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Being Sued In Phoeniz, AZ By Midland, Kaplan

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Hello,

 

I am a newbie here I am so glad I found this website I didn't have a clue what to do. 

I am in same boat as some of the members here with Midland. 

I have read so many topics about Midland and the people here who have been successful in winning against them.

I have a pretty good idea of what to do but want to make sure I do not make any mistakes that could jeopardize my situation. 

If anyone can help me with a few questions it would greatly appreciated.

Here are some details along with the summon received ( attached as pdf I blacked out personal information.) 

 

Question? I wanted to find out can I the husband fight this if my wife is the name on the summons?

 

Thank you for making this forum and to all the people here who have such great knowledge of what to do and help others, you are awesome, I have read some great post.

 

  1. Who is the named plaintiff in the suit? my wife and john doe husband (me)

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Jerold Kaplan, Fredrick J Dias

    3. How much are you being sued for? 700.00

    4. Who is the original creditor? (if not the Plaintiff) First Bank Of Delaware(is what is on the summons)

    5. How do you know you are being sued? (You were served, right?) Yes they served someone at my home.(on the 23rd
    )

    6. How were you served? (Mail, In person, Notice on door)
    In person,  they did not say you are served they did tell her that they were a clerk of the court, I do not think it matters but just saying.

    7. Was the service legal as required by your state
    ? It seems so I looked up the case on line although they have it as the 17th and it was given on the 23rd

    8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent letters from Kapalan Law office

    9. What state and county do you live in?AZ, Maricopa

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They have the last payment posted 7/14/2008

    11. What is the SOL on the debt? To find out: I think it is 6 years


    12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). It show filed on the 17th with nothing else.

    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, but they  have2 more on her credit report I will do it for them.

    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? I received the summons on the 23rd but I think are trying to make it look like the 17th  if it is the 17th 13 days if not 20 days; They are claiming : number 2 is below

That heretofore and prior to the filing of this action Defendant(s)

Did, for valuable consideration enter into a contract with plaintiff’s

Assignor; the terms of which are attached hereto and by reference made a  part hereof: that balance remaining due and unpaid on said contract at the time of the filing of this complaint is in the amount $xxx.xx. The original creditor in the above-referenced action is

FIRST BANK OF DELAWARE, the original account number is ENDING IN 0xxx,

And the balance of the account at the time of charge off by the original creditor was $XXX.XX. The current principal balance due and owing is $XXX.XX4. That said Defendant(s) has/have failed and refused to pay said balance and that said balance~ is justly due and owing to Plaintiff herein. The said contract does provide for reasonable attorney fees which are in the amount of not less than $188.96 if upon default together with interest.

HEREFORE, Plaintiff demands judgment against Defendant(s) and each of them, for principal in the amount of $xxx.xx with accruing interest at 4.250% per annum from the date of the judgment with costs, together with reasonable attorney fees of not less than $188.96 as provided by the contract, if upon default, and any further relief the Court may deem just.

DATED this July x2, 2013.I also attached the whole file



16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I haven’t yet.

 

If there are typo errors sorry.

Thank you for your time and any help leading me in the right direction.

File Redacted.pdf

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Here is my input...

 

You absolutely need to file a response.  The date they put on the pleadings are irrelevant.  When your wife was served, the process server had to file a certificate of service with the court.  This will have the correct date of service on it and that date starts the clock for when your responses are due.

 

Do not respond as the husband.  At this point they do not know for sure that your wife is married (thus the "John Doe").  Make them work to discover the facts.

 

Current AZ state law was amended in 2011 to set the SOL on credit card debts at 6 years. However, there is case law that recognizes a 3-year statute of limitation on credit card debts prior to this amendment and the alleged contract was created (and defaulted, for that matter) under the 3-year statute of limitation.  When you file your answer, be sure to cite the "Statute of limitation" in your affirmative defenses and with your answer, file a Motion to Dismiss based on the expired statute of limitation, citing DDS Financial Group, LTD v. Deborah Walrod (Ariz. App. 2009) and LVNV Funding v. Leslie Thompson (Ariz. App. 2008) as your legal authorities.  Depending on the judge, your might get this thing kicked right out of the gate.

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@ (Harry and admin),

Thank you very much for the very quick response, I will get started with the answer today.

 

Thank you for your time.

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How does midland funding find these.

Let them try and bring someone from the original creditor to authenticate the records.

Also has arbitration with NAF.

 

 

Wilmington, DE, November 16, 2012 – First Bank of Delaware (the "Bank) (OTCBB: FBOD) today announced the closing of the Purchase and Assumption Agreement, as amended (the "Agreement"), dated as of April 27, 2012, between the Bank and The Bryn Mawr Trust Company ("Bryn Mawr"). Pursuant to the Agreement, Bryn Mawr paid the Bank $8.7 million in cash in exchange for the purchase of certain of the Bank’s loans and other assets, including the lease for the Bank’s branch located at Brandywine Commons, 1000 Rocky Run Parkway, Wilmington Delaware and the assumption of certain deposit liabilities of the Bank.

The Bank also entered into a settlement regarding government claims by agreeing to pay $15 million in civil money penalties and $500,000 for restitution that will satisfy the outstanding claims of the United States Attorney’s Office for the Eastern District of Pennsylvania, the Treasury Department and the Federal Deposit Insurance Corporation ("FDIC").

Immediately after the sale to Bryn Mawr the Bank was dissolved and its assets and liabilities were transferred to a liquidating trust in accordance with the plans approved by the Bank’s stockholders on October 23, 2012. In connection with the dissolution of the Bank and the transfer of assets and liabilities to the liquidating trust, all outstanding shares of the Bank's common stock are cancelled and each stockholder of the Bank is the holder of one unit of beneficial interest in the trust for each share of Bank common stock held of record by such stockholder. Stockholders of the Bank are not required to take any action to receive liquidating trust units.

Additionally, the Bank today filed a Form 15 with the FDIC to terminate the registration of its common stock and will cease filing reports with the FDIC.

Forward Looking Statements

Except for historical information, all other information in this filing consists of forward-looking statements. These forward-looking statements involve a number of risks,

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the scope or intent of any portion of the Agreement

Governing Law This Agreement and your Account, and any claim, dispute

or controversy (whether in contract, tort, or otherwise) at any time arising

from or relating to your Account~ this Agreement or any transferred

balances, are governed by and construed in accordance with applicable

federal law and, to the extent not preempted by federal law, the laws of

_Delaware (without regard to internal principles DL Conflict of laws}. The

legal Duty, enforceability and interpretation of this Agreement and the amounts

contracted for, charged and reserved under this Agreement will be

governed by such laws. This Agreement is entered into between you and

us in Delaware. We make decisions about granting credit to you from Delaware,

extend credit to you under this Agreement from Delaware, and accept your payments

in, Delaware.

 

Your defense you owe a thanks to midland funding for including the credit agreement that proves your case.

Good luck

 

The U.S. Supreme Court has stated "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979))

The Delaware statute of limitations is applicable.

1. The agreement establishes that the governing law of Delaware is to be used.

2. The agreement does not alter, modify or waive the Delaware statute of limitations.

3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. First Bank of Delaware exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account.
4. First Bank of Delaware is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”.
5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action.

6. The plaintiff’s cause of action would be barred in Delaware.

7. Accordingly, the plaintiff’s cause of action is barred in Arizona by Arizona statute of limitations.

(Action barred in another state barred in Arizona under Az rule 12-506.) A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.  

 

12-506. Action barred by foreign statute of limitation, bankruptcy or insolvency

A. No action shall be maintained against a person removing to this state from another state or foreign country to recover upon an action which was barred by the law of limitations of the state or country from which he migrated.

B. No action shall be brought to recover money from an immigrant who was released from its payment by the bankruptcy or insolvency laws of the state or country from which he migrated.

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I was afraid of the answer part but easy. Write your defenses down. You are so good with your defense out of SOL. And the court gives you the form. I filled it out down there and they make a copy for you to send to the atty.  Always send everythin ccmrr  and when the green card comes back i wrote what it was for and attached the P.O receipt . You want to get all your costs back.

The dates are different because anything they mail has 5 days attached.  I would get your answer in asap, Glad you found this forum

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Sorry forgot something.  Az is community property so if they listed you both on the complaint you both have to sign the answer.  Cost me another trip to court the next day to file an amended answer and mail again.  So either sign for both or fill the form out online and print out. But if both on complaint both have to sign.

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@hot in az, thank you for your advise and I will keep all records in order and send all ccmrr, I wasn't sure about signing until I downloaded there packet and in there it stated about being married and I had to sign also.

I am working on an answer and have been reading everything I can to make sure I do it correctly.

So far I have been given (from here) some very good advise on how to proceed, I am very happy I found this forum as it has some very smart people here and I appreciate all the information and advice given.

 

Thank you for your time.

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Yes , The answer is relatively the easy part. While you are down filing it make sure you get some motion forms from the court.   Looks like they said Bryn Muur  Trust acquired BOD Nov 16, 2012.

  I would put in your answer as I did . I have never done business with (Plaintiff's name). Therefore I owe the plaintiff. $0.00.

Also I said The Plaintiff lacks standing to sue the Defendant .  Also check with a lawyer here to see if you have and FDCPA violation for them bringing suit out of SOL?  And if you should use that in your answer. I think I would. 

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Here is my input...

 

You absolutely need to file a response.  The date they put on the pleadings are irrelevant.  When your wife was served, the process server had to file a certificate of service with the court.  This will have the correct date of service on it and that date starts the clock for when your responses are due.

 

Do not respond as the husband.  At this point they do not know for sure that your wife is married (thus the "John Doe").  Make them work to discover the facts.

 

Current AZ state law was amended in 2010 to set the SOL on credit card debts at 6 years. However, there is case law that recognizes a 3-year statute of limitation on credit card debts prior to this amendment and the alleged contract was created (and defaulted, for that matter) under the 3-year statute of limitation.  When you file your answer, be sure to cite the "Statute of limitation" in your affirmative defenses and with your answer, file a Motion to Dismiss based on the expired statute of limitation, citing DDS Financial Group, LTD v. Deborah Walrod (Ariz. App. 2009) and LVNV Funding v. Leslie Thompson (Ariz. App. 2008) as your legal authorities.  Depending on the judge, your might get this thing kicked right out of the gate.

I like this approach, a swift kick in the junk to knock them off balance and put a big issue right out of the gate. as for the OP standing in for their wife-that is a nogo sorry. She can come on here and learn but she has to go to court for hearings and ifshe is not up to speed the court will roll all over her. She can learn from here also.

 

So following the great advice of Harry Seaward would be best. There are a lot of Maricopa Justice court winners here. So make sure you read the new JCRCP(Justice Court Rules of Procedure) and get up to speed and if you have any question post it we will answer.

 

@Harry Seaward Excellent post

@admin This is probably sticky worthy

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Was the person they served papers on at your home above the age of 18? I'm not clear on that from the posts so far.

The advice given here is excellent. I speculate that Midland will have nothing close to the amount of documentation they need to prove their case against you, even assuming they don't get tossed out on the SOL defense.

Be sure to demand strict proof of your last payment date. In the absence of your own documentation, the burden is on them to prove you made a payment as of that 2008 date and not some earlier date.

Their affidavit is a pile of junk. It shocks me (though I guess it shouldn't) that law firms continue to use these shoddy, inadmissible pieces of crap to prosecute collection actions. Study, digest and learn how the hearsay rule and the business records exception work. My favorite way of doing that is to study this case:

http://statecasefiles.justia.com/documents/arizona/court-of-appeals-division-one-unpublished/1-ca-cv-11-0679-0.pdf?ts=1351747709

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After reading all the excellent advise I have what I hope is a good start for an answer, I have attached it so if possible maybe someone can give me some advice on it, if I should change it or add to it or if I did it correctly?

I was not sure if I had to add each of the plaintiffs’ attorneys’ names or how to put in this information.

If I am on the summons as John Doe Husband do I have to give them my information since it is a community state?

If they are suing both of us because it is a community state do I have answer for each? We did get two summonses but on each I am listed as John Doe and my last name.

Any advise is greatly appreciated.

Thank you. 

 

CV_Answer_packet 2.pdf

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@UCL Thank you for your advise I read your attachment very good information.

 

Was the person they served papers on at your home above the age of 18?  Yes she was.

 

Does all the info they put on the summons have to be correct? I only asked because the POE of my wife they added to the summons is not even close. I would have thought they would have this correct since they did a hard credit report on her.(The law firm not Midland)

 

Thank you for your time.

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Well talked to a Lawyer today just as a backup to just in case.

750.00 + filing fee = 815.00, not sure if I should just go with a Lawyer over worrying about my wife being able to present a good augment.(if it was just me no problem)

He told me I might be better off making a deal because of the amount( I expected this answer), I see his point he also said that trying for SOL can be difficult but paper trail was always an option to.

Not sure what to do yet for this case. If I knew for sure a Lawyer would win I would go for it right now, but if I lose I pay twice.

Thanks for all the good advice.

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I not going to try and settle, I would rather pay an Attorney to defend this then give any money to a JDB. I just need one I know has won against Midland then I would feel better about the odds.

If I file an answer can I still hire an Attorney if needed? Or do I have to see it all the way through once I file the answer?

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you can hire an attorney at any stage of the suit.  But I think we can help you fight better than an attorney most the time, they don't have the personal investment that we all do.

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