in some jurisdictions it is allowed to file a document that says nothing more than that "the defendant is appearing in this action." It's possible South Carolina is one of those states. So it's essential that you find out exactly what you need to do to respond to this case.

Good luck.

DH

Link to comment
Share on other sites

Thanks but that is been my problems finding out exactly what SC wants, Lawyers are too expensive, and the law i have scoured over the past to days is literally driving me in sane. I will post the complaint word for word but heard the scour and read these sites...oh well. I am not sure i have nothing left to loose beside my sanity and it is going fast. As far as bring my ex into it, that wont do anything, he claims all debt is mine whether in his name or mine and no matter what the court orders...which was "debt in his name are his and "debts in my name are mine" so it doesnt matter that he used "MY" name to obtain the debt, family court does not care about those things.....Complaint coming. I have my answer all typed up but do not know how to end it.

Link to comment
Share on other sites

i have scoured over the past to days is literally driving me in sane.

I would get a free copy of your credit report from AnnualCreditReport.com to see what other accounts may be on there that you don't know about.

For the immediate case here are a couple of things to keep in mind.

Take a deep breath and relax. There are things you need to learn and do but you have time.

You are not alone. The fine folks here are very helpful and can point you in the right direction.

Think of legal termanology as a foreign language like Spanish or French. You can learn it but not in two days.

Link to comment
Share on other sites

COMPLAINT--

The State of SC

County of XXXX

Midland Funding LLC

vs

Susie

COMPLAINT

The Plaintiff's complaint of the Defendant, alleges that:

1. The plantiff is a limited and liability company organized and existing under the laws of the state of Delaware.

2 The Defendant is upon information and belief a citizen and resident of the County of XXX, State of SC.

3 This is an action for recovery of an indebtedness due unto the Plaintiff arising out of the issuance of a credit card to the Defendant.

4 XXXX Bank USA issued a credit card to the defendant in the Defendants name on Jan, xx, 2007. The insurance of the credit card created a revolving line of credit on an open account allowing the Defendant to obtain cash advances and/or purchases were to be charged to the said account, with the account number #4355XXXXXXXXXXXX, all of which the Defendant agreed to pay.

5. On information and belief the last payment on the account was received Aug 2009 and the account as charged off on March 2010 in the amount $13,XXX,XX.

6 That for the good and valuable consideration the account was subsequently assigned to the Plaintiff making the Plaintiff the holder of the account.

7 The Defendants credit card account had certain cash advances and/or purchases to it, the balance of which has gone unpaid and is now delinquent as shown in the verified statement of account attached hereto as Exhibit A and incorporated herein by reference. Al thought demand has been made, there is not and owing unto the PLaintiff og the sum of $13,XXX.XX plus interest at the legal rate provided in SC code... ...per annum from March 31, 2010 through the date of the judgment.

8 Pursuant tot the credit card agreement and disclosure, teh Defendant aggredd to pay all collections costs, including reasonable attorney fees.

9 On information and belief that Notice of Consumer Right to Cure as contemplated under SC code section....etc.....was send to the Defendant or was not required.

WHEREFORE, the Plaintiff prays before this court for its Order granting judgement against the Defendant in the sum of $13,XXX.XX plus interest at the rate of 8.75% per annum from March 31. 2010 through the date of judgement and the costs of this action with reasonable attorney fees and suck further relief as may be just and properer

Link to comment
Share on other sites

I only have 30 days to get this all together and make an answer, I am extremely busy working 2 jobs, children, college cost, and new grandbaby....this could not happen at a worse time and i think it might do me in. So I am under a 20-30 time constrain with MULTIPLE things in my life I must take care of too. I am desperate for help in this matter.

Link to comment
Share on other sites

Thanks but that is been my problems finding out exactly what SC wants, Lawyers are too expensive, and the law i have scoured over the past to days is literally driving me in sane. I will post the complaint word for word but heard the scour and read these sites...oh well. I am not sure i have nothing left to loose beside my sanity and it is going fast. As far as bring my ex into it, that wont do anything, he claims all debt is mine whether in his name or mine and no matter what the court orders...which was "debt in his name are his and "debts in my name are mine" so it doesnt matter that he used "MY" name to obtain the debt, family court does not care about those things.....Complaint coming. I have my answer all typed up but do not know how to end it.

He can claim whatever he wants. If there is a court order stating that your finances were to be separate, there is a court order. You can drag his a$$ into your case and you will have some significant tools for you to use against him. In fact, if he used your name to obtain the credit card after the court ordered that your debts were yours and his debts were his, I'd think about filing a police report for ID theft.

Link to comment
Share on other sites

I only have 30 days to get this all together and make an answer, I am extremely busy working 2 jobs, children, college cost, and new grandbaby....this could not happen at a worse time and i think it might do me in. So I am under a 20-30 time constrain with MULTIPLE things in my life I must take care of too. I am desperate for help in this matter.

Check out this post by someone in SC that got a laywer to handle his case.

http://www.creditinfocenter.com/forums/1164311-post79.html

Link to comment
Share on other sites

COMPLAINT--

The State of SC

County of XXXX

Midland Funding LLC

vs

Susie

COMPLAINT

The Plaintiff's complaint of the Defendant, alleges that:

1. The plantiff is a limited and liability company organized and existing under the laws of the state of Delaware.

Do you have any personal knowledge of whether or not the plaintiff is a limited liability company organized and existing under the laws of the state of Deleware? If not, you can deny this because you lack knowledge. Responses like this typically follow the form of "Defendant lacks sufficient knowledge to form an opinion as to the truth of the averment and therefore DENIES."

2 The Defendant is upon information and belief a citizen and resident of the County of XXX, State of SC.

If it's true, you can go ahead and admit this one. If it's not true, you may have yourself a nice little FDCPA violation.

3 This is an action for recovery of an indebtedness due unto the Plaintiff arising out of the issuance of a credit card to the Defendant.

It's kinda hard to nail down just exactly what they're alleging against you. However, since they state "out of the issuance of a credit card to the Defendant," I would simply deny based on the fact that you never received a CC from the bank.

4 XXXX Bank USA issued a credit card to the defendant in the Defendants name on Jan, xx, 2007. The insurance of the credit card created a revolving line of credit on an open account allowing the Defendant to obtain cash advances and/or purchases were to be charged to the said account, with the account number #4355XXXXXXXXXXXX, all of which the Defendant agreed to pay.

Again, you have a very simple reason to deny. Your ex. It depends on your state's rules, but you may be able simply put denied, or you may have to put a short and simple statement as to why you are denying, i.e. "Denied. Defendant never applied for and never received CC from XXXX Bank USA.

5. On information and belief the last payment on the account was received Aug 2009 and the account as charged off on March 2010 in the amount $13,XXX,XX.

This, you can simply deny the same way you do for number 4, or you can deny based on a lack of knowledge. If an account did exist, but wasn't yours, how would you know when the last payment was made? You wouldn't. Don't assume anything, including the existence or lack thereof of the alleged account.

6 That for the good and valuable consideration the account was subsequently assigned to the Plaintiff making the Plaintiff the holder of the account.

Yeah, you're not privy to the business dealings of Midland or it's affiliates. You have no knowledge of whether or not they purchased it or not. You can safely deny this based on a lack of personal knowledge.

7 The Defendants credit card account had certain cash advances and/or purchases to it, the balance of which has gone unpaid and is now delinquent as shown in the verified statement of account attached hereto as Exhibit A and incorporated herein by reference. Al thought demand has been made, there is not and owing unto the PLaintiff og the sum of $13,XXX.XX plus interest at the legal rate provided in SC code... ...per annum from March 31, 2010 through the date of the judgment.

Compound BS here. If they made the demand and you are aware of such a demand, you can admit in part and deny in part. "Defendant admits demand was made and that Defendant has not paid the alleged balance and denies all other allegations" or something of the sort. That's poorly worded, but it gets the point across.

8 Pursuant tot the credit card agreement and disclosure, teh Defendant aggredd to pay all collections costs, including reasonable attorney fees.

Well, if you never applied for, received and used the card, you can safely deny this based on that fact.

9 On information and belief that Notice of Consumer Right to Cure as contemplated under SC code section....etc.....was send to the Defendant or was not required.

Whiskey Tango Foxtrot? They don't even know if they sent it to you? Pffft, that's vague and difficult to answer, unless you did receive the notice.

WHEREFORE, the Plaintiff prays before this court for its Order granting judgement against the Defendant in the sum of $13,XXX.XX plus interest at the rate of 8.75% per annum from March 31. 2010 through the date of judgement and the costs of this action with reasonable attorney fees and suck further relief as may be just and properer

WHEREFORE, the Defendant prays before this court for its Order granting judgment against Plaintiff that its executives and shareholders will be publicly tarred, feathered, flogged, put on the rack, be pelted with manure and rotten fruits and vegetables and be awarded no points. Oh, and that this action be dismissed with prejudice and the Plaintiff take nothing.

Link to comment
Share on other sites

Do relax and do not stress about this. Many people on this board have beaten Midland and a number of them had Midland paying them money! They have nothing. The only ones that I know that have lost are the ones that just gave up. They will stupidly hand you the ammunition you need to beat their college educated lawyer with one hand tied behind your back.

Legal research can lead you down a hole when first starting out. At this point the most important thing to read over is the SC Rules of Civil Procedure. Go to the link below, then click on the "Civil" tab. You only need to really concern yourself with the first 4 (I-IV) sections at this point.

SC Judicial Department

Link to comment
Share on other sites

Almost forgot and this is not really that important at this point but it does get Midland in the frame of mind for a quick dismissal. You can send a subpoena for the affiants employment record and resume. They will not want to give that up at all, especially since they have been found guilty of submitting fraudulent affidavits. Google the persons name to determine if they have been involved in the Robo-Signing scandal, most likely they have.

Remember once you submit your answer the courts move at a snails pace and you will have plenty of time.

Link to comment
Share on other sites

I did except who I am

You have enough information to admit your name and residence, but everything else is lacking due to Midland showing no proof that they even own the debt. No need to over think answering a suit. They can't win without a legitimate bill of sale directly identifying you, but they buy in bulk so they don't have one.

Link to comment
Share on other sites

Is the date of last payment correct? If you're not sure, check your bank statements and the OC's entry on your credit report.

Follow Midland's format for your Answer. You must use the court header that show the parties' names, the case number, court name, etc. The only difference will be the title. You can simply entitle it "Answer" or "Defendant's Answer to Plaintiff's Complaint".

You must sign it and include your address and phone number. Make 2 copies. File the original with the court. Keep one copy for yourself, and send the other copy to Midland's attorney.

I sent the copy by certified mail, return receipt requested. I also wrote up a Certificate of Service stating how I'd sent the copy to the attorney and included a copy of the mail receipt. I included the COS and copy of the receipt when I filed my Answer with the court and also with the copy of the Answer I sent to the attorney. I did all of that in order to be safe rather than sorry.

Start reading the rules for discovery in civil court.

SC Judicial Department

BTW, not counting the affidavit, did they include any other evidence?

Edited by BV80
Link to comment
Share on other sites

  • 2 weeks later...
Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.