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Midland Funding lawsuit Alabama - what to do?


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Ok, folks here is what we have.

 

1. Midland Funding is suing wife for a credit debt we don't recognize.

2. we answered the  summons with deny on all accounts.

3. the amount is $1674.13 plus court costs $176

4. they only have a first and last name on the summons, so it could be anybody with the same first and last name and there appears to be several.

5. the summons only shows the last 4 digits of the account number everything else is XXXX.

6. checking one of the credit reports shows no account history, it does show "Account Type: Factoring Company Account"

7. the summons also shows the wifes previous married name, she hasn't used that name in over 6 years.

8. the SOL for Credit card debt in Alabama appears to be 3 years. researching this site shows written contracts at 6 years.

9. didn't find this site until after we sent a letter of debt validation, just to try an find out what this debt is.

10. the summons says this is a citibank credit card which she has never had.

 

finally, her court date is July 9. I will be with her to (if possible) represent her.

 

any advice from here on out?

 

thanks.

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First good step is to check your local court's rules. In most courts an answer is required in 20 days. This follows the same format as the complaint:

 

Plaintiff

 

vs.                            Case number

 

Defendant

 

Title "ANSWER"

 

Then you admit or deny (matching numbers on their complaint)

 

EX:

 

1. Defendant admits name and adress

 

2. Plaintiff denies

 

etc.

 

Also in your court rules it will tell you if you need to list any defenses. Lack of Standing is most common.

 

Did they send any statements or affidavits with the complaint?

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All we have is the summons which seems to show 3 "cause of action", 1. breach of contract. 2. money had and received, 3. account stated. 

I don't have the answer in front of me, but we wrote deny on anything that we didn't recognize. i.e. pretty much everything except her name.

 

thanks

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1. breach of contract.

2. money had and received,

3. account stated.

"[An action for money had and received] is founded upon the equitable principle that no one ought justly to enrich himself at the expense of another, and is maintainable in all cases where one has received money under such circumstances that in equity and good conscience he ought not to retain it because in justness and fairness it belongs to another."

Marsh & Gamble, § 34:2. "[A] cause of action for money had and received is `less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which. . . belongs to the plaintiff.'" Staats v. Miller, 150 Tex. 581, 584-85, 243 S.W.2d 686, 687-88 (1951)(quoting United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 402-03, 54 S.Ct. 443, 78 L.Ed. 859 (1934) (emphasis added)).

An account stated is an agreement between parties who have had previous monetary transactions. Walker v. Trotter Brothers, 192 Ala. 19, 68 So. 345 (1915). An account stated is not founded on the original liability between parties, but rather on the defendant's admission (which can be express or implied) that a definite sum is due. Martin v. Stoltenborg, 273 Ala. 456, 142 So.2d 257 (1962). When an account is rendered and is not objected to within a reasonable time, the failure to object becomes an admission that the account is correct, and it becomes an account stated. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 156 So.2d 678 (1963). It is as if a promissory note had been given for the balance due. Ingalls v. Ingalls Iron Works Co., 258 F.2d 750 (5th Cir.1958).

The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs' performance under the contract; (3) the defendant's nonperformance; and (4) resulting damages. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 (Ala. 106*106 1999).

The elements of a valid contract include: "`an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.'" Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep't of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)). Under the Alabama Rules of Evidence, "when an issue is raised (a) whether the asserted writing ever existed, or ... ( c ) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact." Rule 1008, Ala. R. Evid.

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Of course I am not sure if we are heading the right direction, but as far as I can tell from what I have read so far on this website, the account is past it's SOL (if it is even hers) and midland is going to have to produce some documentation that shows this account actually belongs to her via signature?

I also called the lawyer office that was recommended by this site and their office said, that if we hire them they know midland and will make them go away. However, if we represent ourselves and win, then we are "eligible" to counter sue. Otherwise, midland just goes away. I would rather counter sue. :-)

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Racecar, fortunately, (even though I am no lawyer), I pretty much understand everything you relayed. Thanks, I am just not sure what to do since nobody knows where this "contract" or "account" came from. Could it be hers? possibly. But, not as a citibank credit card. we haven't had any credit cards in years.

 

FlyerFan, Thanks, that makes me feel better. As far as last payment date or statements? when you say statements, I am assuming you are talking about credit card statements. The answer to both questions is Nope. All the summons has is a bunch of statements saying that the defendant entered and agreement, failed to pay and is now liable. The only "facts" that I can see are our current address, the amount owed and a partial account number.

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If its not your account you could be a victim of identity theft if so,

1.Submit a report about the theft to the FTC. When you finish writing all the details, print a copy of the report. It will be called an Identity Theft Affidavit.

2.Bring your FTC Identity Theft Affidavit when you file a police report.

3.File a police report about the identity theft, and get a copy of the police report or the report number. Your FTC Identity Theft Affidavit and your police report make an Identity Theft Report.

http://www.consumer.ftc.gov/features/feature-0014-identity-theft

http://www.consumer.ftc.gov/articles/0277-create-identity-theft-report

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Yes get that stuff filed and bring it to court.

I would also answer plaintiffs complaint.

If you don't midland will win a default judgment against you and then apply for garnishment to get your money in the bank or your wages.

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racecar,

thanks, tomorrow i will get credit reports from the big three and see if there is anymore information out there. Then I will check with the local police department about a n identity theft case. Finally, I will check with the court clerk to see whether I need to admit the report or just bring it with me.

 

so, new question, would this end up having any bearing on the outcome of the case? I would assume so, but I am not sure how I could present it. 

 

thanks to both of you for the help.

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So, one last question (I think), when the court date arrives, any recommendations on how we should proceed?

I would think that the SOL would be the primary defense, since they have not shown a last payment date or any type of statements. and the credit report also shows not activity of any kind.

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Ok,

so after some more reading, I feel that we have the following defenses:

1. SOL - since there is no payment dates listed in the credit report and no evidence of such included with the summons.

2. Lack of Standing - since no copies of any paperwork that shows the debt is owned by the wife were included with the summons.

3. (Possibly) Failure of Consideration - since there is no paperwork showing any payments of any kind, nothing on the credit report either.

4. (Possibly) Equitable estoppel - if they show up at court with facts that were not given to the defendant?

 

not sure what else to include, I would think that I would not need much more than that. Although I could keep digging.

 

thanks.

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If you bring in the forms for the identity theft it should kill the case.

You would want to deny all of plaintiffs complaint.

I am a victim of identity theft and do not owe the debt.

also

Mistaken Identity – Plaintiff has sued the wrong person.

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Racecar,

I also considered the mistaken identity argument since the complaint shows a first name and last name and there are several of those in this state.

The argument I would probably use for that is the "lack of standing" mentioning that this debt could belong to person x or person y (without using actual names)

since there does not appear to be any paperwork included with the summons that shows a signature or SSN or something tying this account number specifically to the wife. 

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Ok everyone,

I just called the county clerks office and they pulled the "court case", I asked if there was any evidence or affidavits included, there was a pause followed by a "huh, no. No evidence or affidavits". I'm starting to feel more confident about this case. :-)

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http://scholar.google.com/scholar_case?case=6182041177061432766&q=samuels+v+midland&hl=en&as_sdt=3,33&as_ylo=2013&as_vis=1

 

 

http://scholar.google.com/scholar_case?case=9107548994443303227&q=midland+v.+bandy&hl=en&as_sdt=3,33&as_ylo=2013&as_vis=1

 

Here are links to two of many cases filed this year against Midland in Alabama for FDCPA violations.  If you live in north Alabama, contact  Micah Adkins at www.bhflegal.com or John Watts at www.wattsherring.com.  Midland is notorious for suing debtors with no evidence to back their claims.  If you have FDCPA violations, a good consumer lawyer should represent you without charge,

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