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Midland Funding is sueing me... Pima Co, AZ


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Hello, so my fiance just received this complaint from a man who showed up at our doorstep lastnight. It's from Midland Funding LLC. The standard questionere is posted below, just trying to get some help/advice...

 

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.)

 

Bursey & Associates, P.C.

 

3. How much are you being sued for?

 

 

$8xxx + court fees

 

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

 

HSBC Bank Nevada

 

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

 

 

Served Complaint

 

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

 

My fiance was handed the complaint in person, I was not home.

 

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

 

Yes, I believe.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

 

None that I can think of, I don't answer unknown phone numbers.

 

9. What state and county do you live in?

 

Pima County, Arizona

 

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

 

Mid to late 2010, if I recall correctly.

 

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

 

6 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).

 

Case number issued. I need to file my initial answer to the complaint.

 

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?

 

20 days from the date "I" was served the Complaint, which was yesterday (04/15/2013).

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.


None, just the complaint stating the amount owed, and the original creditor.

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This is the complaint:

 

Plaintiff, through undersigned counsel, alleges as follows:

 

1. Plaintiff is a foreign entity,

 

2. Defendants(s) (is are) (husband and wife and) (a) resident(s) of Pima County, Arizona. Acts of individual defendants occurred on behalf of their respective marital communities. If this debt is a pre-marital debt, the non-debtor spouse is joined only as a necessary party pursuant to the law affecting community property. The thing is, we're not even married, and they have her name listed on the complaint as JANE DOE, and she was not included as part of the original agreement for any reason whatsoever (co-signing, etc.) Does this matter..?

 

3.This Court has subject matter and personal jurisdiction.

 

4, All pertinent acts of and omissions giving rise to this lawsuit occurred in Pima County, Arizona.

 

5. All conditions precedent to Plaintiff's right of recovery have occured.

 

6. By accepting and using an offered credit card, Defendant(s) entered into a credit card agreement with HSBC BANK NEVADA, N.A.   YAMAHA-RBP TIER 4 under account number ending in xxxx and agreed to the applicable terms and conditions of that credit card (the "Debt"). Plaintiff is the successor-in-interest ("Holder") of the Debt.

 

7. Defendant(s) (is)(are) in default under the terms of the Debt. The present amount owed under the terms of the Debt, after all setoffs, is $8,665.22. This amount includes the principal charged off balance of $7,037.84, plus interest from the date of default, October 31, 2010, until the date of this Complaint at the Debt interest rate of ten and 0/100 percent (10.00%) per year, minus any payments made.

 

8. Despite demand to do so, Defendant(s) (has)(have) failed to pay the amount owed.

 

9. The acts and omissions of Defendant(s) constitute a breach of contract. The Holder has been damaged thereby.

 

10. Plaintiff's cause of action arises out of contract. Pursuant to the terms of the Debt and A.R.S 12-341-.01, Plaintiff is entitled to an award of resonable attorney's fees and costs.

 

 

WHEREFORE, Plaintiff prays as follows:

 

1. For judgement against Defendant(s) in the sum of the principal balance of $7xxx plus interest at the rate of ten and 0/100 percent (10.00%) per year from the date of default, October 31, 2010, until the date of judgement and thereafter interest at the rate of 4.25%, minus any payments made. The amount owed at the time of filing this complaint is $8xxx;

 

2. For an award of attorney's fees fees in a fair and resonable amount to be determined in the discretion of the Court with more particularity at the time of the trial, and in the leser sum of the amount allowed by applicable law or the suggested amount of $2,166.31;

 

3. For costs incurred herein; and

 

4. For such other and further relief as the Court deems just and proper.

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The Jane Doe crap is standard stuff. Arizona is a community property state, so any spouse can be held liable for the other spouse's debts. (There are exceptions) They probably have no clue whether you're married now or were married, they are just covering themselves in case it turns out that you are or were.

 

It's nice that they waited 2 years to sue so they could bag you for another 1600 in interest. Guess that beats buying a CD with HSBC, huh. What's that, 1% maybe? Failing to sue in a timely manner got them 10%. Nice racket, I'd fight that one.

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Yeah I was planning on fighting it. Just wondering how I should word my initial answer. I believe HSBC still had JAMS in the arbitration clause in the 2008 agreement, and everything I've read on here these past 18 hours seems to indicate that is the best way to proceed.

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Yeah I was planning on fighting it. Just wondering how I should word my initial answer. I believe HSBC still had JAMS in the arbitration clause in the 2008 agreement, and everything I've read on here these past 18 hours seems to indicate that is the best way to proceed.

 

Well, I take that back. 2008 was the first year they updated the contract for arbitration to be under AAA, no more JAMS. Should I go with the "make them prove they own the debt" method here? What all do I need to send back in my first response to the court?

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This is the complaint:

 

Plaintiff, through undersigned counsel, alleges as follows:

 

1. Plaintiff is a foreign entity,  Not sure what that means, something like you are a us citizen or something?  so maybe someone else can weigh in on this one.

 

2. Defendants(s) (is are) (husband and wife and) (a) resident(s) of Pima County, Arizona. Acts of individual defendants occurred on behalf of their respective marital communities. If this debt is a pre-marital debt, the non-debtor spouse is joined only as a necessary party pursuant to the law affecting community property. The thing is, we're not even married, and they have her name listed on the complaint as JANE DOE, and she was not included as part of the original agreement for any reason whatsoever (co-signing, etc.) Does this matter..?   Deny. Defendant is not and never has been lawfully married. (or is not, depending lol)

 

3.This Court has subject matter and personal jurisdiction. If it is in your jurisdiction, then True.

 

4, All pertinent acts of and omissions giving rise to this lawsuit occurred in Pima County, Arizona.  ? did you live there when you opened the account? True, otherwise deny.  Hell if I used the card outside of Pima, I would deny lol. 

 

5. All conditions precedent to Plaintiff's right of recovery have occured. What the hell? DENY

 

6. By accepting and using an offered credit card, Defendant(s) entered into a credit card agreement with HSBC BANK NEVADA, N.A.   YAMAHA-RBP TIER 4 under account number ending in xxxx and agreed to the applicable terms and conditions of that credit card (the "Debt"). Plaintiff is the successor-in-interest ("Holder") of the Debt. ummm, ya DENY

 

7. Defendant(s) (is)(are) in default under the terms of the Debt. The present amount owed under the terms of the Debt, after all setoffs, is $8,665.22. This amount includes the principal charged off balance of $7,037.84, plus interest from the date of default, October 31, 2010, until the date of this Complaint at the Debt interest rate of ten and 0/100 percent (10.00%) per year, minus any payments made.  Denied

 

8. Despite demand to do so, Defendant(s) (has)(have) failed to pay the amount owed.  Deny

 

9. The acts and omissions of Defendant(s) constitute a breach of contract. The Holder has been damaged thereby.  DENY

 

10. Plaintiff's cause of action arises out of contract. Pursuant to the terms of the Debt and A.R.S 12-341-.01, Plaintiff is entitled to an award of resonable attorney's fees and costs.  DENY

 

 

WHEREFORE, Plaintiff prays as follows:

 

1. For judgement against Defendant(s) in the sum of the principal balance of $7,037.84 plus interest at the rate of ten and 0/100 percent (10.00%) per year from the date of default, October 31, 2010, until the date of judgement and thereafter interest at the rate of 4.25%, minus any payments made. The amount owed at the time of filing this complaint is $8,665.22;

 

2. For an award of attorney's fees fees in a fair and resonable amount to be determined in the discretion of the Court with more particularity at the time of the trial, and in the leser sum of the amount allowed by applicable law or the suggested amount of $2,166.31;

 

3. For costs incurred herein; and

 

4. For such other and further relief as the Court deems just and proper.

So you gave a general denial, so you need a list of affirmative defenses  1st one is-- Plantiff lacks Standing.  That will make them have to prove their case.  This forum will show you how.

For more affirmative defenses go to the thread talking about afirmative defenses.  others may weigh in on which ones you should use. You have to be careful with them or you may end up having to prove them, but lacks standing is one they have to prove to win. 

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Thanks for that. Yeah, the married one confused me too since I've never been, and currently am not. I have no idea what to say to the first bullet point stating that they are a foreign entity though.

I'll post up a draft of my response letter to hopefully get some final feedback on it before I file it, thanks again it is much appreciated.

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Is there a general blank form I should be using? This interactive form at AZTurboCourt.gov doesn't leave me any room to state my affirmative defenses anywhere, it just asks if I admit to ANY of the allegations, then state which ones. The next text box just says "Use this space to explain why you believe the plaintiffs should not be entitled to judgment" which I can only fit 10 lines in there, this was all I was able to cram in:

 

Defendant Christopher xxxx denies and alleges as follows:
1. The allegations of Paragraph 1 do not call for a response from Defendant.
2. Deny. Defendant has never been lawfully married.
5. Deny
6. Deny
7. Deny
8. Deny
9. Deny
10. Deny

 

Is there another form I should be using to state my affirmative defenses??? I'm so lost with this answer filing.

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So it is for Breach of Contract. Also after reading the Justice Court Rules of Civil Procedure notes from the rulemaking commitee, I saw the judge in your county raising issues about the failure to have documents and stuff . She seemed very anti collector.

 

Yes, it is for breach of contract. So that sounds like it could be in my favor if they are missing any documents then? Still need to find a general answer document that actually gives me room to write in, the one on the AZ Courts self-service web page is pretty much the exact same as the one on the AZTurboCourts site, both only have 2 text boxes which will allow 10 lines of text at the most. This doesnt seem to be enough for me to list my defenses at all.

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Is there a general template on the website?  If not I just got into word and made my own.  Just fashion the top like all the rest of the court stuff, Plaintiff v you, court name yada. yada.  Then title it Affirmative Defenses.  Then just list them 1. thru what ever.  Don't forget to sign and date at the bottom, and then do the little certified mail sign and date thing at the bottom also.

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This is the only document I could find on the AZCourts.gov site in regards to a civil answer... Not a whole lot of room for anything. If I just made up my own in Word, should I include the same first 4 bullet point questions shown in the uploaded PDF? I'm not sure exactly how it should look to allow me to state my affirmative defenses and properly admit/deny each allegation (10 of them total).

Civil_Answer_Blank.pdf

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no just make it look like the top of the one they served you, You can either type in their questions, or you can type in instructions on how to read such as Defendants answer listed corresponding to the numbered questions of Plaintiff's complaint.

you could also say "affirmative defenses listed on separate page, then have blank page, header affirmative defenses, and list them 1-whatever.  sign and date bottom.

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You should use their form. Admit to 1 and three, deny the rest. You don't have to list them individually, say something like defendant denies all other paragraphs of the complaint. For the reason they should not prevail, stick your neck out a bit and say they are not the proper party in interest through admissible evidence, therefore they lack standing to sue. That's Midland's weak point, they rarely have documentation to prove they own these accounts they buy. Then start reading the state rules of evidence. (statutes, not court rules) I believe they have to serve you with disclosure under rule 26.1. Let us know what they send.

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To be clear, the complaint is for ME, but it was handed to my fiance lastnight when she answered the front door, as I was not home.

It has the Defendants listed as Cxxxx xxxx and JANE DOE, husband and wife.

I found this a bit odd, as we're not married..?

AZ is community property state - they are hoping that you are married and she works - in order to have a second set of wages to garnish should they get a judgment.

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Thanks both of you. I will work on filing my answer.

One more question, at what point should I formerly ask that Midland send any and all mail certified? I heard they like to "forget" to send docs or send them at the very last minute so you don't have time to respond.

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How does this sound, anything that should be changed?

 

 

Do you admit any portions of plaintiff's complaint? * spacer.gif Yes (answer question below) spacer.gif No

If 'Yes', use this space to state the portion of the plaintiff's complaint you admit: *

Defendant ADMITS to Paragraphs 1 and 3, as alleged by Plaintiff.
Defendant DENIES all other paragraphs of the Plaintiff's Complaint.

 

 

Use this space to explain why you believe the plaintiffs should not be entitled to judgment: * [10 lines max - Do not type all CAPITAL letters.]

 

 

Plaintiff is not the proper party in interest, therefore lacks the standing to sue.

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And I have a Request for Discovery, should be this filed at the same time I file my initial answer to the complaint?? Is this too much to ask them for??

 

 

 

REQUEST FOR PRODUCTION OF DOCUMENTS

COMES Now Defendant, XXXXXXXXX, and files this Request for Production of Documents, and requests the Court to grant such Motion based on facts stated below:

“Document” means any written, recorded or graphic matter, whether produced, reproduced or stored on papers, cards, tapes, belts, or computer devices or any other medium in your possession, custody or control, or known by you to exist, and includes originals, all copies of originals, and all prior drafts. It includes all original business records, non-identical copies, computations, memoranda of oral or telephone conversations, tabulations, records of correspondence, notes made on other documents, microfilms, etc. A request to identify a document is a request to state as applicable:

1. The date of the document;
2. The type of document;
3. The names and present addresses of the person or persons who prepared the document and of the signers and addressers of the document;
4. The name of the employer or principal whom the signers, addressers and preparers were representing;
5. The present location of the document;
6. The name and current business and home addresses of the present custodians of the original document, and any copies of it;
7. A summary of the contents of the document; and
8. If the original document was destroyed, the date and reason for or
circumstances by which it was destroyed.

 

 


1. The alleged credit application from HSBC BANK NEVADA, N.A., bearing the defendant's signature;

2. The alleged credit agreement from HSBC BANK NEVADA, N.A. that states interest rate, grace period, terms of repayment, et cetera;

3. Itemized statements or credit card statements from HSBC BANK NEVADA, N.A. that demonstrate how the alleged amount of $8XXX was calculated;

 

4. A contract, agreement, assignment, or other means demonstrating that plaintiff had the authority and capacity, and was legally entitled to collect on the alleged debt from HSBC BANK NEVADA, N.A.;

5. Letter(s) sent to defendant by plaintiff., demonstrating an attempt to collect on the alleged debt, HSBC BANK NEVADA, N.A.;

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

7. Any and all further documents that you believe establish that defendant had an outstanding account or debt related to HSBC BANK NEVADA, N.A.;

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant's liability and/or responsibility to the alleged debt;

9. Any and all written communication, received by the defendant from the plaintiff, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff's accessing of defendant's credit report(s).

10. Any and all communications from plaintiff to the defendant explaining why plaintiff reported the alleged debt to any credit reporting agency, as well as obtaining defendant's credit report(s);

11. Any and all credit report(s) defendant obtained from any credit reporting agency concerning the plaintiff;

12. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or HSBC BANK NEVADA, N.A;

13. The plaintiff's Articles of Incorporation;

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