Nikki_Swan

Midland/Minnesota/Chase/SSI/Disabled

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I have read and read for a couple of weeks and have a couple of particulars that have me stumped, so here is the first part:

1. Who is the named plaintiff in the suit? My brother

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

3. How much are you being sued for? $10,000

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

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

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

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

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? Minnesota

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) May 2008

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

If Miinnesota applies, 6 years, if Chase in Delaware 3 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

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. Nope

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? Sept 6th


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None

Does that SOL apply and is that the only defense that I put in the answer? (I read about "Lack of Standing", but then it has to be proven?)

Thanks so kindly for any help/suggestions, I really appreciate it! :-)
 

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I bet if you look on the summons and complaint, you will not find a court case number and if you called your County Courthouse, they will not have a case filed. You still need to answer however because in Minnesota, a case does not need to be filed in order to serve a summons and complaint. You have 20 days to answer.

Do you have a Chase agreement that shows Delaware SOL applies? If not, I would not use that as an affirmative defense right away. You can request the card user agreement though as part of discovery and can amend your answer if you find out later in discovery that Delaware law applies.

If there is no case filed, then the answer needs to be served on the attorney. That can be done by someone who is not a party of the case send the answer in the mail to the attorney. Make sure to send it CMRRR. If you don't answer, you have lost. If you do answer, you have a good chance of winning. DO NOT FILE ANYTHING WITH THE COURT UNLESS THE CASE IS ALREADY FILED. They will make you pay the filing fee which is what the Attorney for Midland wants. You want to back Midland into a corner where they either have to pay the court fees themselves or give up. If a case has been really filed, than the above does not apply and you follow the usual steps of filing the answer with the court.

Once you file your answer, discovery will begin. You serve discovery in the same way you serve your answer. What you want is a Bill of Sale and Chain of Sale from Chase to Midland and the cardholder agreement. If they sued on contract, you want a copy of said contract (not likely). If they sued on account stated, you want an accounting of the balance from the last time the account was at 0 (that is what it takes to prove account stated in Minnesota). You can also do interrogitories and admissions but I will let others describe that.

You will also get discovery requests. When the come in, this board can help you best answer them. Serve those in the same way you served your answer and discovery requests.

Eventually, you will reach an impasse where the case has to be filed in order for a judge to make a decision on something. If neither of you decides to file, then you are the winner because the plaintiff has to be the one to prove their case. Most likely, they will let this sit for a year after your last discussion with the attorney and then send you a motion for dismissal w/o prejudice. That would be the end.

You could tell the attorney about having all exempt income but they will not care and you will see why below.

Now lets say you don't fight. After all, your brother's income is all exempt. Here is what will probably happen. After 20 days, they will file for a default judgement. That will be done by a court clerk without the judge even looking to see if they can prove their case. They will then pay the court fees knowing that they have a judgement. Your brother will have 20 days to appeal but most do not. After that, they will do a financial deposition to see if your brother has any assets they can attach. If not, they do these depositions every 6 months hoping your brother will mess up once. Once he does, the plaintiff will request a show cause hearing in front of the judge. If your brother does not answer that or has insufficient cause to not answer the financial deposition, then the judge will either have him thrown in jail or an arrest warrant. The bail is usually set at the same amount as the debt which is then attached by the plaintiff. This is why it is better to fight.

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Yes you are correct, there is no case number, I guess "pocket service".

1. So he plans to answer for sure, but what does he have then as defenses?

2. Does he use "Lake of Standing" NOW in his answer?

What is meant by CMRRR? I am thinking certified?

Thank so kindly for you kind reply... this helps a ton

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Guest usctrojanalum

i'd say fight it. yes, his income is exempt now but midland is beatable and things do change - even things you can't possibly foresee. My life did a total 360 from where i was in 2009 until now, too many things can happen. Having income that is exempt now, does not mean you will not have assets that are not exempt in the future.

That's why it's better to fight it imo. 5 years from now say your brother gets an inheritance or is the beneficiary on some life insurance policy or gets some money from somewhere that is totally unforeseen, that money could be subject to execution then.

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His defense is the denial of their accusations. Once he provides an answer, it is up to the plaintiff to prove their case before you have to offer up any defense which they cannot do under Minnesota law.

You cannot bring up any affirmative defense that you cannot prove but you can amend your answer once discovery is finished. That is why you ask for stuff like the Bill of Sale and the cardholder agreement. I therefore would not use Lack of Standing at this point.

CMRRR = Certified Mail Return Receipt Requested

Remember, it has to be mailed by someone who is not a party of the suit AND whoever mails it has to fill out an affidavit of mailing.

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Fantastic, thanks WhoCares1000, so appreciate it, I just talked to him so I am going to help fill out the answer tonight and I will send it certified.... I have nothing to do with the case, I can sign he affidavit... thanks so much!

-nikki

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GENERAL ANSWER--I deny everything in the complaint except as specifically
DEFENSES -- I claim the following Affirmative Defense(s):
1. I don't owe all of the money alleged.


After further chewing on this, I am taking this out as I would think that it actually implies guilt.

So defenses blank?

-nikki :<img src=:'>
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You might add this info:

Exempt income:

If your only income is exempt, you should add the following paragraph to the letter you send:

“Moreover, my only source of income is exempt from collection. I have no income or assets

that can be lawfully collected for an enforceable claim or debt. This letter serves as notice of

the fact that I do not have any assets or income that are subject to collection under the law.

In the event this debt is sold, this letter shall be included in my file to ensure that the buyer

is put on notice of the same. If you or any subsequent holder of this debt attempts to attach

exempt funds in order to collect this debt, you will be subject to wrongful attachment

litigation.”

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Change it to "I owe the Plaintiff nothing." The letter you refer to is called an insolvency letter. It may work, it may not. Midland likes judgments, that's all they care about. They hope you'll hit the lottery, or when you go to the big courtroom in the sky maybe your estate will have some value. Sometimes they sell judgments to other bottom feeding scum like J G Wentworth.

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First off, the answer is not to be served until September 18th. I would not send it in until the 10th or 11th at the earliest and take the time to learn the Minnesota Rules of Civil Procedure as well at learn how to do an answer.

For example, I think you have to do a separate line for each paragraph admitting or denying each one rather than grouping them in one answer.

The defenses section are for affirmative defenses which you must prove (Unclean hands is an example). What I would put in that section is:

"The defendant does not have any affirmative defenses at this time but reserves the right to amend this answer should any affirmative defenses be discovered."

Your denials at the top are enough to tell the plaintiff that you do not think you owe this debt. You do not need to state that again.

What you may want to do is try to get to the courthouse either tomorrow or sometime next week and see if you can find a case where a lawyer successfully argued against Midland and won. If you can find one (it is like finding a needle in a haystack), then get the case file and see how they did the answer follow the lead of that lawyer.

Also take a look around the Minnesota Courts website. In fact, here is a link to the forms from the MN Court website for answering a civil action: Court Forms. If you use those forms, the court will accept them. You will also find links to the Minnesota Rules for Civil Procedure which you must read if you are to be successful.

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The thing to remember is that Affirmative Defense are that they become yours to prove. Leaving it blank does not mean you have no defense, they still have to prove their case if you properly challenge them. Since this is Midland, there is no way on earth for them to pony up any sort of viable case when a CIC member fights them properly.

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As for putting the answers on each line, I filled out a form that LawHelpMN.org has on their site, and I copied exactly the letter and answer from it, however I am going to change it to what you suggested after reading the instructions from the MN Court Forms link you listed.

Thank you everyone so much for this help...what a great community this is. I will find some way to pay it forward! :-D
-nikki

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---- UPDATE -- UPDATE -- UPDATE -- UPDATE!!! -------------


Per the fantastic info here, we answered the complaint about a month ago...

Now this week, a letter from Midlund (a manager, NOT a lawyer)

"We have received your Hardship Request Form,...

Please send us copies of you Bank Statement, Proof of SSI, etc..HUH??????
:shock:

Plus at the same time, we now have a brand new demand letter from a totally DIFFERENT lawyer!

Now my new question is, do we reply to Midlund, or do we reply to the new lawyer, perhaps with a copy of the original complaint and answer?

Thanks soooo much!

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I would not give Midland any financial information unless mandated by the court.

The only good part is that the amount the new lawyer want is $3,000 instead of $10,000.

I doubt this is the same account. Most of our posters have several credit card debts, check the account number.

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I have read and read for a couple of weeks and have a couple of particulars that have me stumped, so here is the first part:

1. Who is the named plaintiff in the suit? My brother

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

3. How much are you being sued for? $10,000

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

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

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

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

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? Minnesota

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

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

If Miinnesota applies, 6 years, if Chase in Delaware 3 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

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. Nope

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? Sept 6th

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. None

First, he is on Social Security, Pension and Disability. So his income is totally exempt, correct?

Second, does that SOL apply and is that the only defense that I put in the answer? (I read about "Lack of Standing", but then it has to be proven?)

Thanks so kindly for any help/suggestions, I really appreciate it! :)

---- UPDATE -- UPDATE -- UPDATE -- UPDATE!!! -------------

Per the fantastic info here, we andswered the complaint about a month ago...

Now this week, a letter from Midlund (a manager, NOT a lawyer)

"We have received your Hardship Request Form,...

Please send us copies of you Bank Statement, Proof of SSI, etc..

HUH??????

Plus at the same time, we now have a brand new demand letter from a totally DIFFERENT lawyer!

The only good part is that the amount the new lawyer want is $3,000 instead of $10,000.

Now my new question is, do we reply to Midlund, or do we reply to the new lawyer, perhaps with a copy of the complaint and answer?

Thanks soooo much!

Did you know that your ssdi is exempt for garnishment? Anyway, if you submitted your answer wait for them to reply with opposition. I wouldn't send any of my vital statics to anyone if I were you, including bank statements, etc.

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I would send Midland a letter stating that this is not a valid discovery request and that they should communicate with you only through their lawyer since there is an active lawsuit open. You do not have to answer any of those questions right now.

Speaking of discovery, have you sent yours out yet? If not, start looking at the board and see what you need to demand from them. Basically, you want what it would take to prove their case. If you do a search on these forums, you can find out real quick how that works. There is someone who recently (within the past year) that got a dismissal from the same attorney after the got to the stand still with discovery.

Also realize that at some point, you will be sent discovery items that you need to fill in. This board can help you with that.

Right now, you do not need to give Midland any financial information and if you are successful in this fight, you may never need to give them that information (because they cannot collect until they have a judgement). You have taken the 1st step but you are not out of the woods yet.

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You have no obligation to respond to improper discovery requests. You have been sued, therefore only proper discovery conforming to court rules applies. The requests must follow the format and be signed by the plaintiff's attorney. Letters are not proper requests, be clear about this, was it a letter or a discovery request? Interrogatories, Requests for Admissions, or requests for Production of Documents are discovery requests. Everything else goes in the garbage. However, considering you sent this hardship thing with which I am not familiar, I would send them the SSI information and an insolvency letter, nothing else. That covers the basics. The bank account may be required at a later time, suppose you had a million dollars on deposit, that's what they are looking for. leave this up to the court.

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I would not answer except to state that this is not a proper discovery request. Even if it was, asking for account and income information is an improper request prior to a judgement being issued. The case is only at the discovery of relevant evidence to prove said debt right now.

In any case, if the OP follows the advice on these forums, odds are, they will not have to make a hardship request because the plaintiff will not win their case. Without a judgement, all any JDB can do is ask nicely for the money.

There was a PDF of a paper done by a Minnesota lawyer that was posted on this board about 2 years ago that stated why court debt collection in Minnesota would be difficult IF it were not for the pocket docket process. The lawyer stated that for a contract case, there must be a signed contract and for an account stated case, there must be statements going back to $0 (3 statements do not cut it in Minnesota). Most OCs and all JDBs cannot come up with this evidence when push comes to shove.

However, because of pocket docket, the collectors have been able to fool many Minnesotaians to not answer the case and then they get a default with minimal evidence and without the case being looked at by a judge. The minute you answer however, that throws that out the window. What happens then is that usually with discovery, you get to an impasse that requires the court but neither side wants to pay the court fees (the plaintiff does not want to pay the fees if they are not 100% sure they will win). When that happens, the only thing the plaintiff can do is dismiss the case or pay the fees and get it in front of a judge. Since only about 2% of the alleged debtors answer the complaint and discovery correctly, the plaintiff will dismiss rather than pay and go after easier debtors.

So my answer is, tell Midland that at this time, this request is improper due to a case being opened and that they have to send all correspondence through their attorney at this point. I would copy the attorney too. At the same time, the OP needs to start to get their discovery requests together and get those to the plaintiff attorney.

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I would not give Midland any financial information unless mandated by the court.

I doubt this is the same account. Most of our posters have several credit card debts, check the account number.


Duh! Ooops, yep this is indeed a totally different account, however this one he has no idea of.

Thanks so much for the fantastic help... off to answer these and stay ahead of them!
:-)
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