Midland Suing us

[lorne]

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.) gabrielova, staley, banks attorneys for Midland funding San Antonio

3. How much are you being sued for? over $7k

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

5. How do you know you are being sued? (You were served, right?) Papers stuck on front door

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

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

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? None that we are aware of

9. What state and county do you live in? texas Williamson

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

11. What is the SOL on the debt? 4 years

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

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? 10 days and no questionairre

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. they attached an old statement from chase dated 07/08/10

It states that we must answer by filing with the Justice court and we are not sure how to answer. What form or how do we answer. We will be going to fight this in court.

i had seen a post yesterday with someone that had almost the same issue but I have been searching for 8 hours today and cant find it. Any link to the earlier post would be greatly appreciated

[BrunoTheJDBkiller]

Check the posts of Texasrocker. He's you best bet, knows his stuff.

[racecar]

What are they alleging breach of contract or account stated?

[1stStep]

File an answer and deny everything as appropriate. Make 3 copies and file with the court.

Be sure to get it in ASAP - you generally have 20-30 days to file the answer with the court. Then send one copy to the plaintiffs.

[lorne]

What are they alleging breach of contract or account stated?

They are alleging both, breach of contract and account stated.

[lorne]

File an answer and deny everything as appropriate. Make 3 copies and file with the court.

Be sure to get it in ASAP - you generally have 20-30 days to file the answer with the court. Then send one copy to the plaintiffs.

what an I answering? Not sure how to respond to this thing.

[1stStep]

Did they use a form to file suit or was it on pleading paper (numbers on side)?

[lorne]

Did they use a form to file suit or was it on pleading paper (numbers on side)?

Numbers down the side

will this work?

CASE NUMBER: xxxx

MIDLAND FUNDING LLC |

VERSUS |

|

xxxxx |

DEFENDANTENTS

DEFENDENT’S REQUEST FOR DISCOVERY AND DOCUMENTS

DISCOVERY-CONTROL PLAN

Defendant intends to conduct discovery under Level 1 of the Texas Rules of Civil Procedure Rule 190.

PARTIES

xxxx, Defendant

Midland Funding LLC, Plaintiff

FACTS

Defendant is requesting a validation of debt from Plaintiff.

GENERAL DENIAL

Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every allegation made against her in Plaintiff’s Original Petition.

V. VERIFIED DENIALS

5. Subject to and without waiving the foregoing General Denial, or in the alternative, but only to the extent necessary to protect his/her rights, DEFENDANT specifically denies the following:

5.1 Defendant specifically denies pursuant to Rule 93.1 of the Texas Rules of Civil Procedure that I am liable in the capacity in which I am being sued. The Plaintiff has not provided any valiDation that they in fact have the legal ownership or capacity to sue the Defendant.

5.2 Defendant specifically denies pursuant to Rule 93.9 of the Texas Rules of Civil Procedure any consideration of an agreement between the Defendant, the Plaintiff.

5.3 Defendant specifically denies pursuant to Rule 93.12 of the Texas Rules of Civil Procedure that no proof or claim for damage has not been given as alledged which is the foundation of the Plaintiff’s action.

VI. AFFIRMATIVE DEFENSE

6. Subject to and without waiving the foregoing General and Verified

Denials, Defendant asserts, pursuant to Rule 94 of the Texas Rules of Civil Procedure, the following affirmative defenses which, singly or in combination, bar Plaintiff’s rights to recovery, in whole or in part, the damages alleged in Plaintiff’s Original Petition.

6.1 Plaintiff’s claims are barred, in whole or in part by due to Midland Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Texas, or solicit the right to collect or receive payment of a claim of another.

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

Defendant reserves the right to add Affirmative Defenses as Discovery may dictate.

VII. DISCOVERY

Pursuant to Texas Rule of Civil Procedure, you are requested to provide originals or copies of the requested documents or materials described below, within 30 days of the service of this request.

DEFINITION OF DOCUMENT

As used in this request, the term ‘‘document’’ means every writing or record of every type and description that is in the possession, control or custody of Plaintiff, including but without limitation to, correspondence, memoranda, stenographic or handwritten notes, studies, publications, books, pamphlets, pictures, films, voice recordings, reports, surveys; minutes or statistical compilations, data processing cards or computer records, files, disks, or tapes or print-outs; agreements, communications, state and federal governmental hearings, and reports, correspondence, telegrams, memoranda, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, diaries, graphs, reports, notebooks, note charts, plans, drawings, sketches, maps, summaries or records of meetings or conferences, summaries or reports of investigations or negotiations, opinions or reports of consultants, photographs, motion picture film, brochures, pamphlets, advertisements, circulars, press releases, drafts, letters, any marginal comments appearing on any document, and all other writings.

removed lines 6.3 to 6.6

Edited November 14, 2012 by lorne

[Public Enemy]

You want to submit your answer first and then do discovery, which is what you just posted, later.

Generally people just admit to things which they can't deny like their name and deny the rest.

Defendant admitts the allegations in paragraph one of the complaint.

Defendant alleges a lack of knowledge or information sufficient to admit or deny the allegations in paragraph two, three and four.

[Flyerfan]

You want to submit your answer first and then do discovery, which is what you just posted, later.

Generally people just admit to things which they can't deny like their name and deny the rest.

Defendant admitts the allegations in paragraph one of the complaint.

Defendant alleges a lack of knowledge or information sufficient to admit or deny the allegations in paragraph two, three and four, therefore, denies.

I'd add the bold part, just to be safe.

[lorne]

plaintiff original petition

A discovery level

1. plaintiff intends to conduct discovery under level 1 of the texas rules of civil procedure

b parties and service of citation

2. plaintiff is duly authorized to conduct business in texas

3 defendant is resident etc.

c venue

4. venue is proper etc becuase defendant resides in county

D midlands efforts to resolve the underlying obligation

5. plaintiff owns portfolios of consumer etc...

6. midland contact customers strive to treat customers blah blah

7 despite midlands efforts and resolve only a percentage choose to engage, blah blah

e. facts

8. defendant opened an account with chase, plaintiff purchased defendants debt and is now owed money

orginal creditor : chase

account number xxxxxxxxx9999

date of charge off 07/30/2010

charge off balance $7kish

f. count 1 breach of contract

9. defendant breach obligation to play plaintiff by failing to pay. the breach was material as the defendant did not substantially perform a material obligation

10. demand for payment has been made and defendant refused

11. interest to accrue

12 plaintiff injury which is the extent of the amount owed on the account was a natural and probable consequence of defendants breach

G count 2 - account stated

13. plaintiff is entitled to relief under the common law cause of action of account stated. transactions between the parties or their predecessors in interest gave rise to the indebtedness of the defendant to the plaintiff. An agreement, express or implied between the parties fixed an amount due, and the defendant made a promise to express or implied to pay the indebtedness

H. damages

14. plaintiff seeks liquidated damages in the amount of $7k ish and plus pre ans post judgement interst as allowed by the contract and/or texas law

i. conditions precedent

all conditions precedent have been performed have occurred or should be excused

J prayer

stand blah blah

attached was old credit card statement

what would I deny in the letter to the court?

Edited November 14, 2012 by lorne

[1stStep]

Your answer needs to be in proper legal form or the court will reject it.

If you have a word processor, find out if it's got a pleading template...

[Coltfan1972]

Take out 6.3 to 6.6 of your affirmative defenses.

[lorne]

Your answer needs to be in proper legal form or the court will reject it.

If you have a word processor, find out if it's got a pleading template...

i do have a pleading template.

I answered your previous question about the form they sent me wrong, it is NOT on pleading paper. It is like my previous post and is centered with out all the numbers down the side

[1stStep]

Hmm... well you will be fine answering on pleading paper.

[lorne]

why would I remove those statements 6.3 to 6.6?

[Coltfan1972]

why would I remove those statements 6.3 to 6.6?

Because they scream I don't know what I'm doing but I can copy and paste, you have zero shot at frauds and them not proving their case is not an affirmative defense.

[lorne]

cool, thank you very much!

I am in the learning process.

This thing says I am to answer by filing with the Justice Court.

I dont know what or how I am supposed to answer. How do I answer? Use pleading paper and what do I say on it?

[lorne]

MIDLAND FUNDING LLC,

Plaintiff,

vs.

defendant,

Defendant )

)

)

)

)

)

)

)

)

) Case No.: number

[Pleading Title]

Defendant admits the allegations in paragraph three and four of the complaint.

Defendant alleges a lack of knowledge or information sufficient to admit or deny the allegations in paragraphs five, six, seven, eight, nine, ten, eleven twelve, thirteen, fourteen and fifteen, therefore, denies.

refer to above post for paragraphs, will this work as an answer for filing with the court?

[lorne]

I am still not sure how to file an answer to the suit with the court. Any suggestions?

[Flyerfan]

I am still not sure how to file an answer to the suit with the court. Any suggestions?

The location of the court should be on the complaint. Take at least (3) copies of your answer to the court. They will file it and stamp the copies as received for you. Then a copy must be sent to the attorney of the Plaintiff.

In my state you can hand deliver to the attorney, they will stamp copies as received and then you file it with the court.

I hand deliver mine as it is easier and I like seeing their faces sink a little more each day as I deliver documents. (This guy again?) Haha

[lorne]

What would an answer look like? Is it on pleading paper? are there any examples of answers that have been filed?

[Flyerfan]

What would an answer look like? Is it on pleading paper? are there any examples of answers that have been filed?

Verify with from texasrocker. From your state.

Use the same header as in the complaint with Plaintiff v. defendant and the case number.

Just match each paragraph's allegation with your answer's paragraph.

Example: Paragraph 1. of the complaint states how much you owe Capital One.

Paragraph 1. of your answer must deny this statement. I deny owing Capital One $xxx.xx.

Move on to paragraph 2.

Oooor... you can generally deny everything.

The defendant admits paragraph 1 (assuming that is your name and address)

The defendant denies all allegations in paragraphs 1 - 12.

[lorne]

Thank you so very much, this is now starting to make sense!!! Y'all are Awesome!

I can fix about anything but this legal stuff is mumbo jumbo to me! lol

[lorne]

ANSWER OF THE DEFENDANT

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.

Part 1

Defendant admits the allegations in paragraph three and four of the complaint.

Defendant alleges a lack of knowledge or information sufficient to admit or deny the allegations in paragraphs five, six, seven, eight, nine, ten, eleven twelve, thirteen, fourteen and fifteen, therefore, denies.

Part 2

ANSWERS TO COUNT 1

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

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

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

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

ANSWERS TO COUNT 2

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

Defendant claims Lack of Standing as the Plaintiff has submitted no admissible evidence to prove Plaintiff is the owner of the debt in question.

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.

have I made any huge mistakes? Which would be best to file with courts as and answer to the suit? Part 1 or part 2?