Midland/JK JDB case, need some help.

[SFinAZ]

Info to get me started...

1. Who is the named plaintiff in the suit? Midland Funding

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

Jerold Kaplan

3. How much are you being sued for? 5Kish

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

5. How do you know you are being sued? (You were served, right?) Served summons at place of employment.

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

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

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? No correspondence as of yet

9. What state and county do you live in? AZ

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 3-4 years ago

11. What is the SOL on the debt? 6 yrs.

12. What is the status of your case? Suit served? Motions filed? Suit served, answer to summons has not been filed yet.

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? I have about a week left before the 20 day answer period is up, I am a little unclear on this part of the summons, do I just need to have my response filed with the court by the 20th day or is my court appt. on that 20th day? I will call the court on the next business day, but curious if anybody has any info on this. The claim is for the unpaid balance in the amount listed above, with court and attorney fees and any accrued interest.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent an affidavit with the summons and a xeroxed copy of a card member agreement.

[SFinAZ]

Any info you guys can help me with on this would be greatly appreciated, I have read over quite a few threads and its all very encouraging on these types of law suits filed by these law firms. Thank you in advance for any info you all can provide!

[BV80]

Unless it's written on the summons that you're to appear or have a hearing, you merely file you answer with the court and send a copy to the Plaintiff's attorney.

Start reading threads by Beergoggles. He's from your state and defeated Midland.

Here's one to get you started.

http://www.creditinfocenter.com/forums/there-lawyer-house/311778-midland-arizona.html

[Beergoggles]

The court will have a form for your answer and while you are there get a disclosure form and a few forms for motions. Might as well save your self some trips.

Here is whats going to happen. When you mail anything to the lawyers mail certified mail return receipt requested (CMRRR) you will oppose anything they throw at you, you will read the Arizona rules of civil procedure you will read the Arizona rules of evidence

your sued and receive a summons

you file an answer

they will probably file for default because your waiting for the last minute ( like I did)

You oppose default and make them look like the idiots they are

You and they will file disclosure (court has a form for this)

Most likely mediation (settlement meeting no judge) will be scheduled they will file a motion to appear by phone

You will oppose any motions to appear by telephone

You start working on your discovery needs ( no need to file with court just send to lawyer CMRRR)

You might or might not file a motion to preclude their affidavit ( I did it was granted because they failed to respond)

They WILL file a motion for summary judgement

You WILL oppose it and get advice here about how to oppose it

They hopefully are denied on their MSJ

They will call you to try to settle ( I said sure just dismiss and we can all have a nice day)

Trial will be set ( maybe at mediation but they will still file an MSJ)

They will continue to try to settle with you, you continue to tell them to take a flying leap through a rolling donut

Trail date shows up they will try one more time to settle, you will both be in court and lawyer will try to have his witness appear by phone and hopefully the judge denies

Lawyer will dismiss

You WILL object and state it must be with prejudice and with costs. Or you have a trial and most likely you will win a judgement

Lawyer will sulk his head down and agree to your terms

You will go out and have at least 5 beers or drink of your choice

You will sleep good

You will come back here and thank all of us and we will post all kinds of yahoo's and silly little guys congratulating you.

WHEW how was that?

[Beergoggles]

I kind of miss Mr. Esquivel and Mr. Dias. It was fun watching Ol' Patrick hang his head in shame when a high school drop out whoooped his a$$ in court. LOL And I might add it was might nice of him to send me the check on my birthday!

[SFinAZ]

Thank you for responding BG, I was hoping you would give me some insight into what to expect from JK.

I have read BG's thread all the way through and it was very inspiring.

When it comes to the summons, I found the form on the court website. I am a little unsure as to what to write on it. I do wanna fight it and intend on showing up. Should I keep it simple as to my answer or should I put in detail what I am fighting? I agree I should get this in ASAP, but I don't wanna rush it and miss something in the answer.

Can you guys post up any links on how to answer a summons? I searched last night and this morning and haven't been able to find much. Let me know if you need any more info from me.

[Coltfan1972]

WHEW how was that?

That was just beautiful, I mean beautiful. You are starting to sound more and more like somebody I know real well that sometimes is just a tad cocky when it comes to beating these clowns.

You know, it's not bragging when you back it up.

[Coltfan1972]

Should I keep it simple as to my answer.

Yes

Or should I put in detail what I am fighting?

No, you're not fighting, your ending the fight they started.

Can you guys post up any links on how to answer a summons?

Just go down, line by line, through their complaint and deny everything other than your name and address.

For example.

The Defendant denies the allegations in paragraph 1

The Defendant denies the allegations in paragraph 2

The Defendant denies the allegations in paragraph 3

Affirmative defenses (IF APPLICABLE)

The Plaintiff's claims agains the Defendant are, as a matter of law, time barred as the Plaintiff has filed its claim for damages against the Defendant after the applicable statute of limitations has expired.

The Plaintiff lacks standing.

If any allegation is not specifically admitted or denied and any such admissioin or denial is requried, the Defendant denies, in its entirety, any such allegation.

[Beergoggles]

yes do what Coltfan said

[SFinAZ]

The Plaintiff's claims against the Defendant are, as a matter of law, time barred as the Plaintiff has filed its claim for damages against the Defendant after the applicable statute of limitations has expired.

Sadly, I don't think SOL applies here. If you go back to my original post. Below:

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 3-4 years ago

11. What is the SOL on the debt? 6 yrs.

Looking through everything I have received from the JDB, they requested a change of presiding judge as well. Does this mean anything?

[1stStep]

Yes- get yourself down to the courthouse and oppose it - I will bet they are changing because a particular judge will be a little more favorable to them...

[SFinAZ]

That was my thought, but can you change a motion that has already gone through? Can I do it when I go down and file my answer to the summons this week?

[1stStep]

If the motion has been granted, then no... but you should put your opposition on file in case...

[SFinAZ]

Can they even choose a judge before a trial has even been set? This seems odd to me.

Sounds good...ill file my opposition when I go down and file the answer to the summons. I'm gonna write up the answer to summons today and post it up a little later for you all to see.

[BrunoTheJDBkiller]

Beer said there is a form you can use. Maybe he has one or knows where we can see it so we can advise others accordingly.

[SFinAZ]

Beer said there is a form you can use. Maybe he has one or knows where we can see it so we can advise others accordingly.

I think the form he was referring to is county and/or state specific. At least this is the form I found one my county courts website to answer a summons.

[SFinAZ]

Below is the start of my response to the summons. Does it look good or should I add more to it?

That defendant(s) is/are resident(s) of Blah County State of Arizona. That Defendant’s spouse, if any, is also responsible for the Debt that forms the basis of this action pursuant to Arizona Community Property Law because, upon information and belief, the debt was incurred during the marriage of the Defendants.

The Defendant is a resident of Blah County in the State of Arizona.

That heretofore and prior to the filing of this action defendant(s) did, for valuable consideration enter into a contract with plaintiff or plaintiff’s assignor, the terms of which are attached hereto and by reference made a part hereof: that balance remaining due and unpaid on said contract at the time of filing of this complaint is in the amount $XXXX.XX. The original creditor in the above-referenced action is Blank Bank the original creditor account number is 12345678XXXX1234 and the balance of the account at the time of charge off by the original creditor was $ XXXX.XX. The current principal balance due and owing is $ XXXX.XX. That said the defendant(s) has/have failed and refused to pay said balance and that said balance is justly due and owing to plaintiff herein.

The Defendant denies the allegations in paragraph 2.

The said contract does provide for reasonable attorney fees which are in the amount of not less than $ XXXX.XX if upon default together with interest.

The Defendant denies the allegations in paragraph 3.

WHEREFORE, plaintiff demands judgment against defendant(s) and each of them, for principal in the amount of $ XXXX.XX with accruing interest at X.XX% per annum from the date of the judgment with costs, together with the reasonable attorney fees of not less than $ XXXX.XX as provided by Contract, if upon default, and any further relief the Court may deem just.

The Defendant denies the allegations in paragraph 4.

As you can see I basically copy and pasted the summons and then answered below each paragraph in bold.

[Beergoggles]

Beer said there is a form you can use. Maybe he has one or knows where we can see it so we can advise others accordingly.

from my county

http://justicecourts.maricopa.gov/Forms/SCComplaintSummonsAnswer.pdf

[Coltfan1972]

Sadly, I don't think SOL applies here. If you go back to my original post.

Affirmative defenses (IF APPLICABLE)

Then that affirmative defense would not be applicable.

[SFinAZ]

I had an idea that SOL would cause the affirmative defense to not be applied here.

Any thoughts as to my answer to the summons above? This is based on Coltfan's earlier post. I have also added the below statement to the end in my draft.

The Plaintiff lacks standing.

If any allegation is not specifically admitted or denied and any such admission or denial is required, the Defendant denies, in its entirety, any such allegation.

Is this too much of an answer? Or should I keep it simple and just write the below as the answer:

The Defendant, for his answer to the Complaint of Midland Funding LLC, states as follows: The Defendant generally and expressly denies each and every allegation of the Complaint in its entirety and leaves the Plaintiff to its proof.

This seems as if I am just relying on the plaintiff for everything and feel like it leaves my defense and answer weak.

[Coltfan1972]

They say the same thing just different ways.

Your answer is the criminal equal of pleading not guilty to a criminal charge. There is nothing to it, you plead not guilty unless you want to claim an affiramtive defense like self defense or insanity.

I suggested a line by line denial and you are asking about a general denial. Both of ours deny what is important to be denied. I just like to go line by line in case there is something I don't mind admitting and then I throw the catch all in at the end.

[SFinAZ]

Coltfan, can you explain, going line by line in answering the summons? I am a little unclear as to what you are getting at.

Does answering each paragraph not answer it adequately?

Tomorrow I am going to the law library to start researching civil procedure and evidence procedure. Then going to start looking into the disclosure statement that needs to be sent to the attorney. This part seems a little daunting.

[Coltfan1972]

We are really doing the same thing. The paragraphs/lines should be numbered. You can do the I deny everything or you can say I deny line/paragraph 1,2,3,4, etc..........

I filed a 17 page federal complaint against a CA and their answer was only two pages. An answer is really simple. You just "answer" the suit and all your arguments are saved for another day.

[Beergoggles]

disclosure is easy. They will send you what they have to try to introduce at trial and you will do the same for them. I assume you have nothing to disclose to them RIGHT? Oh there is a form for that. Do not freak out when they file a MSJ because they will. see post #4 on the timeline of what will happen.

[BrunoTheJDBkiller]

Coltfan, can you explain, going line by line in answering the summons?

I think he means paragraph by paragraph, the way you posted it. If you don't want to repeat the same answer five times type it once and say that it applies to paragraphs 1,2, etc.