nikkinlt Posted May 3, 2013 Report Share Posted May 3, 2013 Hi all! I'm new to this site - there are so much to read and alot of good advice! I'm hoping that somebody out there can provide some feedback to help me in my situation. I live in Texas and I'm being sued by Midland Funding for and old debt. They filed suit before the statute of limitations. I'm fortunate enough to work in a law firm, so I have access to forms, etc., but this is not something I want to share with any of the attorneys that I work with for obvious reasons. Anyway, I filed my answer the day after I was served, and I included a request for disclosure. Yesterday I recieved Midland's answer. They answered as follows to ©; the legal theories and, in general, the factual bases of the responding party's claims or defenses - Plaintiff's and or Plaintiff's predecessor and Defendant agreed to an extension of credit with terms. Defendant defaulted on the account on or around 2/5/2010 when Defendnat failed to pay as promised. Defenda's account is still owed and outstanding. Plaintiff is pursuing collection as allowed by law. Plaintiff asserts laches, waiver, estoppel, and statue of limitations to any cliams or defenses asserted by Defendant and gives notice of the governing law for the original creditor's principal place of business pursuant to the National Banking Act or as stated in the cardmember agreement. The following information relates to the responses to discovery. Defendant waived in dispute to the account balance when Defendant failed to dispute to the account balance when Defendant failed to dispute the balance due as required by law. The Fair Credit Billing Act or FDBA, 15USC §1666 enforeced by the TILA, sets for dispute resoluton procedures for both debtors and creditors. Pursuant to the FCBA, a debtor must provided the credidtor/lender written notice within sixty days of receiving a challenged statement. A generic bill of sale and testimony related to the specific account assinged is sufficient to prove standing by virtue of an assignment. Eves v. Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex.App. - El Paso 2009, not pet.; Simen v. Unifund CCR Partners, 321 S.W.3d 235, 240 )Tex.App. - El Paso 2009, no pet.) Defendant failed to dispute the account balance as required by applicable law. Therefore, Defendant waive any dispute to the amount due." They answered none, or none at this time, to all of the other requests. It seems to me that they are saying that since I didn't dispute in the beginning (I did send a verification letter but it was late), that now I don't have any defenses. When they filed their suit, they only attached one piece of paper which was a statement from Midland indicating the balance due. No backup whatsoever was included, and I'm pretty sure they don't have any. To confirm that, I have served Midland with a request for production. What do you make of this, and does anyone have advice on how I should handle this if it comes up in court? When I filed my answer, they scheduled a hearing for the first part of June. Also, in the beginning, the style of the case was "Midland Funding LLC" as Plaintiff. On their answer to the request for disclosure, they changed it to "Midland Funding LLC, assignee of ___". Thanks in advance for any advice you have! Link to comment Share on other sites More sharing options...
BV80 Posted May 3, 2013 Report Share Posted May 3, 2013 The following was written by a TX attorney. See if it helps you. Defending Debt Collection Suits http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf Link to comment Share on other sites More sharing options...
shellieh98 Posted May 3, 2013 Report Share Posted May 3, 2013 I think they are trying to spout off a bunch of legal mumbo jumbo to make you think, crap, I better settle with them now.What does Wyoming have for disclosure rules? Is there a trial set for you case yet? If not you can ask for a pretrial hearing, and ask for discovery. (different from disclosure) If you would rather play the down low, you can send a meet and confer, telling them they didn't send what you asked for. If they don't, that is ok, (even better) when it gets near the time for trial, after disclosure period is over, object to what they have, and ask they preclude any other evidence for failure of disclosure. They might not worry about it if they thik you are some poor unsophisticated person, and they will go in thinking they got it in the bag. If They try and file a MSJ, you need to get that off the table, one of the ways is if your in discovery. (which you would be since you asked, and they didn't provide)That was a great article BV80 gave you, lucky for you it is from your state. Link to comment Share on other sites More sharing options...
racecar Posted May 3, 2013 Report Share Posted May 3, 2013 http://babyinthecake.wikispaces.com/z_%28Sample%29-DisclosuresThis was made by Texas attorneysCraig JordanLesser & Jordan990 S. Sherman StreetRichardson, Texas 75081(214) 855-9355Some stuff for you to readhttp://www.txconsume...ses_2009_04.pdfhttp://www.martindal...=asr-828238.pdfhttp://www.beardenla...l Procedure.pdfhttp://www.txconsume...ses_2009_04.pdf Link to comment Share on other sites More sharing options...
nikkinlt Posted May 3, 2013 Author Report Share Posted May 3, 2013 Thanks you guys! I just don't want to say anything in my response to the RFD that will bury me. I will take the time to read the links posted here. I can tell from one of the links already that Midland might be in some trouble. Their suit claims breach of contract, but they didn't supply the contract, etc. Link to comment Share on other sites More sharing options...
shellieh98 Posted May 3, 2013 Report Share Posted May 3, 2013 they will send you a cardmember agreement. They don't have to have a signed contract, using the card was acceptance. They do however have to provide billing statements for the entire account, so you can see how interest was calculated. " Plaintiff asserts laches, waiver, estoppel, and statue of limitations to any cliams or defenses asserted by Defendant" looks like they will try what ever complaint they can, and will try under account stated also. I would maybe ask them to pick on lolI don't know if you can do that, it looks like failure to state a claim, you could come back on them for a more definitive statement of complaint--so you know what exactly they are suing you for. How did you answer? Did you admit that the card was yours, or did you do a general denial? Link to comment Share on other sites More sharing options...
nikkinlt Posted May 3, 2013 Author Report Share Posted May 3, 2013 It seem that if they are going to sue me for breach of contract, they would have to provide the contract to prove the breach! Link to comment Share on other sites More sharing options...
TomnTex Posted May 3, 2013 Report Share Posted May 3, 2013 Not sure, but I think they try to use the fact that you used the card as a contract...unwitten. Link to comment Share on other sites More sharing options...
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