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I am being sue by midland funding and the court date is next week please help


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I am being sue by midland funding. I have already answered the summons and complaint within 30 days and now about a month later court date showed up in the mail. Midland funding included document such as Affidavit and a copy of supposedly statement from the original creditor. I did not attack none of the documents in my answer on the summons. Should I have attacked those document so that the court strike them down as evidence when I was answering the summons? Do  I fill motion to dismiss them before my court date which is Wednesday next week. please I need help!!!

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  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.)

Midland Funding LLC

3. How much are you being sued for?

$4,167.30

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

Chase Bank USA, N.A

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

I was served

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

In person by the Sherriff

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?

-I received one or two mails but never responded before the lawsuit

9. What state and county do you live in?

-Georgia, Fulton County

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

-06/2009

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

-I think its 4years on credit card debt

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).

 

-I have already answered the summons and hearing date has been schedule on 4/3/2013

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 already answered the summons and as I said hearing schedule date has been set on 4/3/2013.

The statement of Claim for the lawsuit are;

  1. Defendant resides in Fulton County and is subject to the jurisdiction of this court.
  2. Defendant is indebted to the Plaintiff in the sums of $4,167.30, principal, plus post-judgment interest at the rate of 7 percent and 76.50 costs to date as follows.

Defendant is indebted to the Plaintiff in the amounts stated above, plus post-judgment interest at the statutory rate and all future costs of this action. Midland Funding LLC purchased this account. The original credit grantor is Chase Bank USA, N.A. The original account number is ***************7340.

 

  1. WHEREFORE, Plaintiff demands judgment against defendant in the amounts as alleged in paragraph 2 herein.

 

STATE OF GEORGIA, FULTON COUNTY:

After being duly sworn on oath, says the foregoing is a just and true statement of the amounts owing by defendant to plaintiff.

 

Then this was signed and notarized.

There were no interrogatory questionnaire regarding the lawsuit but there were affidavit and statement from the original creditor, Chase bank.

 

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.

These items were attached;

  1.  Affidavit
  2. One statement from the original creditor, Chase bank.
  3. A page which has “field data” as alleged by Midland funding that it came from electronic records provided by Chase Bank USA, N.A.
  4. Bill of Sale and
  5. Closing Statement.

 

I appreciate all the help



17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

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I really help. i have not received any response yet as to what to do now.

 

There are questions waiting to be answered. Is Wednesday your trial date? Is it a case management conference? Did they file an MSJ? What exactly are you going to court for on Wednesday?

 

I doubt it is the trial. No discovery has been done? That is an incredibly fast pace if your trial is Wednesday.

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Thanks so much for responding. I am not quick sure if the actual trial is gonna be Wednesday but the letter I received from the court says;

 

Notice of Trial : Your trial has been schedule for hearing on 03-APR-2013 at 10:00:00 AM in Courtroom 212.

 

And the address of the location is provided in the letter as well.

I still trying to learn these legal procedures and I don't know what's going to happen on Wednesday. I can post the whole letter. please let me know if I have to do that. thanks. 

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Also the letter were saying that the court encourages me to make an earnest effort to settle the disputes and that Mediation services are available for me prior to and on the date of schedule hearing which is Wednesday. Do I opt for mediation?

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Also the letter were saying that the court encourages me to make an earnest effort to settle the disputes and that Mediation services are available for me prior to and on the date of schedule hearing which is Wednesday. Do I opt for mediation?

 

At least talking with the mediator is fine. Shows the court a good faith effort. Also telling the mediator and plaintiff that you are not interested in settling is fine, too.

 

Was any discovery done? Did they send you any or did you send them? This seems like too high a dollar value for a "no discovery" trial.

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No. I received the summons about a month ago and I answered it within 30day window. Then what appeared to be trial date showed up in the mail. No discovery from the plaintiff or me.

 

Now the letter said if myself, the defendant and the plaintiff agree to settle the dispute, mediator service is available.

My question is do I contact Midland Funding to see if they would like mediator services to agree before telling the court I opt for mediator services. Thanks a lot. I just want to get this right.

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Do you want to settle? That is the only question that matters in regards to the mediator. If you have no intention of settling, don't bother.

 

If this is a trial, you need to object to everything they try to admit as evidence as unauthenticated unless they have a witness there to authenticate it. Their affidavit is probably worthless and should be objected to as hearsay as it most likely does not specifically reference any documents but instead just mention "records" that were reviewed.

 

Attack their standing as the bill of sale most likely does not have your account stated but only refers to a "pool of accounts" that were purchased. (How do you know yours was part of that sale? Their affidavit which is just their word for it? Is their an affidavit from the OC also?)

 

Trials are tough and only having a week to prepare with no discovery makes it even tougher.

 

In most states (check your courts rules) you can submit an affidavit which could be used to counter everything the affiant in their affidavit says. Then you have what is called "dueling affidavits" and would require them to have a witness at trial.

 

Good luck.

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Right before I found this board, I was sued for 9600.00.  I answered the complaint, and then didn't know what to do.  My trial came quick, and the day before court I settled for 50% of the debt.  I am kicking my self for not getting my research done, and finding the board sooner.  I found I could have either gotten an extention, asked for discovery, and taken a leave until it was done, so many other things.  The law firm even supoenaed my bank records without a court order, didn't know that was a violation either.  Glad you found us in time, now just listen to these guys, and do what they tell you. :)

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Yes I am going to do that right, I will even stop by the court clerk if i have to since its not too far from where I live.  I don't want to settle so i will not even bother with mediation.

 

Thank you all very much and i will let you know what happen then.

 

Flyerfan you are my hero! Thanks a lot

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I have had a few cases in GA and in each instance they were filed in magistrate court if yours is also read on. Procedures for magistrate court dont allow for discovery and production of documents unless both sides and the judge agree. Magistrate is more streamlined for under 10k suits and you have to show up to court ready to proceed.

 

I went to court yesterday against Portfolio Recovery Associates represented by Fred Hanna and Associates and got a dismissal.

 

As long as you denied the allegations in the complaint except your name and residence then you need to show up and do not agree to settle unless that is your choice.

 

Here is the link to my post and rundown of my proceedings in GA Magistrate court

 

http://www.creditinfocenter.com/community/topic/319243-being-sued-by-portfolio-recovery-associates-update-case-dismissed/

 

If this is a JDB they will need to have an affidavit from the OC and a witness to authenticate the debt. They also need a witness or affidavit from the actual plaintiff(JDB) they probably wont have either and will try to bluff you into a settlement. A bill of sale and a few account statements or an affidavit of assignment is inadmissable hearsay unless they have actual witness to validate them.

 

Affimative defenses are nice but not necessary in magistrate court because you are not giving up the right to raise them later at trial if they are absent in your answer. Proceedings in GA magistrate start with a complaint filed, service to defendant, a 30 day period to answer and then a hearing is set for either default or trial. The vast majority are defaulted as people either dont answer, dont show up or both. The JDB attorneys are there to get consent judgments and defaults.

 

If it goes to trial and the judge asks you if its your debt, dont admit to it dont give them the win. The question isnt if the debt is valid, you are not sure if the amount charged is actually owed to the OC or not. You dont know if the JDB has the right to collect or if the amount allegedly owed has been authenticated and substantiated. They need a custodian of records from the OC as a witness to substantiate and JDB's/CA's are not allowed to charge fees and interest in GA so the amounts could be inflated. You dont know if the debt was sold to plaintiff or any other JDB's they need to prove it.

 

For me it hasnt gotten to the judge as the plaintiffs have dismissed 4 in a row. They were not really prepared to go to trial and were merely bluffing.

 

If you actually get to trial, plaintiff goes first and lays out their case, object to every piece of evidence as hearsay, admit to nothing and make them prove it with witnesses and authenticated documentation.

 

When its your turn you have 3 points to make.

 

1. The plaintiff has no admissible evidence

they need witnesses and wont have them so their documentation is hearsay

 

2. The amounts charged are incorrect

Credit cards are simple contracts under GA law and they have to have a copy of your application in order to charge interest and fees. They dont have to be the original ink signed contracts but they do need to be a copy of the original not a mere unsigned copy of the credit agreement. they need to prove the amount alleged is valid and need an affidavit and a witness from the OC

 

3. The plaintiff hasnt proven ownership of the debt

Again they need someone from the OC to say its your debt and they sold it to JDB an affidavit that you cant cross examine is inadmissable hearsay

 

Worst case you lose which isnt so bad they still have to try and collect and you can settle then as well just with less leverage

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Hi Guys I want to thank you all very much for the help and advice. Now let me tell you what happened with my case. I went to court yesterday regards to the lawsuit against me by Midland funding. As was predicted I was the last person to talk to the attorney of midland funding. He starting bluffing right away by asking if I will want to settle the debt. I told him no and I am not going to roll to sign any consent form so he can dismiss the lawsuit. Well in short, he ran back to the court room, called me back outside again and handed to me a paper. Walaa!. he had dismiss the case. all credit go to you guys especially Sweetwaterfan. it does help when someone from your state been in the same situation.

 

Now my case was dismissed without prejudice, can they file the lawsuit again on this same debt and what are legal implications with regards to this?

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