Stuck in Midland Case in South Carolina

[Geannie]

Newbie here, so I will try to make this as short as possible. I was served back in January of 2011 by Midland. They are within the SOL, I am being sued individually for a joint CC account from Chase, that was the responsibility of both my ex and myself. He was supposed to pay the account per our divorce agreement, but that agreement was not specifically stated in the final order of divorce. It just states that each party shall be responsible for any debt they are currently paying. The Chase account was originally opened as a Bank One CC by my father in 1993, I was added as a user to help me rebuild my credit. At some point, my husband was added to the account. I would have never actually signed a CC agreement with Bank One or Chase.

Now getting to the meat of the problem: I was served with Summons and Complaint in January 2011. I answered in a timely manner and denied everything. Law firm out of Columbia SC who is representing Midland, then sent back Plaintiff's first set of Interr, Request for Production, and Request for Admissions. Again with the help of the internet, I managed to answer in a timely manner, but was vague and evasive to each question. Then Korn filed a Notice of Motion and Motion to Compel Discovery with alot of scary credit card statement attached. They also came up with an Affidavit of Sale from someone at CHASE named Jeffery Judd stating that he was an officer of Chase Bankcard Services.

I have gotten this continued by the Court three times due to my daughter's chronic illness and needing to have her hospitalized, out of town and out of state, six months out of the past year. But, now it is coming up for hearing again on the Motion to Compel and I don't know what to do. No money for an attorney, any spare funds have long been used up by medical expenses. Legal Aid can't help me because of manpower constraints even though I do qualify for Legal Aid.

So, any help on what should be my next move would be greatly appreciated.

Edited August 6, 2012 by Geannie

[Geannie]

I'll go ahead and C&P my answers to the roggs, etc if anyone wants to see how they were answered.

Interroogatories ;

TO: Lawyers

Please take notice that the Defendant, me , PRO SE, subject to all pertinent objections to admissibility which may be interposed at trail, makes the following response to Plaintiff’s First Request for Admissions dated March 7, 2011:

1. Admit or deny that the Defendant entered into an agreement (hereinafter referred to as the “agreement”) with Chase Bank USA, N.A., whereby Chase Bank USA, N.A. issued a credit card to Defendant creating a revolving line of credit on an open account on which the Defendant could make purchases at certain retail establishments.

RESPONSE: Denied, as there is no agreement bearing a wet ink signature attached for the defendant to verify.

2. Admit or deny that the agreement provides that the Defendant will repay funds advanced through the account, plus interest, to the holder of the account.

RESPONSE: Denied, as there is no agreement bearing a wet ink signature attached for the defendant to verify.

3. Admit or deny that, pursuant to the agreement, the Defendant and/or authorized user(s) made purchases and/or cash advances on the account, the balance of which has gone unpaid and is now delinquent, putting the Defendant in default.

RESPONSE: Denied, as there is no agreement bearing a wet ink signature attached for the defendant to verify.

4. Admit or deny that the documents attached hereto and incorporated herein as Exhibit “A” are true and accurate copies of the billing statements delivered to Defendant on this account.

RESPONSE: Denied, as the documents marked Exhibit “A” are purportedly Monthly Statements and are not authenticated.

5. Admit or deny that the current principle balance due on the account is $8,087.86.

RESPONSE: Denied.

6. Admit or deny that the agreement provides that in the event of Defendant’s default, the Defendant agreed to pay all collection costs, including reasonable attorney’s fees.

RESPONSE: Denied, as there is no certified agreement bearing a wet ink signature attached for the defendant to verify.

7. Admit or deny that Defendant has no legal defense(s) to this action.

RESPONSE: Denied.

Edited August 5, 2012 by Geannie

[Geannie]

Sorry these are the answers to the Interr's, the previois was to the Request for Admissions

TO: Lawyers

Please take notice that the Defendant, me, PRO SE, subject to all pertinent objections to admissibility which may be interposed at trail, makes the following response to Plaintiff’s First Set of Interrogatories to Defendant dated March 7, 2011:

1. Identify, giving names, addresses, and phone numbers of persons known to the Defendant to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.

RESPONSE: Plaintiff’s interrogatory #1 is premature in that it requests the Defendant, prior to the completion of discovery, to state facts supporting its present contentions and to speculate as to its future contentions. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff’s request(s).

2. Set forth a list of photographs, plats, sketches or other documents in possession of the party that relate to any claim or defense in the case and cite to any portions thereof that relate to the claim or defense.

RESPONSE: Plaintiff's interrogatory #2 is overbroad and unduly burdensome to the extent it seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s)

3. List the name and addresses and phone numbers of any expert witnesses whom

the Defendant proposes to use as a witness at the trial in this case.

RESPONSE: Plaintiff’s interrogatory #3 is premature in that it requests the Defendant, prior to the completion of discovery, to state facts supporting its present contentions and to speculate as to its future contentions. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff’s request(s).

4. For each person known to the Defendant to be a witness concerning the facts of

the case, set forth either a summary sufficient to inform the Plaintiff of the

important facts to or observed by such witness or provide a copy of any written or recorded statements taken from such witnesses.

RESPONSE: Plaintiff’s interrogatory #4 is premature in that it requests the

Defendant, prior to the completion of discovery, to state facts supporting its present

contentions and to speculate as to its future contentions. Without authenticated

evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient

information to enable her to respond to Plaintiff’s request(s).

5. Set forth an itemized list of all payments alleged to have been made on the

Subject account, specifying the date that any such alleged payment was submitted, the amount of the payment, the method of payment such as check or money order, and any relevant identification for such payment such as check or money order.

RESPONSE: Defendant has never contracted for credit with the Plaintiff, and has no knowledge of this account. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s)

Edited August 5, 2012 by Geannie

[Geannie]

Finally the answers to the Request for Production

TO: Lawyers

Please take notice that the Defendant, me, PRO SE, subject to all pertinent objections to admissibility which may be interposed at trail, makes the following response to Plaintiff’s First Request for Production dated March 7, 2011:

1. All correspondence, records, contracts, or other information or

Documentation of any nature and kind whatsoever, which relate to the

transaction at issue in this lawsuit as well as all transactions you have had with Plaintiff in any way.

RESPONSE: As stated in Defendant’s Answer, Defendant’s first knowledge of Plaintiff came as a result of this action. Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s).

2. All documents identified in your answers to plaintiff’s written

Interrogatories.

RESPONSE: Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s). Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant.

3. All letters, reports, or any writings in your possession from any experts

involved in this case in any way.

RESPONSE: Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s)

4. All statements of any witnesses or other persons claiming to have

Knowledge of any issue in this case.

RESPONSE: Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s)

5. Proof of all payments made to Plaintiff.

RESPONSE: Defendant has never entered into an agreement or contracted for credit with Plaintiff. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s)

6. All documents mailed, sent, or gave to Plaintiff.

RESPONSE: As stated in Defendant’s Answer, Defendant’s first knowledge of Plaintiff came as a result of this action, copies of which the Plaintiff already has in their possession. Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant.

7. All documents that you received from Plaintiff.

RESPONSE: Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff's request(s). Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant.

8. All documents in your possession that relates to any claim or defense

in the case.

RESPONSE: Plaintiff’s request for production #8 is premature in that it requests the Defendant, prior to the completion of discovery, to provide documents supporting its present contentions and to speculate as to its future contentions. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff’s request(s).

9. All documents which Defendant proposes to introduce at the trial of this

case.

RESPONSE: Plaintiff’s request for production #9 is premature in that it requests the Defendant, prior to the completion of discovery, to provide documents supporting its present contentions and to speculate as to its future contentions. Plaintiff seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff’s request(s).

Edited August 5, 2012 by Geannie

[BV80]

You admissions responses were too wordy. All you have to do with admissions is admit, deny, or object. If you object, you have to have a good reason.

Your interrogatory responses were evasive. For instance:

1. Identify, giving names, addresses, and phone numbers of persons known to the Defendant to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.

RESPONSE: Plaintiff’s interrogatory #1 is premature in that it requests the Defendant, prior to the completion of discovery, to state facts supporting its present contentions and to speculate as to its future contentions. Without authenticated evidence that the Plaintiff owns the debt in this case, the Defendant lacks sufficient information to enable her to respond to Plaintiff’s request(s).

Your answer referred to stating facts to support the Plaintiff's case and to speculate about future contentions. I don't know where you got the response, but it has nothing to do with what they requested. The request was for you to provide names of any witnesses you might have to support your defense.

If your responses are not your own, you have to be careful. Don't use a defense or an answer you don't understand. If the judge were to ask you what your responses meant, could you explain them?

The same goes for your responses to the production of documents. Whether or not they authenticated their evidence has nothing to do with whether or not you have certain documents. One response you could have used is "Defendant is searching his records and will respond if any documentation related to Plaintiff's request is located."

If the judge feels your answers were evasive, he's going to grant their motion to compel, and you'll have to reanswer everything.

Have you sent your own discovery requests?

It would help us if you'd copy and answer the questions in the link:

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

[Geannie]

Thank you for your response BV80. I agree that my responses might not make any sense, at the time I was more interested in trying to keep my child alive than what some bottom feeder was trying to get from me. I got the responses from some documents that were filed in SC in a similar case. Than as now, I didn't really know what to do, no money for an attorney, just trying to answer in the required amount of time.

Should I file amended answers? I suppose I'm just afraid of saying something that will be an admission of guilt/liability/ownership/whatever I should be avoiding admitting to

[Geannie]

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?

Midland Funding LLC

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

Korn Law Firm, P.A.

3. How much are you being sued for?

$8087.86

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

CHASE Bank NA

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

Served with summons and complaint

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

9. What state and county do you live in?

South Carolina, Laurens County

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

January 17, 2008...I was served January 11, 2011...plaintiff filed suit November 30, 2010

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

3 years

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).

Summons and complaint served and answered. Plaintiff's first Interrog's, request for admissions and request for production served and answered, Plaintiff filed motion and motion to compel discovery...hearing date is August 9, 2012

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?

responded in a timely manner to everything sent so far, 20 days

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.

with summons they just sent and affidavit of the account and statement of account. Since that time, they have sent an affidavit of sale signed by Jeffery Judd claiming to be an official of CHASE bank and making the affidavit on their behalf

[Geannie]

I have not sent my own Discovery requests, but I would like to

[legaleagle]

I agree with BV80, your responses are way overdone. All you have to do is admit or deny, you don't have to argue the entire case. A very little explanation is okay, of course we do not expect you to be up to this level, that's why we're here. Once you send the answers, however, it's too late for us to help you. You should post everything as early as possible so as to afford yourself time to properly respond according to the advice we give. You can supplement your answers to discovery, this is provided for in the rules of civil procedure. Generally, when you respond to discovery, you try to put yourself in the position of the other party. What is he asking? If I answer this way, does it benefit him or me? What answer would he ultimately want so as to win his case? That's the answer you never give. Is the question crystal clear? No? Object. Is it compounded? (more than one subject) Object. Does it call for a legal conclusion? (not your job, the court decides) Object. Is it argumentative? Assuming facts not in evidence? (do you still beat you r wife) Is it relevant to the case? I can ask your dog's name, but what does that have to do with the case? (instant action is what they call it) Object. Also, is the information sought already assumedly in the possession of (or equally accessible to) the plaintiff? In other words, you already should have this, so don't ask me for it. There's more, but this would cover most of what they send you. Just follow the process:

he asked me this.

he wants this answer to win

Don't give him this answer no matter what but never lie to the court.

Object if you feel you will be prejudiced by your truthful answer. Make one up, they will.

That puts the ball in their court, make them spend their money.

[Geannie]

Okay, I've been chastised for having answers that are overdone.

At this point, I need some help to formulate amended answers to the Interrogs, Admissions and Production. Can you help with that?

My head is about to explode, just got my child home a week ago

from a hospital hundreds of miles away. Trying to get her settled and now she believes I'm being sued is because of something she did, which is causing her anxiety which is making her condition worse.

I'm just so sick of this whole thing and so tired of having it hang over my head.

[BV80]

Okay, I've been chastised for having answers that are overdone.

At this point, I need some help to formulate amended answers to the Interrogs, Admissions and Production. Can you help with that?

My head is about to explode, just got my child home a week ago

from a hospital hundreds of miles away. Trying to get her settled and now she believes I'm being sued is because of something she did, which is causing her anxiety which is making her condition worse.

I'm just so sick of this whole thing and so tired of having it hang over my head.

I'm not an attorney, but I don't know that you need to file amended answers right now. That's what the Motion to Compel is for. If the judge grants their MTC, you'll have to amend your answers at that point. Here's some suggestions if that time comes:

In the Interrogatories they asked for names of witnesses. If you don't have any witnesses, state "None at this time". You can use that answer with some of the other interrogatories, as well.

In #2 for the requests for production, they asked for copies of documents you identified in your answer to the complaint. In your answer to the complaint, did you refer to any documents you might have that would support your defense? If not, you would answer #2 with "none".

The same goes for #3 & #4 in the production requests.

#5 asks for proof of all payments. If it were me, I'd state that "Defendant is searching her records and will respond if any such records are located." However, that's merely a delay. If the attorney chooses, they could subpeona your bank records. I don't know if they would or not.

You should really send your own discovery requests. For production of documents, you want a copy of the bill of sale from Chase to Midland. I'd also request copies of all credit card statements related to the account.

Are you judgment proof?

If you don't mind, could you write what was stated in the Chase affidavit? Leave out your identifying information, of course.

[Geannie]

The affidavit of sale from Chase reads as follows:

AFFIDAVIT OF SALE

STATE OF FLORIDA

COUNTY OF SEMINOLE

I am an officer of Chase Bankcard Services, Inc., an affiliate of Chase Bank USA, N.A. ('CHASE"), and I am authorized to make this affidavit.

Based upon a review of chase's records, which records are made at or near the time of the occurances set forth therin by, or from information transmitted by, a person having knowledge of those matters, and kept in the ordinary course of Chase's business, MY NAME, has a credit card account with Chase, account number XXXXXXXXX. The account was sold and transferred to Midland Funding, LLC on or about May 13, 2010. At the time of sale to Midland Funding, LLC, the amount due on the account pursuant to the terms of the cardholder agreement between Chase and MY NAME was $8,087.86.

The records of Chase indicate that the last payment on the account was made on January 17, 2008.

The records of Chase show no unaccredited payments or credits to the account or any disputes which were not resolved pursuant to Chase's procedures and after a reasonable investigation wen the account was sold.

Chase has no further interest in said account for any purpose.

On behalf of Chase Bank USA, N.A.

by: Jeffrey Judd

STATE OF FLORIDA

COUNTY OF SMINOLE

Sworn to (or affirmed) and subscribed before me this 21st day of March, 2011 by Jeffrey Judd, who is presently known to me.

Notary - Denise Nunez

[Geannie]

What would make me judgment proof? I own my home, but its not worth more than the homestead exemption, and my car is an old 90's model, so no real value there. Don't really have anything else but a lot of debts owed to friends and family

[BV80]

This was originally your dad's account. You say you were added as a user.

1. Were you merely an authorized user or a joint account holder?

2. Who made the last payment?

3. Whose name and address is on the cc statements?

Your wages cannot be garnished. As long as your home stays under the exemption, it should be safe. A judgment lasts for 10 years in SC. It cannot be renewed. In other words, whatever exemptions apply to bankruptcy also apply to judgments in our state.

Here's the link to the Code of Laws and exemptions:

South Carolina Legislature Mobile

Edited August 6, 2012 by BV80

[Geannie]

Okay then, can someone help me with questions I should ask in my Discovery questions to them?

[BV80]

I'd ask for:

1. A copy of the Bill of Sale from Chase Bank to Midland Funding.

2. A copy of the contract or agreement between Chase Bank and Midland Funding evidencing the terms and conditions related to the alleged sale of the account which is the subject of Plaintiff's Complaint.

3. Copies of all credit card statements related to the account in question. These copies should include the first billing statement issued after the account was allegedly opened, the last billing statement issued on the alleged account, and all billing statements in between.

4. A copy of the applicable cardmember agreement.

5. Copies of all documents Plaintiff intends to use at a hearing on this matter.

If you don't mind, would you please answer the questions in my previous post? Your answers might possibly determine some other requests.

[legaleagle]

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow document governing this transaction.

[Geannie]

Before going to Court on the 9th of August, I decided to talk to an attorney, actually I talked to two different attorneys. Both told me there was no way to beat the case, and both offered their services to negotiate a 'better' settlement for me. One needed a retainer of 1K the other 2K, the 2K attorney said he could get them to settle for about half. I went to Court simply told the Judge my circumstances, what had transpired when I had tried to talk to one of the Korn attorney's previously, etc. The Judge was great, he refused to grant their Motion to Compel Discovery and Ordered them to work on producing the original signed credit card agreement. He also urged them to work with me to come to a settlement agreement. I love this Judge. Outside the courtroom, the Korn attorney talked with me and I agreed that I would get back to him with a settlement offer. After some offering and counter-offering , we finally agreed to a little over 1K to settle. I'm happy with that, glad to have it done and over.

[BV80]

It's nice to know there's some judges in our state that have some compassion. I'm also familiar with the law firm who handled the case, and they are not easy to fight.

As long as you're happy and satisfied with the outcome, that's all that matters. You stood up for yourself, and the result was a reasonable settlement. Good job!

Edited September 2, 2012 by BV80