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next step? sued by midland funding and now summons for garnishment


crd12
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hi everyone, sorry for taking a little of your time. i'm over stressed because of this midland issue. i received the writ of garnishment from midland. i filed for a hearing and its a week from now. i'm in arizona and am looking for any advice and or help.

 

to begin i received this notice with a packet of all the other summons of complaint, summons of judgement, and the summons for garnishment. i posted this story in teh post judgement room, but wanted to see if i could get help in this room seeing there are alot of midland featured posts. one thing is that i have never been served prior to this. now, one thing to note is that my father and i shared the same name, my father passed away in a work accident last july. on the summons the defendant is listed as our name, no junior or senior listen, and then reads, "and his wife" followed by my mothers name. all the summons are written the same, and to start i have never been married.

 

another issue is that, while looking thru my fathers mail, i found one letter from midland which was an settlement offer and not a summons from last year, an on that letter the name is misspelled. also midland notes that i started accruing interest in may of 2005. and from the paperwork midland sent me, they started the complaint in april of 2011.

 

would i be able to fight the fact that i was never personally served? i was never married?

or

can i also fight that this was past the SOL in arizona? in which the statutes in arizona were extended to 6 years in april of 2011. before this credit cards were considered and open account and fell under a.r.s 12-543 which limited the SOL to 3 years. and the new revision known as House Bill 2412 signed on april 12, 2011, was not noted to be retroactive.

 

should i file a motion to vacate judgement? a motion to dismiss?

 

any help will be appreciated.

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it very well could be, im not sure. i asked my mother and she said he mentioned it once but that he didnt hear anything else about it after receiving the settlement letter. on the summons it has the last four of my ss#. so i pulled my credit report and the only mention of a bank of america account, which this is, says it was opened in 1995 and is in good standing, but then  the issue with this is that, i was 13 years old in 95. and im pretty sure its not allowed for a 13 year old to open an account. another thing that cought my eye is that on my credit report under names reported, it lists my fathers full name on my ss#. so someone reported this on my ss# but under his name. i had a bank of america account long ago but it was a checking account in which i didnt leave a debt.

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You may also want to bring your father's death certificate to both show he is deceased and he was married to the person named on the complaint, not you.

 

ETA:  Make sure you only give it to the court.  You should be able to get a certified copy from your state's Vital Records office.  Make copies for yourself as well.

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thanks for the advice its really appreciated. this is very stressful. thats what i was thinking of doing at the hearing. the only thing i worry is that my lack of legal experience will ruin it for me. and they might have some sort of document that dooms me, given that i have no clue what has been shown as evidence on their part. would i need to file a motion to argue the debt? im worried i might be missing a document, a statement, something on the day of the hearing. should i put my arguement in writing?

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You may want to file a brief memo stating the debt belonged to your deceased father pointing out that the information in the caption of the lawsuit - that the defendant was married to your mom.    I think it would be hard to counter that, especially if you have the same name as your father.

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hey everyone, im back and in need of advice. so today i had my hearing, and the attorney showed up 15 min late. the judge let the hearing start with only me in the room. so i began to tell him how i was never served and all the paperwork was adressed to my father and his wife. and also that neither he nor i have ever been served. the judge considered quashing the garnishment but then the attorney asked if he could schedule another hearing to research his documents. now wouldn't them filing all this legal action be a violation of civil procedures in arizona for not ever serving anyone? i also went to the law library and got all documents associated with this and found that the account they are started accruing interest on 12/23/05, though not the cause of action just based on that, and them starting their legal action on 08/30/10, wouldnt this be past SOL in arizona? prior to the revision of ars 12-548, this would have fell under ars 12-543. and ars 12-505 does not allow new statutes be retroactive. would this be illegal?

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There seems to be a controversy as to the SOL in AZ and whether or not older accounts are grandfathered in. However, this should be easy to get rid of, then you can sue Midland for sheer stupidity and an FDCPA violation. Bet they knew all along about your dad's passing, and they just decided to try to bag you for the money because the name is the same. They do stuff like this all the time.

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