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Need some advice on my next steps vs midland


voodoo
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Ive been reading quite alot on this forum and Im still confused on how I should "answer" and what else I should do. For one Im in Oregon so theres a mandatory arbitration and theres some other details that may or may not be in my favor. This account has been to at least 4 agencies and Ive made attempts to pay several times. The last time I actually setup a direct withdrawal after the CA said they would cut the total in half. They withdrew money for a few months then sent a letter that the account had been sold and they werent going to accept anymore payments. That was when I said screw it and have not bothered even responding. Ive tried to do the right thing with these people and got crapped on every time.

 It looks like Ive recived their standard summons format with me VS Midland where they declair that I have defaulted on a certain amount and they are "praying" for judgment for the sum with max interest yada yada yada. They stated a last payment date of a couple of years ago which was with another company and an account number that does not match my OC number but matched the account number of the CA I was paying. To my knowledge I have never signed any agreement with any CA. Im pretty sure Im still in the SOL. Filing an answer is going to be $150 and The arbitor is $400.

 Where do I go from here? Should I start challenging their ownership of the account or what? Thanks for any help.

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If this is Midland then more than likely the attorney is Daniel N Gordon out of Eugene and he has served you with the standard 6 paragraph cookie cutter Complaint. It's important to file an answer in a timely manner on pleading paper. If you post the complaint or at least the contentions we will help you get it answered immediately. You will have to pay the fee for the answer and yes there will be mandatory arbitration. If your not working you can get a waver for both. Midland folds their tent pretty easy but you will have to do the paperwork and do a little studying. We will be glad to help. Midland is pretty easy to fight here in Oregon. 

 

HP

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Yes, you're going to start challenging things, but not in the Answer okay?

 

1. Admit your name.

2. Deny everything else.

 

Find a general denial on this site. There are a lot of threads that have them in them.

 

I'm gonna guess that you've reset the SOL by making payments from your bank account.

Damn, and they still sold it off.... sorry man, you tried to do what you felt was the right thing - that sucks.

 

Fill out Racecar's checklist of Lawsuit questions and post it here. We'll get you up to speed on what to do.

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Voodoo,

 

This complaint is really a mess.  Looks like it was typed by a typing challenged clerk. Tense and case are wrong, the spelling is bad, and they are calling it a communication by a debt collector. The Plaintiff is Midland Funding the attorney for the Plaintiff appears to be Suttell and Hammer and my real question is have you actually called the Court Clerk to determine this is an actual case and a number has been assigned. We'll treat it like a filing but you need to confirm. Was there a summons attached to the complaint, how was it served, and did Suttell and Hammer provide any documents along with this alleged Complaint????

 

HP

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Here is a template for you to edit:

 

VOODOO

 9999 MY STREET

JOSEPHINE, OR 97056

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR JOSEPHINE COUNTY

 

MIDLAND FUNDING LLC,

                        Plaintiff,

            vs.

VOODOO,

                        Defendant

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Case No.: 9999999

 

ANSWER, AFFIRMATIVE DEFENSES

 

 

CH 595, SEC 15 (1) ( B)

Claim in Amount of $2,XXX.XX

Subject to Mandatory Arbitration

 

DEFENDANTS ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES

Now comes Defendant, Voodoo, Pro Se, who except as otherwise admitted or qualified herein, Defendant denies each and every allegation in the Complaint and puts Plaintiff to its strictest proof thereof. Defendant notes that this denial is due, among other things, to multiple allegations within a single paragraph of the Complaint:

 

I.  Defendant alleges:

Plaintiff Allegation 1.

Plaintiff is a legal entity, and if required by law, has paid all licenses and fees due and payable and is authorized to bring this action in the State of Oregon.

 

ANS: Deny.  Defendant denies any alleged obligation to Plaintiff in Paragraph 1, as there is 

 

not, nor has there ever been any agreement, written, oral or implied between the Plaintiff 

 

and Defendant. Defendant further avers he lacks information to form a belief to the truth or 

 

falsity of Paragraph 1 as to the structure of Plaintiff's business, its legal status, commercial 

 

relationships with third parties, or of any rights of its foreign limited liability status to do 

 

business in the State of Oregon. Defendant further avers no credit account agreement 

 

exists with Plaintiff.

 

 

Plaintiff Allegation 2.

A Defendant resides in Josephine County, Oregon.

 

ANS: Admit

 

Plaintiff Allegation 3.

That at all times material, defendant has been the obligor of a certain credit account bearing number xxxxxxxxxxxxxxxx, originally issued by xxxxx which as been assigned to plaintiff, The date of last payment is xx/xx/xxxx.

 

 

ANS: Deny Defendant lacks sufficient information about the accuracy of this information 

 

to form a belief as to the truth or falsity of Paragraph 3 and, therefore, the allegation is 

 

denied. Defendant further denies receiving, using, or establishing of any such credit account

 

or any credit card agreement issued by Plaintiff or any other third parties to this instant action

 

referred to in the Complaint.  Alleged Account or Agreement was not appended thereto,

 

therefore Defendant has no reasonable basis for anything other than a general denial.

 

 

Plaintiff Allegation 4.

By the use of said credit account, said defendant became indebted on said account for goods, services, and monies with the charge off balance of $xxxx.00 and a current unpaid balance of $xxxx.00 which is fully due and owning to plaintiff, together with such greater sum as may be proved at the time of trial, together with interest thereon at the highest legal rate.

 

ANS: Deny Plaintiff has provided no substantiation or details to support its assertion that

 

any agreement exists and Defendant lacks sufficient information regards the accuracy of

 

Plaintiffs contentions to form a belief as to the truth or falsity of Paragraph 4 and, therefore, the

 

allegation is denied.

 

 

 

Plaintiff Allegation 5.

The Defendant has defaulted on the obligation be (sic) failing to make payments on the obligation and currently owes the sum of $xxxx.00 together with interest thereon at the highest legal rate.  More than 30 days prior to filing suit, Plaintiff has made demand on the Defendant.  Despite demand, the defendant has failed or refused to pay.

 

ANS: Deny Plaintiff admits to communicating an attempt to collect a debt allegedly

 

owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred

 

from seeking any fees or relief for allegations alleged in Paragraph 5. Plaintiff provided no

 

proof of debt, copy of evidence, bill of particulars, or affidavits of witnesses Plaintiff

 

intends to call with summons. No credit accounts ever opened or existed between Plaintiff

 

and Defendant. No debt validation from Midland Funding, LLC pursuant to the FDCPA Act (§

 

803.4) was supplied with summons.  Plaintiff's protracted claims to ownership, by assignment,

 

have no standing for the allegedly defaulted debt and Defendant owes not one penny to

 

Plaintiff. Any amounts, of interest or fees claimed, on this time barred account, as injury by

 

Plaintiff are to its own self, therefore Plaintiff is precluded from seeking relief for amounts

 

stated above.

 

 

 

 

Improper notice of existence of contract may be a false filing of affidavit and Plaintiff, Midland

 

Funding LLC may be liable for statutory damages. (Supreme Count CV-10-5132 Eva

 

Lauber & other Plaintiffs v. Midland Funding, LLC)

 

 

 

 

Defendant affirmatively states as follows:

6.

There is not, nor has there ever been any agreement, written, oral, or implied between

 

the Plaintiff and Defendant. The Defendant asserts that this action may be barred by

 

the applicable statute of frauds.

 

7.

Upon information and belief, Plaintiff may be liable for statutory damages pursuant to

 

FDCPA Act § 803.4 to include remedy for filing false affidavits. Eva Lauber et al. v.

 

Midland Funding LLC, Supreme Court CV-10-5132-LRS.

 

 

8.

Plaintiff included no evidence of proof with the complaint that Defendant's alleged debt to

 

Plaintiff exists. This includes specifically the alleged contract between the plaintiff and

 

Defendant or any other instrument constructed solely for the purpose of creating a loan

 

agreement between the Plaintiff and Defendant bearing Defendants signature and/or

 

production of the contract that legally requires the Defendant to pay the amount entered

 

into complaint. Nor has the Plaintiff provided original or copy of the account agreement

 

that states interest rate, grace period, finance charge, assignment, and specifically the State

 

Law the alleged agreement and account are governed plus other important facts.

 

///

 

///

 

 

II. AFFIRMATIVE DEFENSES

 

Further the defendant asserts the following defenses and states:

 

As and for a First Defense

Plaintiff has not offered proof that complaint is other than time-barred under Oregon Title 2 Chapter 12, (statute of limitations for open accounts is 6 years). Commencement of action date June 29th, 2005 per ORS 12.010. Per the Plaintiff’s own summons, date of last payment was Dec 7th, 2005. Date of summons was Mar 7th, 2012.

 

As and for a Second Defense

Plaintiff has not presented proof or has failed to state ultimate facts sufficient to constitute a claim either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim as per Fed. R. Civ. P. 12( B)(1)[1] lack of subject matter jurisdiction or Rule 12( B)(6) failure to state a claim upon which  relief can be granted.

.

 

As and for a Third Defense

Plaintiff has deficiency in their proof of standing excluding any right to sue, and further precluding subject matter jurisdiction the Oregon Circuit Court of Josephine County in which the suit is filed.

 

As and for a Fourth Defense

Plaintiff has failed to provide proof of any credit account/card agreement or evidence that it was offered, delivered, or that it's enforceable in order to prevail on any breach of contract or account stated. Plaintiff is deficient in proof of valid contract between parties of this immediate action.

 

As and for a Fifth Defense

No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of the purported agreement, or that any transfer of title or rights to the Original Creditors Claims or ability to take action, are evident and remain unsubstantiated.

 

As and for a Sixth Defense

Plaintiff is deficient in proof that they are the real party of interest. Rule 26A of the Oregon Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest and that, relevant substantive law creating the right being sued upon, the suit has been commenced by the party holding the substantive right to relief. 

 

As and for a Seventh Defense

False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Midland Funding LLC, to initiate suit on a debt it knew should or should have known was barred by the statute of limitations, constituting a false representation regarding the character or legal status of the debt and a false representation or deceptive means to collect a debt allege violations of 15 U.S.C. §1692(e)(2)(A)

 

 

///

 

///

 

///

 

 

III. Defendant's Prayer for Relief

 

The Defendant has been injured by Plaintiff's actions:

 

 

WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by

virtue of its Complaint and that Court dismiss the complaint with prejudice as

follows:

 

1. Deny Plaintiff's request for relief on this complaint in the sum of $x.xxx.xx, which includes principal and interest, plus usurious interest at the highest legal rate until paid.

 

2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's

fees incurred herein, with interest thereon at the highest legal rate per annum

from the date of judgment until paid;

 

3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and

assigns to contact third persons and entities for the purpose of collecting

information or any actions entered in this Court and to reveal the existence of

Defendant's debt to such third persons and entities;

 

 

4. For judgment against Plaintiff for actual and statutory damages under

FDCPA.

 

5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

6. Such other remedies or sanctions the Court deems appropriate.

 

 

 

 

 

 

 

 

Dated this 23rd day of January, 2013

 

 

 

 

 

VOODOO

 9999 MY STREET

JOSEPHINE, OR 97056

 

 

 


[1] Under a Fed. R. Civ. P. 12( B) (1) challenge to subject matter jurisdiction, “no presumptive truthfulness attaches to plaintiff’s allegations” —“the trial court’s jurisdiction is at issue,” and plaintiff has the burden of proof. Mortenson v. First Federal Savings and Loan a$$’n, 549 F.2d 884, 891 (3d Cir.1977); see Anjelino v. The New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999).

 

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2 and 7 are iffy defenses. 2 cites a federal rule of procedure, this is state court I assume. 7 cites a violation of the FDCPA, which is not a defense, it is the basis for a counterclaim, which has not been made. Case law is inappropriate in an answer to a complaint. You can't ask for FDCPA damages in a state complaint prayer for relief. That would belong in a counterclaim.

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Thanks Huey and Bruno. Heres the first 2 pages I was delivered by a courrier at my house. I didnt think I needed to post them. Is there anything I should remove from the answer now? Also should I be admitting to owning the account? Thanks for the help, I really appreciate it.

 

IMG_0891.jpg

IMG_0893.jpg

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Voodoo,

 

I got your PM and concur with Flyerfan that there is NEVER any reason to admit anything to Midland. It's OK to hedge, obfuscate, and legally dodge but never misrepresent facts which will only piss of the Judge or the Court and get you no where. 

 

 

Next:

Oregon has some pretty specific rules about how to properly reply to the individual allegations when answering a Summons/Complaint. A simple Admit, Deny or Admit in Part/Deny is part will not work without explanation. Thus the somewhat lengthy responses. Bruno has been around the forum for a long time and has very good insight. I don't always agree with him but will never discount his opinions. Your call on the suggested answers to the Complaint I posted for you. 

 

I will send you a motion to dismiss in lieu of answer package to you via PM.

 

HP

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