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Midland Funding in MO suing me in CA - found out late


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Midland Funding via Gamache & Myers sent a letter dated 4/29/13, postmarked 5/1/13 to relatives of mine in MO.  I have been a resident of California for 19 years.  Relatives forwarded the letter to me this last week, which was confounding to say the least.

 

Gamache & Myers stated in "process of instituting suit" on behalf of Midland Funding, whom I've never heard of.  They assigned their own file number - no creditor given.  I'm guessing the creditor is a card I went into default on 5/26/09.  No amount of suit given.

 

So found this site and have been studying.  Luckily one post guided me to Missouri Case Net and I found they filed 4/30/13, a judge has been assigned, "Disposition:  Not disposed", "Case Type:  AC Contract/Account (Bulk)".

 

After reading other peoples' experiences, I'm not sure which approach is best to use for my situation.  Learning of this a few weeks after it was filed also agitates the situation a bit.  I'm assuming I have 30 days to get something to the court to get this shut down.

 

Thanks in advance for your time and help, I appreciate it and look forward to your guidance.

 

**EDIT:  Ok, looked back through old files to track this down.  Appears it was a Chase Account, last paid 4/26/09.  I did get a letter from Midland on 6/02/12 saying they had taken over the account.  It had been through 4 other collection agencies in the meantime.

 

 

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.)

Gamache & Myers, Donald A. Horowitz

 

3. How much are you being sued for?  No amount mentioned in letter

 

4. Who is the original creditor? (if not the Plaintiff)  Letter does not say.  EDIT:  I received a letter from Midland 6/2/12 stating they had this account.  Original Creditor:  Chase.

 

5. How do you know you are being sued? (You were served, right?)  Have not been served, checked on Missouri Case Net

 

 

6. How were you served? (Mail, In person, Notice on door)   Not served

 

7. Was the service legal as required by your state?  Not served - don't know

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Edit:  Received a letter from Midland 6/2/12 stating they were now servicing this account.

 

9. What state and county do you live in?   Los Angeles

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  EDIT: Last payment was 4/26/09.

 

11. What is the SOL on the debt? To find out:  4 years in CA

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Filed 4/30/13, St. Louis County, Not Disposed, Judge assigned

 

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?

Have not received Summons, only a forwarded letter from Gamache & Myers

 

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

No evidence sent

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I would check california rules, even if they keep their file date, you are outside the sol of ca.  Suing on a time barred debt is an fdcpa violation, also check califronia rosenthal act, it probably is a violation of that also.  Suingout of venue is also a violation.  I would find a consumer attorney If I were you.  Most will handle the case with no charges to you, the other side has to pay them if you win.  I see 2 violations there, that is 2000.00 just for fdcpa.  I am sure a good consumer attorney would be able to do better.

I am not from california, so others from cali may weigh in, but that is my opinion. :)

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edit-- if last payment was in april 2009, then default date would be may 2009, so they may have just made it under the wire.  But since it is in the wrong venue, they would have to refile in cali I believe, and by that time would be time barred.

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I would check california rules, even if they keep their file date, you are outside the sol of ca.  Suing on a time barred debt is an fdcpa violation, also check califronia rosenthal act, it probably is a violation of that also.  Suingout of venue is also a violation.  I would find a consumer attorney If I were you.  Most will handle the case with no charges to you, the other side has to pay them if you win.  I see 2 violations there, that is 2000.00 just for fdcpa.  I am sure a good consumer attorney would be able to do better.

I am not from california, so others from cali may weigh in, but that is my opinion. :-)

 

I don't think they are outside SOL in CA if last payment was 4/26/09, but within a couple of weeks from that point. I think SOL starts when a payment is due & you don't make payment & stop paying on account. By the time they file in CA. it could be to late for them & SOL would apply. I would look into this to be sure.

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I don't think they are outside SOL in CA if last payment was 4/26/09, but within a couple of weeks from that point. I think SOL starts when a payment is due & you don't make payment & stop paying on account. By the time they file in CA. it could be to late for them & SOL would apply. I would look into this to be sure.

 

yep see above post, I was thinking default date, not payment date.

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Midland Funding via Gamache & Myers sent a letter dated 4/29/13, postmarked 5/1/13 to relatives of mine in MO.  I have been a resident of California for 19 years.  Relatives forwarded the letter to me this last week, which was confounding to say the least.

 

Gamache & Myers stated in "process of instituting suit" on behalf of Midland Funding, whom I've never heard of.  They assigned their own file number - no creditor given.  I'm guessing the creditor is a card I went into default on 5/26/09.  No amount of suit given.

 

So found this site and have been studying.  Luckily one post guided me to Missouri Case Net and I found they filed 4/30/13, a judge has been assigned, "Disposition:  Not disposed", "Case Type:  AC Contract/Account (Bulk)".

 

After reading other peoples' experiences, I'm not sure which approach is best to use for my situation.  Learning of this a few weeks after it was filed also agitates the situation a bit.  I'm assuming I have 30 days to get something to the court to get this shut down.

 

Thanks in advance for your time and help, I appreciate it and look forward to your guidance.

 

**EDIT:  Ok, looked back through old files to track this down.  Appears it was a Chase Account, last paid 4/26/09.  I did get a letter from Midland on 6/02/12 saying they had taken over the account.  It had been through 4 other collection agencies in the meantime.

 

 

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.)

Gamache & Myers, Donald A. Horowitz

 

3. How much are you being sued for?  No amount mentioned in letter

 

4. Who is the original creditor? (if not the Plaintiff)  Letter does not say.  EDIT:  I received a letter from Midland 6/2/12 stating they had this account.  Original Creditor:  Chase.

 

5. How do you know you are being sued? (You were served, right?)  Have not been served, checked on Missouri Case Net

 

 

6. How were you served? (Mail, In person, Notice on door)   Not served

 

7. Was the service legal as required by your state?  Not served - don't know

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Edit:  Received a letter from Midland 6/2/12 stating they were now servicing this account.

 

9. What state and county do you live in?   Los Angeles

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  EDIT: Last payment was 4/26/09.

 

11. What is the SOL on the debt? To find out:  4 years in CA

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Filed 4/30/13, St. Louis County, Not Disposed, Judge assigned

 

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?

Have not received Summons, only a forwarded letter from Gamache & Myers

 

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

No evidence sent

Being that you have been here in California for the past 19 yrs please clarity how the alleged acct with Chase was derived? Were you temporarily a resident of MO because of school, job etc? If you answer the complaint, it will stay in that Jurisdiction or venue...there is another poster here who has been a resident of California but is being sued in another state. She looked into the jurisdiction/venue option and because she answered the suit, the case stays in the State she was sued in.

 

You will probably need to file a change of Venue or something to the effect of this case is outside the Jurisdiction of the State of MO as you are a resident of California. If you're unsure, you should research in your LA county rules on civil limited case or pm calawyer but in order to pm him you have to have at least 10 posts in your thread...

 

hth

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You can file a motion to dismiss based on improper venue.  Look up the rules of procedure for MO.  You might be able to file via the mail.  Call the clerk's office to see.  Explain the situation.  

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Being in California for 19 years is this particular account even yours or does it just happen to be someone with the same name. I know my name is not that common but there is someone with the same name as me in the same city.

 

I even once received a notice that a piece of property was being siezed for non payment of taxes in another county. My wife thought I bought property without her knowlege.  I had a realtor friend check into it for me. It wasn't me they were looking for. In California being married I could not buy realestate without her signature. You would think if anybody could find the right person the government can but apparently not.

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If they have to dismiss (if it were me, i'd try filing a motion to dismiss) then you could only hope they turn around and file in calif. :) unless they can do it by the 26th of may it would be time barred. It should be dismissed then, and you would have another violation on them. If they just get to change venue, then they would still be within the SOL.  But you still may be able to file a counter claim for wrong venue.  I would read the california rules very carefully, search out venue.

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Thank you ShellieH, Admin, Caprop, Helpme, and Racecar.

 

Home from work now, time to dive in to St. Louis County Motions to Dismiss for improper venue.  Missouri is two hours ahead, so I'll have to wait until tomorrow to call.

 

Thanks for your guidance, please add any other thoughts that may come to you later.

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Someone in the St. Louis County Clerk's Office finally got back to me.  He was kind of vague and claimed all forms needed were on their website - but there are no Motion type forms there, in fact their offerings were pretty limited.  I also learned that a court date HAS been set for June 10.  I had missed some of the navigation buttons used to learn more info on the site.  The clerk's office rep did give me a fax to which I could send the Motion.  He also informed me to fax and register mail the plaintiff.

 

Plaintiffs filed for service process on May 13, but of course I have not been summoned because I am in Los Angeles.

 

As far as I could tell, Missouri doesn't seem to entertain MTD's for Improper Venue, only Transfers of Venue.  But I don't see how that would work since I'm in a different state.  That is why I'm pursuing MTD for Personal Jurisdiction.

 

I've spent hours doing searches on here for Motions to Dismiss due to Lack of Personal Jurisdiction and have been consuming great info - but I'm still confused as to details and the format to be used. 

 

Can anyone point me to a completed form?  One filed in Missouri would be especially great since it seems some states have different formats/templates - or perhaps that's just the styles of different litigants.

 

Thank you again for guidance.

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Yeah, I'm searching case law like a crazed man for examples.  I do not have complaint, the MO website has very little info, pretty much just case number, judge name and date.

 

I'm also mining through other threads looking for someone who filed for a similar out of state issue while also scanning the Sample Motions thread.  Just haven't found the right type yet.

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Wow ShellieH, can't believe you came back to this and went digging - thank you so much for your thoughtfulness!  Especially since (if I'm figuring this correctly, I'm on PST) it looks like you posted in CO at 10:49pm.  You will have extra jewels in your crown, my dear.

 

Yes, those do give some ideas on format.  I had glossed over them previously because they dealt with judgements already made, divorce and alimony, and appeal to change judgement.  So they didn't fit so well for me, but I understand you were just trying to help me find a starting point for format.  I wish I had checked back here hours ago, I've been going at it manually.  Although I did find a nifty little Motion Doc template that I will download on the forum for others to use.

 

It's 2:42am here.  Hopefully I'll have this thing done in the next couple of hours.  I'll post in a fresh thread and I'd be grateful if you veterans could give it a going over before I fax and mail on Thursday.

 

Very grateful.

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format for all the court papers is the same.  the box, with the seperations in them.  then the header under, then another box with what ever it is your going to say.  That is the format you should use.  It's the header that makes it different, wheather it be alimony, divorce, or a motion to dismiss.

I make a blank one and save it, then I have it for all my motions.

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