Jump to content

New member being sued in SC by Midland Funding/Korn Law


Recommended Posts

New member here but have been reading the boards for a bit. I received a summons from Korn law firm in SC defending Midland funding. They are suing my for an old Chase card. I could use some help on exactly how to file the response to the summons. It looks like I am going to have to defend myself, I wen't to see a local attorney and she wanted a 3k retainer and &200/hr, said it would take about 1k to file the response. So that's not going to happen. I am attaching the paper work I received from Korn. Looks EXACTLY like a few I have seen on here. So I just need some help to make sure I do this correctly. 

 

I do have a couple of questions as well:

 

1. They are stating my last payment was Sep 7, 2010. My credit report for this account, when I pull up the OC account, shows the same date for "date of last payment." However, the "date of first delinquency" shows 10/2008 (which is when I believe the actual last payment was made, I can't remember specifically though) Also, the 81 month payment history shows 120 past due for 10/2008, 150 past due for 11/2008, then 180 past due starting in 12/2008 until present. The last record on the OC history shows CO in Feb 2012.

 

Midland states the account was charged off in Aug 31, 2009. So These dates don't seem to add up and I'm wondering if this has anything to do with the SOL in SC being 3 years. 

 

2. How can I positively define when the actual last payment was made? Should I call Chase directly?

 

3. Should I raise SOL now or can it be used later?

 

4. I can't seem to find the site for the notice of service to check it. York county, SC

 

5. Not sure if this matters but they tried to serve me at my ex wife's house, where I have never lived. So they apparently don't have my address.

 

 

 

I REALLY appreciate any and all help with this. Thanks SO much in advance.

 

 

 

 

post-132772-0-77260500-1374683005_thumb.

post-132772-0-52975400-1374683011_thumb.

post-132772-0-59532500-1374683017_thumb.

post-132772-0-45355700-1374683024_thumb.

post-132772-0-47417400-1374683029_thumb.

post-132772-0-78950100-1374683034_thumb.

post-132772-0-49425500-1374683041_thumb.

post-132772-0-31780100-1374683046_thumb.

post-132772-0-37150800-1374683051_thumb.

post-132772-0-15433000-1374683058_thumb.

post-132772-0-82551700-1374683087_thumb.

post-132772-0-92873000-1374683093_thumb.

post-132772-0-13941400-1374683099_thumb.

 

 

 

Link to comment
Share on other sites

How long do you have to answer?  I would find out for certain when the last payment was first, then you can use the SOL defence, along with a counter suit for suing on a time barred debt.

If you want to know for sure, go to the bank and pull your bank records for sept/oct of 09 when you think was the actual last payment.  Then pull them for the month before, and the month after for sept. 2010.  This will show you if you actually made any payments in that timeframe.  some banks will pull just checks made out to the OC, so chase, or whatever the card was named. If your SOL is 3 years, it is vitial you find the correct last payment.

  • Like 1
Link to comment
Share on other sites

Well I pulled the bank statements and there is nothing there to chase on anyone else, as I figured. And as far as I can remember this is the only account I had. So my question is; if I claim SOL how do I prove it? How is that normally done? And if I want to file a counter suit for suing after the SOL does that have to be done in my answer? Also, do I have to use SOL in an affirmative defense when I answer or can it be used later?  And one more, do I need to file to strike the "affidavit" (exibit A) with my answer? 

 

Thanks for the help

Link to comment
Share on other sites

google rules for civil procedure for SC.  then search out the part about answering.  Some states require you use the SOL defense in your answer, your rules will tell you if counter claims need to be in your answer.  Also, If I were you I would see if there are any consumer attorney's in your area.  Many will take your case for only filing fees if you have a strong sol defense, as the other side will have to pay their fees, and you counter suit could bring you 1000.00 for FDCPA violations, as well as any that would apply to your state. I am not familiar with your rules, so you need to read them, then if you have a question about them, post. 

Maybe someone from SC will chime in.

Link to comment
Share on other sites

Well I pulled the bank statements and there is nothing there to chase on anyone else, as I figured. And as far as I can remember this is the only account I had. So my question is; if I claim SOL how do I prove it? How is that normally done? And if I want to file a counter suit for suing after the SOL does that have to be done in my answer? Also, do I have to use SOL in an affirmative defense when I answer or can it be used later?  And one more, do I need to file to strike the "affidavit" (exibit A) with my answer? 

 

Thanks for the help

 

If you can show that you did not make a payment when they claim you have, you can use your bank statement as evidence to show that.

 

I would include the SOL as an affirmative defense in your answer AND file a counter-claim at the same time.

 

"Striking the affidavit" is incredibly premature at this point. Now you simply answer the complaint (respond to each paragraph with a denial or admit). You can admit your name and address if they are correct and deny everything else. Match paragraphs though.

 

I would also not put in the answer that you paid on THIS account at any time, simply state that you have not paid on ANY Chase account since (whatever the date of your last payment was).

Link to comment
Share on other sites

Did you check both the August and September bank statements?  The law firm representing Midland is known to motion to compel bank records after they've requested discovery.  You want to be positive that there is no payment on any bank statement that could possibly indicate an August payment.

 

Did you have any other bank accounts from which a payment could have been made? 

 

If you're positive no payment was made, and you have no other bank accounts, you've got some good evidence in your favor.  It would then be up to Midland to prove you made a payment some other way. 

 

At some point, you may need to include an affidavit stating that you have no other bank accounts and never made any payment towards any account with Chase in Aug. 2010 or any time thereafter.

Link to comment
Share on other sites

yep, still waiting on Aug statement but I am 99% positive there were no payments made. Interesting thing is; on my credit report chase reported last payment in sept 2010. But the payment history shows the account going over 180 days past due in 2008, which is about when I believe the last payment was made.  Also, on the credit report, midland has reported this account multiple times, all showing "date of last activity" as NA except when I click on the account link where is says "most recent account" then this comes up..and you can see the "last activity". something funny is going on..

 

MIDLAND CREDIT MGMT INC Company/Account Name: MIDLAND CREDIT MGMT INC Company Address/Phone: 8875 Aero Dr Ste 200
San Diego, CA 921232255
(800) 825-8131  Account Number: 854761XXXX Date Opened: 03/01/2012  Last Activity: 10/01/2008  Type: Open Rate/Status: Collection High Credit: $5,135  Terms: N/A Balance: $5,285  Past Due: $5,285 Most Recent Date Reported: 06/01/2013  Comments on Account: COLLECTION ACCOUNT  

<iframe name="_bkframe" height="0" width="0" frameborder="0" "src="javascript:void(0)" style="color: rgb(0, 0, 0); font-family: 'Times New Roman'; font-size: medium;"><span style="color: rgb(0, 0, 0); font-family: 'Times New Roman'; font-size: medium;"> </span><iframe name="__bkframe" id="__bkframe" title="bk" style="color: rgb(0, 0, 0); font-family: 'Times New Roman'; font-size: medium; border-width: 0px; width: 0px; height: 0px;"> 

Link to comment
Share on other sites

very interesting I know. No I haven't filed my answer yet. I have until the 15th. I have september statements, no payment. Just waiting on aug. Should be here in 3-4 days.

 

Wow.  This is actually new territory for me in our state.  It's been several years since I was sued, and I didn't have to deal with this issue.  I know that in some states, a defendant can file a Motion to Dismiss the complaint instead of filing an answer if the defendant has proof that the claim is invalid.

 

I also know that this can be done in the SC federal court.  Can it be done in civil court?  I'm not sure. 

 

Here's my first suggestion.  Contact the lawyer referral service at the SC Bar Association.  Tell them you need a consumer attorney in your area.  They'll give the name of an attorney.   Because you got the attorney's name from the service, he'll give you a consultation at a reduced fee.   For instance, he may charge you $75 for a half-hour consultation.  Some attorneys will even do the consultation over the phone. 

 

Just ask if you can file a motion to dismiss in lieu of an answer.  The attorney would tell you exactly what to do.

 

If you can't afford that consultation, you could answer the complaint, use the statute of limitations as a defense (cite the SC SOL statute), and include your bank statements with your answer.   That being said, you'd need an affidavit from an officer at your bank attesting that the bank statements comply with Rule of Evidence 803(6).   That rule contains the language that must be included in an affidavit.  A bank officer would have no problem signing such an affidavit.  Also, someone at the bank would, more than likely, be a notary who would be able to notarize the affidavit.  You would include the affidavit with the bank statements.

 

The law firm who is handling the case is fairly aggressive.  Judging from past cases, after a defendant answers the complaint, they send discovery requests.  In those requests, they ask for bank records that show you made payments to the credit card company.  Most defendants don't provide anything in discovery.  That's normal.

 

But, this law firm usually files a motion to compel answers and documents.  You'd have to provide your bank statements.  In your case, your bank statements will support an SOL claim.  Since your bank records support your claim that the debt is outside the SOL, I'd go ahead and use the defense and provide the documents.

 

Just talk to an attorney first to see if you should file a Motion to Dismiss before filing an answer.  If it works, this case could be over much more quickly.

Link to comment
Share on other sites

Thank you SO much for the input on this. Question; Do I have to file SOL in the answer? Ie admitting to the debt. Or can that be brought up later. As in file a standard type answer denying everything. Requesting proof etc. Then verifying that the have no documents. Then claim SOL if I have to? Again, I am 99% sure that there was not a payment. I just don't want to be surprised by anything. 

Link to comment
Share on other sites

SOL 3 years in South Carolina same as Delaware

Delaware's three year (3) statute of limitations set forth in Delaware.Code Ann. Tit. 10, § 8106

This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=chase+bank credit agreement you will need a copy for court

Statute of limitations is pleaded as an affirmative defense in your answer to plaintiffs complaint.

MY court name here

plaintiff name

plaintiff

vs

defendant name

defendant
case #

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT

COMES NOW the defendant MY NAME, Pro se (hereinafter referred to as"defendant"), submits Defendant’s Answer and AFFIRMITIVE DEFENSES to Plaintiffs' Complaint as follows:
Defendant is without information or knowledge sufficient to form a belief as to the truth
of the allegations contained in ¶ 1 ¶ 2 ¶ 3 ¶ 4 ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 9 ¶

As to all remaining allegations of fact in the unnumbered ¶ 1 ¶ through ¶ 9 ¶ of the complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or expertise to respond to such legal conclusions and, therefore, denies them.

 

AFFIRMATIVE DEFENSES
By and for his Affirmative Defenses, Defendant states:
First Affirmative Defense
1. Statute of limitations

 

You will have to prove this to the judge - court you can use plaintiffs paperwork that shows delinquent 9-2009 have a credit agreement printed out for court and one for the plaintiff and one for yourself. Make three copies of midlands paper showing the delinquent 9-2009. File your answer with the court clerk send a copy to plaintiff and make a copy for you.

 

WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny
Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

respectfully submitted,


my name here
Defendant, pro'se
address
phone

 

 

 

certificate of service

CERTIFICATE OF SERVICE BY REGULAR MAIL
I, my name do hereby certify that a true and exact copy of the foregoing Answer To Plaintiffs Complaint was served to JUNK DEBT BUYER by United States mail, postage prepaid, addressed as follows to attorneys name and address for JUNK DEBT BUYER.
from: my name my address my phone sent on this date 08/02/13

 

 

 

 

 

 

 

Link to comment
Share on other sites

 ok thanks. Here's maybe a dumb question; If I am basically denying everything, and claiming SOL as an affirmative defense, and therefore submit paperwork from my credit report trying to prove it is out of SOL, is that paperwork not incriminating myself as to me admitting the debt? 

 

It would seem that way and it is not a dumb question.

 

Think of it this way. Let's say you saw that on your credit report and believe it is not your debt. Whether you were being sued or not, you would dispute it, correct?

 

The simple fact that is there does not necessarily mean you agree with it.

 

The sentence, "This is not mine and I don't know why they are reporting it as mine and, even if it was mine, it is outside the SOL." makes perfect sense.

Link to comment
Share on other sites

How does this look? appreciate any input. have to file this tomorrow.

 

STATE OF SOUTH CAROLINA

COUNTY OF YORK

MIDLAND FUNDING LLC,

                                        Plaintiff,

      vs.

 

,

                                      Defendant (s)

 

IN THE COURT OF COMMON PLEAS

 

 

 

 ANSWER

 

 

(NON-JURY COLLECTION ACTION)

 

C/A NO

 

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT

COMES NOW the defendant, Pro’se (hereinafter referred to as "Defendant"), submits Defendant’s Answer and AFFIRMITIVE DEFENSES to Plaintiffs' Complaint as follows:
Defendant is without information or knowledge sufficient to form a belief as to the truth
of the allegations contained in ¶ 1 ¶ 3 ¶ 4 ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 9 ¶

As to all remaining allegations of fact in the unnumbered ¶ 1 ¶ through ¶ 9 ¶ of the complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or expertise to respond to such legal conclusions and, therefore, denies them.

 

(1)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (1).

(2)  Paragraph (2) is admitted.

(3)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (3).

(4)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (4).

(5)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (5).

(6)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (6).

(7)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (7).

(8)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (8).

(9)  Defendant has insufficient information to admit or deny. Based upon the foregoing, Defendant denies paragraph (9).

 

AFFIRMATIVE DEFENSES
By and for his Affirmative Defenses, Defendant states:

First Affirmative Defense

1. Statute of limitations

 

 

WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny
Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

Respectfully submitted,
signature


 

Defendant, pro'se
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE BY REGULAR MAIL
 

, do hereby certify that a true and exact copy of the foregoing Answer To Plaintiffs Complaint was served to Midland Funding LLC, by United States mail, postage prepaid, addressed as follows.

 

To;

 

Korn Law Firm, P.A.

P.O. Box 12369

1300 Pickens St.

Columbia, SC 29211-2369

From:

 

 

Sent on this date; 8/15/1013

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.