Being sued by Midland Funding LLC

[toyfigure99]

Hello everyone,

Today looking through the mail, to what I've been anticipating on, there was a letter from the court house. Yes, Midland is suing me as I kinda knew they would. If anyone here is a bit familiar with Wisconsin's law, that would be a great help, though nonetheless, any help is welcome and much appreciated.

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.) Kohn Law Firm

3. How much are you being sued for? $2,036.36

4. Who is the original creditor? (if not the Plaintiff) MBNA which owned by BOA

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

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

7. Was the service legal as required by your state? I believe so

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? They sent me a notice in May 2012 of pre legal notification demand payment and if I don't response, they'll forward to attorney in my state. Kohn sent me a letter, I sent DV letter.

9. What state and county do you live in? Wisconsin, City of Eau Claire. County Eau Claire

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) From my credit report, 06/2007

11. What is the SOL on the debt? Original debt in MN but I live in WI now, both 6 yrs if I read that right.

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 I think, 9/18/2012

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. Yes

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? Did not see a respond paper with questionnaire. The procedure I received stated that if I do not agree I must appear on court date to dispute. Local court dictate all small claim action should undergo a mediation before trial.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None. Just the state of Wisconsin complaint form SC-500 as cover page. Their complaints on second and third page. Last page is the procedure for me (defendant) for small claims.

Story short (though I wrote this in my other thread in the DV section), I used to live in Minnesota and around 2006 is when I signed for the CC under MBNA which is purchased by BOA if I"m correct. Made some mistakes and can't pay CC. I lived in Wisconsin now after I got married. I only found out about this after Midland sent me the notice I explained above in May 2012. When I sent in the DV requesting Validation, they sent back that notice from May, a copy of a statement with BOA with my name, account number from 2008, and a chart like statement stating they are the current owner, previous balance was $2,036.36 with interest rate of 11.9% and now balance is $2,436.16.

I have NO EXPERIENCE with any kind of law and was only able to get through the DV phase thanks to valuable helps from here (especially coltfan). As I wrote above, there was no letter to response back with my answers or anything. On the Wisconsin form, the clerk only check the box I must appear at the time and place stated. The procedure for defendant also specify this as well that all small claims must undergo a mediation before trial to attempt to settle. If agreement is not met, then a date for trial will be set and I will be informed by mail.

I read and absorb what I could, very helpful info and while some can relate to me, others not so much and thus I made this thread to get more help. Since it is not the hearing to provide witnesses or present exhibits, I'm not sure how to go about this. I know I will not agree to anything they say during this Mediation, to settle up, so a trial is quite inevitable. If anyone has experience with attending a Mediation or lived in WI for that matter, your help will greatly benefit a poor/penniless not an ounce of law person like me.

If there's any question you'll like to ask to further aid my quest to being able to sleep again, please don't hesitate. I will ask more questions for you guys later on knowing a trial is on the way but I want to see what this Mediation is like. I am dead nervous so if there's even a slime chance I might win, please do address.

What are some things to keep in mind while I attend this mediation?

What are things/ways I can say that will not allege that I owe this debt?

Will the mediator just ask question to both sides or is more of an interrogation?

What are other options/steps I can take to assist me (discovery)?

I WILL UPDATE AS THIS PROGRESS

Edited August 29, 2012 by toyfigure99

[toyfigure99]

bumping, think I'm getting buried here Q.Q

[TomnTex]

Try going with ARB, lots of info on here about it, should knock them out of the ball game.

[toyfigure99]

Try going with ARB, lots of info on here about it, should knock them out of the ball game.

Yes, I read that....thought I'm still unsure of how to use, I kinda wanted to utilize as a last resort.

After doing some research and posting around, members from another board gave a quite solid ground that I may be able to win, at least I think so. From my credit report this contract/debt was first signed on in 2006, I managed to find a copy of the agreement from then and there's section on there that says and I quote:

"44. WHAT LAW APPLIES - This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws."

If I read this right and understand it correctly (with help from other members) and by digging around, I can use this clause to get Delaware's SOL of 3 years by using Wisconsin borrowing statue instead of the 6 years SOL we have here in WI. If the opposing side argues that this section of the agreement is unconscionable ''due to Wisconsin Consumer Act that WI Statute applies even under WI Statute 893.07, then that would also mean the whole contract is unconscionable. A portion of a contract cannot stand on its own as unconscionable. It taints the entire contract'' (I paste this from another board, they worded better than I could). Severability clause? And since there's no contract, there's no claims, which means no debt....right? (correct me if I'm off on this) So pretty much, they'll have to let me borrow the 3 years SOL or argue that their contract is unconscionable and therefor is inadmissible.

My other question is, when can I motion for a dismissal of the case using this? Can I do it right now, while there's still 2 and a half weeks away or do I have to wait until in court to present this?

Edited August 30, 2012 by toyfigure99

[BrunoTheJDBkiller]

Wisconsin is okay for SOL arguments, but why go through this? Try arbitration first. For this amount they'll dismiss. Would you spend 5,000 to collect a 2400 debt you paid 30 for? Neither will they.

[toyfigure99]

Wisconsin is okay for SOL arguments, but why go through this? Try arbitration first. For this amount they'll dismiss. Would you spend 5,000 to collect a 2400 debt you paid 30 for? Neither will they.

That is a good point and it is with Kohn Law Firm too, to which I read, TrueQ even lost to them once. Doesn't give me much hope and I have too much to learn. When can I motion to arbitrate? During my court date or right now?

From my agreement that I found, the forum for arbitration is with NAF but if I'm not wrong, they're kinda out of the picture so whom will I send for? AAA or Jams?

[toyfigure99]

To touch up on what I've said above, when is it "too late" to file for arbitration? For anyone in Wisconsin, what paper would I need if I'm gonna file for one?

[BV80]

Linda7 is the resident arbitration pro. Bad98Roadster is another one. Read the following threads if you haven't already.

http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html

[toyfigure99]

Linda7 is the resident arbitration pro. Bad98Roadster is another one. Read the following threads if you haven't already.

[l][/]

[][/]

Yes, thank you for that but I'm still unsure of how to file for arbitration. Do I just call one of the arbitration off (like AAA or Jams) and tell them I'd like to do arbitration or do I wait until my court day to ask the commissioner/judge for it? My court date, as I've stated in my initial post is only for Mediation and not the actual trial. If the other party and me cannot agreed then a trial date will be set.

[Linda7]

Yes, thank you for that but I'm still unsure of how to file for arbitration. Do I just call one of the arbitration off (like AAA or Jams) and tell them I'd like to do arbitration or do I wait until my court day to ask the commissioner/judge for it? My court date, as I've stated in my initial post is only for Mediation and not the actual trial. If the other party and me cannot agreed then a trial date will be set.

What year was the alleged account opened and what year was the default? I'll check about an agreement when you tell me the years involved.

Another thing - have you checked out Wisconsin's borrowing statute?

Also check out their statute of repose.

I'd go over and post at debtorboards regarding this issue as there are others there from Wisconsin that know the specific details regarding what you are looking for. Debtorboards - Sue Your Creditor and Win! - Index

Edited September 5, 2012 by Linda7

[toyfigure99]

What year was the alleged account opened and what year was the default? I'll check about an agreement when you tell me the years involved.

Another thing - have you checked out Wisconsin's borrowing statute?

Also check out their statute of repose.

I'd go over and post at debtorboards regarding this issue as there are others there from Wisconsin that know the specific details regarding what you are looking for. []

Well, Linda, the alleged account was opened back in 2006 (to which you helped me found an Agreement a couple weeks ago) and was defaulted in 2007 so that would make it 5 years. Per Wisconsin SOL, it has not passed yet (6 yrs for WI), however, the borrowing statue I can probably use Delaware 3 years.

[toyfigure99]

Anyone? Please, your inputs will be most helpful.

[BV80]

You could try using the DE SOL.

"Wis.Stat. § 893.07. (Subsection (1) is the pertinent provision here, of course.) Wisconsin considers a cause of action 'foreign' if the underlying injury occurred outside the state." Guertin v. Harbour Assurance Co. of Bermuda, Ltd., 141 Wis.2d 622, 415 N.W.2d 831, 833-34 (1987); Scott v. First State Ins. Co., 155 Wis.2d 608, 456 N.W.2d 152, 154 (1990).

What's the cause of action? Breach of contract?

[freddiemac]

some mistakes I made with midland were I didn't seek permission with the court prior to dv'n. So when I went for a motion to compel, the judge threw it out. I had an attorney and I still ended up settling with the woman who showed up for trial......good luck! You sure can learn a lot from just lurking around here!