Midland vs Me (in MO)

[secretseven]

been reading for a few days now, taking in great advice from some greats such as coltfan, legaleagle, bv80 and brunotheJDBkiller (just to name a few).

so we'll start off with the basics. first off on the front page from the court it says and signed by the clerk October 22, 2012. on the second page it has October 17, 2012 but stamped filed on October 22, 2012. i didn't (well my BROTHER) didn't actually get served MY papers at my parents residence until the 29th (i just wanted you guys to know the dates). As i haven't lived there since i was 18.

Also wanted to note i never saw anything from Midland or with Midland's name on it until this, god honest truth, if i had i'm sure i would have followed everyones steps earlier and i wouldn't even be dealing with a summons, they probably wouldn't even have started a case. After seeing on the last page, with the "bill of sale" i notice at the top left they have some address that i lived at 5 years ago, and i only lived there for 1 year. Just adds to the humor in all of this.

i just want to thank everyone in advance for all the help and advice.

Ok on to the good stuff.

MIDLAND FUNDING LLC)

Plaintiff

vs.

secretseven)

Defendant(s)

PETITION

COUNT 1 - FOR MONEY LOANED

COMES NOW plaintiff and for Count 1 of its cause of action herein states:

1. plaintiff MIDLAND FUNDING LLC is a limited liability company duly organized and existing under law.

2. Defendant (secretseven) is a resident of (said)County, State of Missouri.

2. all right, title and interest in the right to receive payment as described below were assigned to plaintiff.

4. the original creditor BANK OF AMERICA provided money by credit card to defendant and/or for the benefit of the defendant and inteded that the money be repaid by the defendant.

5. defendant has failed to repay the money loaned and the balance due is (short of) $3000.00 per the exhibit attached hereto and incorporated by reference.

6. demand for payment was made on or about june 4, 2012.

WHEREFORE, Plaintiff prays for judgment against defendant in the sum of (just shy) $3000.00, together with interest thereon at the rate of 9% per annum from June 2012, and for the court costs herein expended.

COUNT 2 - ON ACCOUNT

COMES NOW plaintiff, ALTERNATIVELY, and for count 2 its cause of action herein states:

1. plaintiff incorporates by reference paragraphs 1,2 and 3 of count 1 as if set out in full herein.

4. defendant is indebted to plaintiff on account of credit provided by the original creditor BANK OF AMERICA to defendant at defendant's request in the sum of (close to) $3000.00 per the exhibit attached to hereto and incorporated by reference.

5. the charges on said account were reasonable.

6. after all offsets and credits due defendant, there remains a total balance due on said account in the amount of (shy of) $3000.00.

7. as a result of defendant's failure to pay the above balance is due. Demand for payment was made and refused.

WHEREFORE, plaintiff prays for judgment against defendant in the sum of (you got it) $3000.00. together with interest thereon at the rate of 9% per annum from june, and for court costs herein expended.

signed KRAMER & FRANK.

last page looks like the (i'm sorry "a") "bill of sale" i mentioned earlier, has my name and a 5 year old address. purchased on 09-2010 from bank of america, obviously account number xxx'd out except last 4 which could be ANY random numbers, my name is above the midland account number, with a statement date of 06-2012. bottom as the total (balance information it says)

court date set for 18th of DEC

[secretseven]

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.)

KRAMER and FRANK

3. How much are you being sued for?

(close to) $3,000.00

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

BANK of AMERICA

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

my disabled brother thought it was FedEx and was given papers.

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

via disabled brother

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

according to this--> Process Service Requirements by State - Summons Complaint in MO it was legal

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

i have never heard of the company, they were probably mailing stuff to a 5 year old address, who knows

9. What state and county do you live in?

MO, Platte

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

i haven't owned or used a credit card in over 5 years (but i don't have paper work to prove it, plus that would probably admit guilt aswell)

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

says 5 years in MO

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).

suit served, they filed motion of approval

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

no, being sued (no time for love dr. jones)

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, being sued was the first time i've seen the name MIDLAND

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?

after looking it over several times, jut just gives a court date, no days or dates listed as regards to responding

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.

i thought it was an affidavit, but it says PETITION. only other thing attached is what to appears to be a "bill of sale" from bank of america, with VERY little information on it

[Flyerfan]

The bill of sale they sent actually has your name, address and last four of your account number on it? Is it a bill of sale or an affidavit of sale?

[secretseven]

it is hereby ordered that Plaintiff's motion for approval and appointment of a private process server is sustained and the above-named individual(s) are hereby approved and appointed to serve process in the above captioned matter.

then it gives a huge list of names followed by numbers for each one, says "D&B Legal Services, INC" a few times

.... as private process servers in the above-captioned matter. IN SUPPORT OF SAID MOTION, Plaintiff states that the above-named individual(s) are on the Court's list of approved process servers and the information contained in their applications and affidavits on file is current and still correct.

dated, stamped, and signed by Clerk of the circuit court. OCT 22 2012

oh and case number/division: both hand written in, only page this was done on, though it was odd, because the other page that looks like version MIDLAND hand mailed in to request motion for approval, they left blank because it was a template, they didnt even bother putting that info in.

[secretseven]

The bill of sale they sent actually has your name, address and last four of your account number on it? Is it a bill of sale or an affidavit of sale?

it doesn't say anything honestly

its a copymachine copy.

secretseven

5 year old address

mo

__________________________________________

statement of account

__________________________________________

statement date: 2012-06-xx

debtor name: secretseven

Midland account number: (real numbers not x's)

current owner: midland funding llc

__________________________________________

issuer information

__________________________________________

purchased on :2010-09-xx

original account number: (all x's til last 4)

original lender: bank of america

__________________________________________

balance information

__________________________________________

total due: (short of) $3000.00

thats it, all it says, no title, no signatures, looks like a short trip to Excel

[Flyerfan]

Start here:

http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html

until someone from MO gets to you. There's a lot of reading there but it's all worthwhile.

[secretseven]

Start here:

until someone from MO gets to you. There's a lot of reading there but it's all worthwhile.

it IS a good read, and i did read it, spent all day reading it. but as others have said, not EVERY case is the same and i was told to start a new post.

thanks again for replying, any help is good help

[BV80]

The first thing you have to do is answer the complaint and file it with the court. Each allegation must be answered.

You said you haven't had a credit card in over 5 years. Did you have an account with BofA?

If you did have a cc with BofA at one time, is BofA on your credit report? That could help you determine the date of last payment.

Let's take it one step at a time.

[secretseven]

The first thing you have to do is answer the complaint and file it with the court. Each allegation must be answered.

You said you haven't had a credit card in over 5 years. Did you have an account with BofA?

If you did have a cc with BofA at one time, is BofA on your credit report? That could help you determine the date of last payment.

Let's take it one step at a time.

below is what i came up with, obviously using alot from what i've learned and read here, thanks again by the way

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint naming MIDLAND FUNDING LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

2. Admit.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

ANSWERS TO COUNT 2

1. As to the incorporated reference of paragraph 1 of count 1: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As to the incorporated reference of paragraph 2 of count 1: Defendant has previously admitted that averment. As to the incorporated reference of paragraph 3 of count 1: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

DEFENSES

1. Midland Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. Midland Funding LLC has not proven that they were retained by BANK OF AMERICA as its representative in this matter.

3. Midland Funding LLC has not proven that BANK OF AMERICA is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of BANK OF AMERICA with all of the original creditor’s rights and privileges intact.

4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

9. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.

[Flyerfan]

Just a suggestion. Stay away from "Lack of Privity". This shifts the burden to you. Stay with "Lack of Standing" as this keeps the burden on the Plaintiff.

You have to list that as a defense. Saying what they did not prove is not a defense.

Also after all of your "Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment", I would add ", therefore, denies."

[BV80]

Regarding your defenses, most of them are not valid.

1. Check to see if Midland is required to be licensed. If they are, are they licensed?

2. Midland is not collecting for BofA. They claim to have purchased the account. Therefore, BofA is out of the picture.

3. Same as #2.

4. Unless your state requires a credit card agreement to be in writing and signed by both parties, the statute of frauds does not apply.

5. They did state a proper claim.

6. Not a valid defense.

7. As Flyer stated, I'd go with Lack of Standing. Standing means a party has been injured and has a right to sue in order to be compensated for that injury. In order for Midland to prove an injury, they have to prove they own your account and that you injured them by not paying the debt.

If they can't prove ownership of the account, then they can't show that they were injured by not being paid. No injury...no standing to sue.

In my previous post, I asked if you'd ever had a BofA card. If you have, see if BofA is reporting on your credit report and if a date of first delinquency or last payment is shown.

It would also be a good idea to see if and what Midland is reporting on your CR.

[BrunoTheJDBkiller]

Definitely lose the defenses. Concentrate on the date of the last payment, this is crucial. MO allows you to use the creditor's statute of limitations....see statute 516.190. Just Google the number, it comes right up. BofA has a 3 year SOL, Midland is stuck with it. If you can prove this you also have an FDCPA violation for suing on a time barred debt. See U.S / FTC v. Asset Acceptance. A grand for you on that one, and there may be other state violations.

[Flyerfan]

Definitely lose the defenses. Concentrate on the date of the last payment, this is crucial. MO allows you to use the creditor's statute of limitations....see statute 516.190. Just Google the number, it comes right up. BofA has a 3 year SOL, Midland is stuck with it. If you can prove this you also have an FDCPA violation for suing on a time barred debt. See U.S / FTC v. Asset Acceptance. A grand for you on that one, and there may be other state violations.

Now that's good stuff.

[secretseven]

11/2007 was last payment according to history report

[BV80]

Definitely lose the defenses. Concentrate on the date of the last payment, this is crucial. MO allows you to use the creditor's statute of limitations....see statute 516.190. Just Google the number, it comes right up. BofA has a 3 year SOL, Midland is stuck with it. If you can prove this you also have an FDCPA violation for suing on a time barred debt. See U.S / FTC v. Asset Acceptance. A grand for you on that one, and there may be other state violations.

You beat me to it. LOL!

However, there might be a little problem with this. There's no MO case law regarding credit cards and where a default occurs. Some states have ruled that a default occurs in the state of the cc company. Others have ruled that the default occurs in the state of the defendant.

I'm not saying he shouldn't use the borrowing statute (depending on the date of last payment), but he won't have any case law to support a claim that the default occurred in BofA's governing state.

[secretseven]

ANSWER OF THE PLAINTIFF

Defendant, appearing pro se, for its reply to the Complaint naming MIDLAND FUNDING LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

2. Admit.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

ANSWERS TO COUNT 2

1. As to the incorporated reference of paragraph 1 of count 1: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies. As to the incorporated reference of paragraph 2 of count 1: Defendant has previously admitted that averment, therefore, denies. As to the incorporated reference of paragraph 3 of count 1: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, therefore, denies.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se.

Dated: 11/06/2012

this is what i currently have, i got rid of the defences, but now i'm not saying anything about "Lack of Standing". should i word something/add something different? thanks again guys

[BV80]

Definitely add Lack of Standing.

I'll ask one more time. Did you have an account with BofA? If so, have you discovered the date of last payment?

If you've never had an account with BofA., you can flat out deny the allegations. If you did have an account with BofA, you need to know the last time you paid on the account.

[secretseven]

11/2007 was last payment according to history report

yes, sorry if the post got lost up in the thread

[Flyerfan]

Some states require you to also submit a sworn denial or affidavit of denial with your answer. Check your state rules of procedure on this but you want that in early. This will counter their affidavits and make a MSJ harder.

[BV80]

yes, sorry if the post got lost up in the thread

Ok...sorry. If it were me, I'd get a copy of my bank records from 10/2007 to 12/2007. See if they show a payment made to BofA around that time.

Is the history report from your credit report? Don't assume a report is correct. Get your records to make sure.

[BrunoTheJDBkiller]

BV80, I would argue this two ways....first off, the OC is in Delaware. The card was issued from Delaware. The payments eventually go to Delaware. The OC insisted that the laws of Delaware apply. Therefore, the injury occurred in Delaware, because that is where the OC is. Default is described in the credit card agreement and both parties agreed to it, this should supercede any state statute defining default.

Second argument....OC is out of the picture, the "injury" has been passed along to Midland, so maybe we'll just see what CA law has to say about it if the issue comes up. I doubt any court will rewrite the terms of an agreement....something about "we will not make for you a contract you did not make for yourselves." Accounts are current until the day you miss a payment. How can a statute claim otherwise? If this could apply, they could sue you the day after you make a required payment.

Edited November 6, 2012 by BrunoTheJDBkiller

[secretseven]

well the only thing i have from them is summons for my court date, what appears to be an affidavit but says "PETITION" before listing the count 1s and count 2s. And this photo copy Excel table, which i assume they're claiming as a "bill of sale" but it doesn't say anything like that on it. I know my status is time sensitive. Should i just go ahead and print my answer, take it up to the court house to get it filed?

[BrunoTheJDBkiller]

Before you answer, look into the SOL. If this is zombie debt you have a counterclaim on top of a dismissal. Bank records, checking records, anything that establishes the last payment you made.

[secretseven]

Before you answer, look into the SOL. If this is zombie debt you have a counterclaim on top of a dismissal. Bank records, checking records, anything that establishes the last payment you made.

5 years across the board in missouri...

[secretseven]

i also came across this

2005 Missouri Revised Statutes - § 517.031. — Petition required, form--affirmative defenses, counterclaims, cross-claims, filing--extension of filing, when.

517.031. 1. The plaintiff shall file a written petition containing the facts upon which the claim is founded. A copy of any written instrument or account in support of the petition should be attached and filed. The pleadings of the petition shall be informal unless the court in its discretion requires formal pleadings.

2. Affirmative defenses, counterclaims and cross claims shall be filed in writing not later than the return date and time of the summons unless leave to file the same at a later date is granted by the court. No other responsive pleading need be filed. If no responsive pleading is filed, the statements made in the petition, affirmative defenses, counterclaims or cross claims shall be considered denied except as provided in section 517.132.

3. For good cause shown, the court may extend the time for filing any pleading.

(L. 1985 S.B. 5, et al., A.L. 1988 H.B. 1660)