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http://scholar.google.com/scholar?q=midland funding&hl=en&as_sdt=4,33,349,350,351,352

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http://scholar.google.com/scholar_case?case=6850246955314908850&q=midland+funding&hl=en&as_sdt=4,33,349,350,351,352

Examination of the pleadings reveals another more substantial problem beyond the failure to disclose the name of counsel. The plaintiff is designated as "Midland Funding LLC DBA in New York as Midland Funding of Delaware LLC." DBA is generally thought to be an abbreviation for "doing business as," a term which means that an individual or entity—such as a 941*941 corporation or limited liability company—is conducting or transacting business in New York under an "assumed name." This should not be confused with the jurisdictional concept of "doing business" in a particular state so as to be present for the commencement of litigation.

New York law (General Business Law art 9- B ) requires that a person or entity doing business under an assumed name comply with the requirements of General Business Law § 130. The statute requires a limited liability company to file with the secretary of state a certificate setting forth the name under which business is to be carried on, conducted or transacted as well as its legal name (General Business Law § 130 [1] ). The statute also provides, "the `real name' of a limited liability company shall mean its name as set forth in its articles of organization and any generally accepted, understood or recognizable abbreviation of such names" (General Business Law § 130 [1-a] ). This being the case, because both Midland Funding LLC and Midland Funding of Delaware LLC are registered as foreign limited liability companies with the Department of State, both are "real names" under the statute. Therefore, one entity cannot be a "DBA" for the other entity. The idea is that there is only one legal person (General Business Law § 130 [1-a] [a]) whether the name being used is either the name of the legally registered entity or individual, or the one under which business is being conducted. There is no evidence that the proper certificate of doing business under an assumed name has been filed by the plaintiff.

For instance, should Clark Kent abandon his altruism and decide to supplement his meager reporter's income by marketing his alter ego, he would go from "Clark Kent aka Superman" to "Clark Kent dba Superman." Other proper "doing business as" designations would be "Scrooge McDuck Enterprises, Inc. dba The Duckburg National Bank." Or even "Rick Blaine dba Rick's Café Americain." This issue could get complicated as in the case of the performer "Prince" when he decided to be called "The Artist Formerly Known As Prince." Was this a change of name or was he now really "Prince dba The Artist Formerly Known As Prince?" (This apparently is an issue for a higher court to resolve). Also an interesting situation was created by Halley Mills playing the twins Susan Evers and Sharon McKendrick in "The Parent Trap" and Patty Duke portraying both Patty Lane and her identical cousin Cathy Lane in "The Patty Duke Show." Can a person "do business as" more than one other person?

942*942 In this litigation, a designation such as either Midland Funding LLC, doing business as "Midland Funding of New York" or Midland Funding of Delaware LLC, doing business as "Midland Funding of New York" would be proper. The current attempt to have one registered LLC be designated as another LLC is not permitted. Each entity named in the caption is capable of doing business as or under an assumed name, but cannot do business under each other's name.

Perhaps the situation has been complicated because plaintiff alleges that "[p]laintiff is a debt collector licensed by the NYC Department of Consumer Affairs, License #1312658." A search of the Department of Consumer Affairs records shows that license number belongs to Midland Funding of Delaware LLC and not Midland Funding LLC. Which means only Midland Funding of Delaware may attempt to collect this debt in New York City.

In fact, this practice may be a "deceptive" act or practice under General Business Law § 349 in that it is impossible for the defendant to know which entity is the correct plaintiff. The complaint alleges that this consumer credit debt was taken by assignment from the original creditor. It is impossible for either the defendant or the court to determine which of the two Midland LLC's named in the complaint is the proper one. The complaint does not plead which entity actually purchased the defendant's alleged debt nor which entity is trying to collect it. Plaintiff may be subject to damages and punitive damages under that statute if a deceptive practice is established. The court at this juncture will not conclude any bad faith on the part of the plaintiff and will give the plaintiff the opportunity to correct the pleadings.

In an attempt to resolve these issues and determine the name of counsel, the court recorded the entire summons and complaint and then played it backwards. All to no avail.

The commencement of litigation to collect consumer debt is neither "brain surgery" nor "rocket science." But it does require some attention to the rules of civil procedure, which based on this court's experience, apparently is not part of the equation for a significant number of members of the debt collection fraternity. When you buy furniture from IKEA to be assembled, it is generally a good idea to read and follow directions lest the furniture unexpectedly collapse under its own weight. You should not mistake an Allen wrench for a walking stick provided by Obamacare for Thumbelina; it, like the CPLR, is there to help you successfully complete the project.

943*943 Based on the foregoing, the clerk is directed to stay placing this matter on a trial or motion calendar or entering a default judgment until plaintiff files an amended summons and complaint designating counsel with the proper contact information and correcting the plaintiff's "doing business as" status.

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Why would the first statement in a complaint be??:

 

Plaintiff is a Ohio Limited Liability Company

 

 

What is my response to that?  How would I know?  I'm sure I could look it up, but what does that have to do with them suing me in NYS with a local lawyer?

 

It could be that they're just providing information as to who they are.  If it were me, I might provide one of the following responses:

 

Defendant has insufficient information to admit or deny and, therefore, denies.

 

OR

 

Defendants admits based upon information and belief.

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Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

 

 

 

"Defendant lacks information sufficient to to form a belief about the truth of the allegation."

 

You need say nothing more.

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