Jump to content

Midland Funding lawsuit Alabama - what to do?


Recommended Posts

That could mean the date Midland "opened" the account after the default with the original creditor in 2006.

 

That's correct.  "Date opened" means the date the account was opened in that furnisher's file.  In the case of a JDB, that would be the date they were either assigned to collect for the OC or the date they purchased the account.

 

It has nothing to do with the date the account was originally opened with the OC.

Link to comment
Share on other sites

FYI, 

for everyone, 

Even if I don't (for some reason) get out of this issue by the SOL.

They can't prove anything on the account itself.

 

the complaint says "CITIBANK" credit card - XXXX-XXXX-XXXX-5996

but the credit report says                           - 8538-62XX-XX          (10 possible digits)       (of course the report doesn't show any "-")

 

Can anybody tell me this.....

1. can you honestly get a citibank credit card account from any of that information?

2. can you establish that either of those sets of numbers belong to each other?

3. can you establish any possible connection between either of those numbers and anybody?

 

BTW, the credit report only has that account number listed and show it in dispute. So that has to be the account number that midland is referring to.

Link to comment
Share on other sites

Ok,

for those of you keeping an eye on this one. I just made an important discovery.

Midland "claims" a CITIBANK credit card right?

 

Doing some research shows that all credit cards first 6 digits are the identification number which shows the issuer and all credit cards issued by "banks or financial institutions" start those first 6 digits with either 40-49 or 50-58, however this account number starts with 85, which is not a valid credit card number!!

 

thanks.

Link to comment
Share on other sites

I agree there is a lot wrong with all the documentation the JDB's throw at you. And I'm sure we will all agree that you attack everything.

 

I think you're priority is the SOL though as that could put money in your pocket. But by all means, attack it all!

 

Btw, it is not uncommon for them to change account numbers once they take over an account. It is no longer a Citibank card, that is just what it was when the allegedly bought it.

Link to comment
Share on other sites

Flyerfan,

I will certainly attack the SOL as best as I can.

but, I will also do my best to point out that we haven't had a credit card in years, let alone a citibank credit card. I would pursue the identity theft angle, but the wife did't have enough credit a few years ago to get a credit card, let alone a citibank card, especially with a $1000+/- limit.

 

I would assume that since this is small claims court, there will be a lot less formality than some of the cases I have read that are in a federal or appeals court?

Link to comment
Share on other sites

Does your court allow discovery? In some smaller courts you have to request discovery.

 

My plan of attack on this one would be to file a motion to dismiss based on the SOL as a start. You will find out very quickly if that will get rid of this immediately. In their opposition (if they even file one) they will have to prove the date of last account activity (they will probably supply an affidavit with no proof) but they may simply dismiss if they realize that you caught them and the account is clearly outside the SOL. You can file a suit against them for suing on a time barred debt after the case.

 

JMO

Link to comment
Share on other sites

Ok, 

so here are the "facts" in the complaint from midland..

 

3. CITIBANK ("issuer") issued a credit card to Defendants(s) under its account number XXXX-XXXX-XXXX-5996. Defendant(s) received and used the card and thereby became obligated to pay for the charges incurred  with the card.

 

4. Defendant(s) defaulted on the obligation to make monthly payments on the credit card account. The entire balance on the credit card is presently due and payable in full.

 

5. The account was assigned to the Plaintiff, who has the right to bring this action.

 

6. The issuer mailed to Defendant(s), monthly bills reflecting, inter alia, all charges incurred with the credit card, the monthly payment due, and  the total balance due. These monthly bills were mailed to the Defendant(s) address, proper postage affixed and not returned undelivered to Issuer.

 

7. Pursuant to the card agreement and/or applicable law, Defendant was required to notify Issuer of any disputes. Defendant's failure to submit such disputes constitutes an admission of the account balance. To the best of Plaintiff's knowledge and belief, Defendant(s) did not send to the Issuer of Plaintiff and such disputes.

 

8. Through its undersigned attorney, Plaintiff has demanded payments from Defendant, but Defendant has not satisfied such demand. Plaintiff has performed all conditions precedent to the filing of this action, or all such conditions precedent have occurred.

Link to comment
Share on other sites

continuing on.....

 

First Cause of Action - Breach of contract

 

9. The issuance of a credit card constitutes the offer of a contract. Use of a credit card constitutes acceptance of the terms of the credit card agreement. The issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit.

 

10. By using and/or authorizing the use of the credit card, Defendant(s) accepted the contract with the Issuer and became bound to pay for all charges incurred. Defendant(s) also became subject to all of the terms and conditions of the card agreement.

 

11. Defendant(s) defaulted in the payment obligation on the credit card. Such a breach of contract proximately caused the Issuer damages in the amount of the balance due on the credit card account. That obligation has been assigned to Plaintiff, who is the party entitled to enforce the contract and receive payment of the credit card balance.

 

12. Defendant is presently indebted to Plaintiff in the amount of $1630.14. Plaintiff seeks judgement for such sums, together with post-judgement interest at the Alabama statutory rate.

Link to comment
Share on other sites

Next,

Second Cause of Action - Money had and received

 

13. In the alternative, and without waiving the foregoing, Defendant received and used (or authorized the use of) the credit card knowing that the Issuer expected to be repaid for all  charges incurred with the card, together with interest thereon. With each use of the credit card the Issuer paid money on Defendant's behalf to the merchant with whom the credit card was used. Defendant is liable for repayment of such sums under the doctrine of money had and received. Plaintiff is the assignee of the Issuer's right to be repaid by the defendant for such money had and received.

 

Third cause of action -account stated.

 

14. In the alternative, and without waiving the forgoing, Plaintiff asserts that the Defendant's use of the credit card to purchase goods and services represented a periodic account, for which the Issuer rendered monthly statements to Defendant(s). To the best of Plaintiff's knowledge and belief, Defendant(s) did not dispute those statements to Issuer or Plaintiff. Plaintiff is the assignee of the Issuer's right to be repaid by the Defendant(s) for such account stated.

 

WHEREFORE, premises considered, Plaintiff prays that the Court enter judgement against the Defendant for:

 

A. $1630.14, for which is the balance due on the credit card;

B. post-judgement interest at the Alabama statutory post-judgement interest rate;

C. all costs of court; and

D. all such other and further relief to which Plaintiff may be justly entitled.

 

so, that's what I got. 

 

Any comments???

Link to comment
Share on other sites

Racecar,

it's small claims court. I just wanted to provide everyone as much useful information as possible.

We will go with the SOL as our primary defense.

If that's not enough, the I would challenge the plaintiff to provide anything that would show that there is indeed a full account number and is in fact a citibank number.

then I would also challenge the validity of the account being associated with the wife. since she has never owned a citibank credit card as they claim.

I don't really think this will go to far since the information that I have supplied is the only information (other than name and address) that was given in the summons.

 

thanks to everyone

Link to comment
Share on other sites

ALABAMA SMALL CLAIMS RULES

Rule C. Beginning and defending the case

 

Defending. The defendant shall file a short and plain reply showing what

defendant admits, what he denies and why he denies it. This reply shall be called

an answer, shall be filed within the deadline set forth at Rule “F”, and the form of

answer appearing in the appendix to these rules shall be sufficient. If a defendant

has a claim against a plaintiff, he shall file it with his answer and send a copy of it

to the plaintiff. Said claim shall be in the form applicable to a complaint and it

shall be called a counterclaim. Failure of a defendant to make a counterclaim

which is based upon things which gave rise to plaintiff's claim will not of itself

prevent the defendant from raising such claim in another court or case so long as

the defendant either wins his case in the court or prevents the judgment of the

court from becoming a final judgment by the filing of a notice of appeal as

provided in Rule “M”. Answer may not be made by a motion to dismiss. The court

shall be very lenient in the allowance of changes or amendments to complaints,

answers and counterclaims and continuances of trials when necessary to serve

the ends of justice.

 

ALABAMA SMALL CLAIMS RULES

Rule G.

Exchange of information in advance of trial.

The parties are encouraged to make voluntary exchanges of information

before the trial but in no event shall the court require such an exchange

 

Rule N.

Applicability of ARCP

The Alabama Rules of Civil Procedure as modified for applicability in the

district courts shall be applicable to court cases when necessary to serve the

ends of justice and when the Alabama Rules of Civil Procedure, as modified, are

not inconsistent with these rules.

Link to comment
Share on other sites

FYI, 

for everybody that helped us. We got the case dismissed with prejudice.  As I had anticipated, the lawyer for midland wanted to discuss the case. So, we went into the hall and he was not only polite, but also didn't seem to care whether he won or lost the case. We stated that this was not the wife's account and that I don't allow credit cards in the house. I also stated that this account shows a last activity date of 2006, to which he responded, "hmm, my date shows 2007" so that would be in the time limit for "breach of contract". To that I said, "true, but do you have "ANY" documentation? Anything? I am sure you don't since this was never her account. Also, we feel this may either be mistaken identity or identity theft. Finally, in the 2006 time frame the wife didn't have enough credit to get a card anyway." The lawyer didn't skip a beat and said, "well, midland doesn't usually allow us to dismiss the case." I replied, "Well....', then he suddenly changed gears and said, "wait, there is a form here to dismiss the case." So, he then proceeded to explain that the form will not only dismiss the case, but, also that the wife would not be liable for anything, court costs, attorneys fees, or the debt itself. And, he also stated that the form also states "with prejudice". We all know what that means. Midland cannot bring up again. Yee, haw! (as they say here in the south). So, the wife signed and the judge dismissed the case and we were free to go.

My take? The lawyer admitted that midland didn't give him anything and so he knew his chances of winning were slim. Add that to the fact that his "cut" of the winnings would probably not make up for the time spent arguing his side and it would just be faster and more profitable to throw our case in the circular file and try for another one. 
 

  • Like 2
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...