Midland Funding Summons. Help???

[NiceGuyUT]

Hey guys I hope you can help me. I have been dealing with MF for about 2 months now. The debt they are trying to collect on is out of the SOL for the state of Utah. The date of last default on my account is 5/2008 I have bank records that prove this (it was Washington Mutual at the time.)

I sent a FOAD letter to midland explaining that this debt was time barred. They answered with a summons at my door and I am now being sued.

MF is using J&M LLC

without linking the entire summons here is a copy of the complaint.

Complaint:

Case no. Blank

Judge: Blank

Claims:

1. Defendant resides in this county and/or signed the contract giving ride to this action in this county. Jurisdiction and venue are proper in this court.

2. Defendant entered into a contract with CHASE BANK USA, N.A. opening an account ending in xxxxxxxxxxxx7820, which contract was subsequently assigned to plaintiff.

3. Defendant has defaulted on the obligation under the contract.

4. The amount charged off on the account was 3,220.23. There is now due and owing to the plaintiff the amount of $3220.23 plus accrued interest of $1189.28 as of October 10, 2012, at the rate of 10.00% per annum less any payments made. In addition, plaintiff is entitled to recover interest from October 10, 2012, until the date all amounts due are paid.

5. Further, equity requires defendant to pay the value of the benefits received.

Demand: Plaintiff requests judgment as follows:

A. For Damages in the amount of 3,220.23 plus accrued interest of $1189.28 as of October 10, 2012 at the rate of 10.00% per annum less any payments made;

B. For additional interest from October 10th 2012 until amounts dues are paid at the rate of 10.00% per annum;

C. For Costs of court both pre-judgment and post judgment; and

D. any other relief as the court deems just and equitable.

HELP!?! I have started to read everything I can on this forum.

thanks guys.

Edited October 29, 2012 by NiceGuyUT

[FailedBiz]

@NiceGuyUT. I'm going through litigation with the same law firm in Oregon. I have a debt much larger that I'm going through in my situation, and I have found this whole site to be very helpful. The first thing you have to do is just take a breath and answer that summons. There a lot of examples on this and even if you go to that sticky posting that showed you the questions you have to answer when posting here, you'll find a link on "How to fight credit debt..." It is where I got started on answering my summons. If you are dealing with a time barred situation, as I feel I am as well, be sure to answer with an SOL Affirmative Defense. I have even filed a Motion To Dismiss based upon those grounds. Now, I'm a total noob at this, so hopefully someone else with more experience will come along and comment. But most importantly, you have to file that Answer.

[BrunoTheJDBkiller]

The date of last default on my account is 5/2008

What is the date on the summons? Be advised you have to absolutely prove the date of last payment, the SOL starts when the next scheduled payment was not made. This is in every cardholder agreement. Utah allows you to use the SOL of the creditor, from what I have read. Chase is Delaware law, 3 year SOL. Utah is 4 years per statute 78-12-25. Either way, it looks like they waited too long. A motion to dismiss would be appropriate, followed by a countersuit for an FDCPA violation, suing on a time barred debt. See the U.S . FTC v. Asset Acceptance case for this. I believe there are also some state statutes you can sue under, see KentWA, he knows this best. He's from your area.

[NiceGuyUT]

The date of last default on my account is 5/2008

What is the date on the summons? Be advised you have to absolutely prove the date of last payment, the SOL starts when the next scheduled payment was not made. This is in every cardholder agreement. Utah allows you to use the SOL of the creditor, from what I have read. Chase is Delaware law, 3 year SOL. Utah is 4 years per statute 78-12-25. Either way, it looks like they waited too long. A motion to dismiss would be appropriate, followed by a countersuit for an FDCPA violation, suing on a time barred debt. See the U.S . FTC v. Asset Acceptance case for this. I believe there are also some state statutes you can sue under, see KentWA, he knows this best. He's from your area.

The date on the summons is Oct 10th and it was delivered yesterday. The only proof I have of last payment is my bank statement showing that my last payment was on 5/2008 and there were no more payments after that. Also on my credit report it shows the OC account going into default around that same time. July being the latest.

thanks again for everyone's help!

[BV80]

The date on the summons is Oct 10th and it was delivered yesterday. The only proof I have of last payment is my bank statement showing that my last payment was on 5/2008 and there were no more payments after that. Also on my credit report it shows the OC account going into default around that same time. July being the latest.

thanks again for everyone's help!

It appears this account is outside the SOL for the lawsuit. You have evidence. It's now upon the Plaintiff to show that the account is within the SOL.

Some courts have ruled that it's an FDCPA violation to file suit on a time-barred debt. Personally, I'd use that as a counterclaim. They've misrepresented the legal status of the debt. By suing, they've claimed the account is still within the SOL.

15 USC § 1692e - False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2)The false representation of—

(A)the character, amount, or legal status of any debt;

In Heintz v. Jenkins, the United States Supreme Court stated:

"A debt collector may not falsely represent 'the character, amount, or legal status of any debt,' § 1692e(2)(A)". Heintz v. Jenkins, 514 U.S. 291, 293, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

Edited October 29, 2012 by BV80

[BrunoTheJDBkiller]

Nail them, the US Government (FTC) sued Asset Acceptance under the FDCPA for suing on time barred debts. The complaint is online, they folded and paid a 2.5 miilion dollar fine. Maybe KentWA knows a consumer attorney who would take this for you.

[BrunoTheJDBkiller]

Hey BV80, how's the weather down there? Looks like you're getting hit hard. Stay safe.

[NiceGuyUT]

thanks everyone! I will look up everything you mentioned on here and see how to word my answer.

I really appreciate all the good advice! keep it coming.

[BV80]

Hey BV80, how's the weather down there? Looks like you're getting hit hard. Stay safe.

I'm not on the coast. Only thing I'm getting right now is some cold weather, but we have had some pretty good wind gusts that have knocked some branches down.

I appreciate your concern. How is it in your area?

[BrunoTheJDBkiller]

Right now we are having wind steady at 40-50 with gusts up to 80. Not much rain, fairly warm. New Jersey is Ground Zero, this thing is coming ashore at 5-6 PM with storm surges all along the coast from NJ to Maine of over 15 feet, that's the bad part. I too am well inland, so the wind is somewhat dissipated. The coastal towns take the brunt of the damage. So far I'm amazed the power is on, no leaves on the trees helps, less mass to push over into the wires. Glad you're okay, keep the lights on!!

[BV80]

I'm sending good thoughts your way and hope it doesn't get any worse for you. I'm glad you're okay, too. Stay safe, Bruno.

[BrunoTheJDBkiller]

Thank you, you know you are always in my prayers. You are one of the best here.

[NiceGuyUT]

quick question guys. Nothing has been filed with the court yet. Do I need to wait until that happens to send the answer? or should I get it done and send it to the attorney or what?

[BrunoTheJDBkiller]

Since you seem to have the complaint, file an answer. Copy goes to opposing counsel. It's a fairly general complaint, so give them a standard fairly general denial, they didn't provide much information. Pursue the SOL. If it is truly outside the SOL, file a motion to dismiss and attach a counterclaim under the FDCPA for filing suit on a time barred debt.

[BV80]

quick question guys. Nothing has been filed with the court yet. Do I need to wait until that happens to send the answer? or should I get it done and send it to the attorney or what?

Read your court rules. This is what they state about the commencement of an action:

Rule 3. Commencement of action.

(a) How commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint in accordance with Rule 4. If the action is commenced by the service of a summons and a copy of the complaint, then the complaint, the summons and proof of service, must be filed within ten days of such service. If, in a case commenced under paragraph (a)(2) of this rule, the complaint, summons and proof of service are not filed within ten days of service, the action commenced shall be deemed dismissed and the court shall have no further jurisdiction thereof. If a check or other form of payment tendered as a filing fee is dishonored, the party shall pay the fee by cash or cashier's check within 10 days after notification by the court. Dishonor of a check or other form of payment does not affect the validity of the filing, but may be grounds for such sanctions as the court deems appropriate, which may include dismissal of the action and the award of costs and attorney fees.

Your case hasn't been filed yet. The above (Rule 3(a)(2)) states that if they serve you first, they must file with the court within 10 days of service.

Rule 4. Process.

© Contents of summons.

©(2) If the action is commenced under Rule 3(a)(2), the summons shall state that the defendant need not answer if the complaint is not filed within 10 days after service and shall state the telephone number of the clerk of the court where the defendant may call at least 13 days after service to determine if the complaint has been filed.

Did the summons state the above?

[NiceGuyUT]

Read your court rules. This is what they state about the commencement of an action:

Rule 3. Commencement of action.

(a) How commenced. A civil action is commenced (1) by filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint in accordance with Rule 4. If the action is commenced by the service of a summons and a copy of the complaint, then the complaint, the summons and proof of service, must be filed within ten days of such service. If, in a case commenced under paragraph (a)(2) of this rule, the complaint, summons and proof of service are not filed within ten days of service, the action commenced shall be deemed dismissed and the court shall have no further jurisdiction thereof. If a check or other form of payment tendered as a filing fee is dishonored, the party shall pay the fee by cash or cashier's check within 10 days after notification by the court. Dishonor of a check or other form of payment does not affect the validity of the filing, but may be grounds for such sanctions as the court deems appropriate, which may include dismissal of the action and the award of costs and attorney fees.

Your case hasn't been filed yet. The above (Rule 3(a)(2)) states that if they serve you first, they must file with the court within 10 days of service.

Rule 4. Process.

© Contents of summons.

©(2) If the action is commenced under Rule 3(a)(2), the summons shall state that the defendant need not answer if the complaint is not filed within 10 days after service and shall state the telephone number of the clerk of the court where the defendant may call at least 13 days after service to determine if the complaint has been filed.

Did the summons state the above?

Yes the summons was commenced under rule 3(a)(2)

I called the county clerk this morning and she said that they see thousands of these a month and they always summon first, then file. She even asked if it was X company that was suing me and she was right.

however nothing on file for me yet, but I just received the summons yesterday.

Edited October 29, 2012 by NiceGuyUT

[KentWA]

You have them over a barrel on this one with violations. Some members including me would say wait them out and let them file and hit them with a counter claim when you answer. Then they will want you to dismiss and you can get money out of them for the violations. However if you do not think you want to fight them (It is not hard) then there is another tactic.

You can send via CMRR a letter to the lawyer tomorrow and tell them the last payment was 5/2008 and it is out of statute per 78B-2-306. (Note: this is like Delaware where the statute runs from date of last payment, not when the next one was due). Tell them that if they actually file a counterclaim for FDCPA and Utah Consumer Sales Practices Act (UCSPA) violations will be filed. Most often they will round file the case and never file it, but you still have them on violations and can sue them later.

Here are the violations as I see it. First FDCPA and UCSPA for filing a time barred suit. FDCPA and USCPA for violating the Utah Collection Agencies Act, which bars a JDB from taking assignment, collecting on or filing suit on a time barred debt. FDCPA is $1,000 per suit and UCSPA is $2,000 per violation. For JDBs and CAs, the Collection Agencies Act operates as a statute of repose, where they are barred from collecting on the debt when it is SOL.

Now if stupid J&M (this is Johnson, Mark right?) wants to fight it out, they have been known to waive the terms and conditions around and say written contract, and it is covered by the 6 year SOL. This is wrong and they want no judge to know it. The 6 year SOL is for Written Instrument. Title 9 the UCC defines an instrument in writing as a contract with a clear signature of the payer, *with* a promise to repay. Midland can not get their grubby little mitts on one of these since they do not exist for 99.9999% of credit cards. A written instrument is for secured transactions like a mortgage.

[KentWA]

Oh, I missed one. You will have to wait until 13 days after you were served to call the clerk and get a case number. Then you can file your answer since you have to have the case number in the caption of the first page.

[NiceGuyUT]

Thanks everyone! especially KentWA!

I really am not sure if I want to send them a letter and hope they back off or send them the counter suit with my answer. In the end I just want them to lay off.

I do not understand why their lawyers would pursue this when I already showed them and let them know it was past the SOL. Do they just hope that I don't show and they get a default? or do they know something I don't?

ugh. I need to find the thread that helps with writing an answer. I have zero clue.

I am pretty scared of being railroaded by some lawyer that knows more then I do.

thanks again!

Edited October 30, 2012 by NiceGuyUT

[scott huminski]

Midland lawyers don't read anything about the lawsuits they file in violation of the ABA Model Rules of Professional Conduct. They are per se vexatious litigators.

see midlandfunding.me

They didn't read your SOL letter.

The Midland business model anticipates default judgments not requiring an attorney to read the lawsuit they file and verify that it is legitimate.

If an attorney reads your letter, it would cut into the profit, so Midland robo litigates your case until it absolutely requires a paid attorney.

Welcome to the sleaziest publicly traded billion dollar corporation on the stock exchange that achieves massive profits from engaging in conduct like you described. Don't expect a fair hearing either as Midland and companies like it are huge income sources for the courts they use. Conflict of interest, you bet.

Edited October 30, 2012 by scott huminski
spelling

[scott huminski]

Here's a fairly good article about Midland Funding llc

fdcpa.me/midland-junk-debt-m/

no one should expect Midland Funding or its attorneys to act logically, ethically or legally. It is a highly unethical company making huge profits by terrorizing debtors and non-debtors with frivolous vexatious and patently illegal litigation.

midlandfunding.me

[NiceGuyUT]

Here is a copy of the letter I originally sent to Midland and there scumbag lawyers in September CMRR.

September 17th, 2012

Midland Funding,

RE; account number. __________________________

The subject account is past the Statute of limitations for legal action in the state of Utah.

Under Utah State Code the subject account has a four year limit for filing any legal action or collection. This notification is formal notice to you that any filing of such action by you, or your representatives or assigns, is therefore time-barred.

What you are attempting to do is clear, and continued collection activities, including reporting, verification or insertion of accounts, beyond their legal collection date, to any consumer credit reporting agency, may be considered extortion and/or fraud and subject to criminal as well as civil prosecution.

Please note that proof of your receipt of this notice may be used by me or my legal representative in further action.

Since this alleged debt is clearly past the legal time frame for continued collection activity, you will cease any further contact with me.

You are not to sell, transfer, assign, or share any information about me or this alleged debt with anyone else.

should I adjust this letter and send it again?

I am doing some research right now on how to file an answer also. I have zero experience on this.

Edited October 30, 2012 by NiceGuyUT

[BV80]

You have them over a barrel on this one with violations. Some members including me would say wait them out and let them file and hit them with a counter claim when you answer. Then they will want you to dismiss and you can get money out of them for the violations. However if you do not think you want to fight them (It is not hard) then there is another tactic.

You can send via CMRR a letter to the lawyer tomorrow and tell them the last payment was 5/2008 and it is out of statute per 78B-2-306. (Note: this is like Delaware where the statute runs from date of last payment, not when the next one was due). Tell them that if they actually file a counterclaim for FDCPA and Utah Consumer Sales Practices Act (UCSPA) violations will be filed. Most often they will round file the case and never file it, but you still have them on violations and can sue them later.

Here are the violations as I see it. First FDCPA and UCSPA for filing a time barred suit. FDCPA and USCPA for violating the Utah Collection Agencies Act, which bars a JDB from taking assignment, collecting on or filing suit on a time barred debt. FDCPA is $1,000 per suit and UCSPA is $2,000 per violation. For JDBs and CAs, the Collection Agencies Act operates as a statute of repose, where they are barred from collecting on the debt when it is SOL.

Now if stupid J&M (this is Johnson, Mark right?) wants to fight it out, they have been known to waive the terms and conditions around and say written contract, and it is covered by the 6 year SOL. This is wrong and they want no judge to know it. The 6 year SOL is for Written Instrument. Title 9 the UCC defines an instrument in writing as a contract with a clear signature of the payer, *with* a promise to repay. Midland can not get their grubby little mitts on one of these since they do not exist for 99.9999% of credit cards. A written instrument is for secured transactions like a mortgage.

I'm not trying to be disagreeable, but I read the applicable statute, and I don't think it prevents a CA or JDB from attempting to collect on a time-barred debt. I searched for case law to support it but couldn't find anything.

However, it definitely shows the Midland and the attorney are in violation of 12-1-8 of the UT code for filing suit on this debt.

[KentWA]

At this point I would just answer properly when the clerk gives you the case number after they have filed. You have already given them notice of SOL, this makes it a knowing and intentional violation. They will need to pay you to make the whole thing go away. The nice thing about that is you control the terms upon which the settlement is made. One of the terms is that they can not sell, transfer or assign the alleged debt ever.

If you want to get real tough on them, ask the lawyer during settlement if he wants to settle the FDCPA and UCSPA violations by him while you are talking, or settle it in a separate suit. You might want to have a copy of Brown v. Constantino et al handy to give him. "Because claims brought under the FDCPA are not barred by the judicial proceedings privilege, it is logical to conclude that UCSPA claims are similarly not barred." Brown v Constantino Law Office, P.C.

[KentWA]

BV80, the section of the statute reads:

12-1-8. Designating and limiting activities as to assignments.

Any collector having complied with the provisions of this chapter, may receive accounts, bills or other indebtedness, take assignments for the purpose of collections, and at the direction of the assignor bring suit as assignee, provided however, that all accounts shall be within the statute of limitations as provided by law. All legal processes, pleadings, and court representations shall be prepared and conducted by a duly licensed attorney, and a copy of summons and complaint, in all cases, shall be served on defendants.

This section clearly states that the accounts must be within SOL to take any action. The Department of Corporations has pulled at least one license after a stuborn consumer made a complaint about a 15 year old debt one JDB was attempting to collect on.