MrBubby

Sued by Jarold Kaplan - Midland Funding - Dell

Recommended Posts

Please help! I am being sued by Midland Funding via Jerold Kaplan law offices. I have attached the 16 questions. At this time I am unsure of how to proceed. Any advice would be greatly appreciated.

 

Thank you

 

1. Who is the named plaintiff in the suit? Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Jerold Kaplan Law Office, P.C.

3. How much are you being sued for? $1,000 + pocket change

4. Who is the original creditor? (if not the Plaintiff) Webbank / Dell

5. How do you know you are being sued? (You were served, right?)  I was served

6. How were you served? (Mail, In person, Notice on door) In person

7. Was the service legal as required by your state? yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I was contacted by Jerold Kaplan law offices around early 2003 at work, so I called them back. I did not confirm or deny, I only requested them to contact me on my cell instead of my work number and to send me validation of the debt. The only thing they sent was a generic looking print out of the merchandise I supposedly ordered.

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

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) On the document given to me when I was served it says 2009, however, my credit report shows the following regarding the same account under Midland Funding as of September 2012 .....
 

11. What is the SOL on the debt? 6 Years in Arizona

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
I was served two weeks ago. Based on previous information on this forum, I am waiting until around 18 days to file my response.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
 
Yes, I contacted all credit bureaus and have disputed the debt with minimal response that I am aware of. I contacted Jerold Kaplan law office about 4 days after being served and requested any documents they have to be mailed to me. They put me on hold for quite a while and said "it is tough to get documents and we can only get copies of what we have once. We will contact the creditor to attempt to obtain them again. However, since they were already mailed we are unsure if we can send them out or have access to them anymore. Call back in a few days if you haven't received them by mail. " So far, I haven't received anything in the mail.

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.
I requested one over the phone and it was a printout of a computer from Dell. I don't recall it having anything on it showing the debt is valid or belonging to me.

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?
 
20 days. They are claiming the balance of 1,000 + change with interest at 4.25%  plus attorney fees not less than 275.53 . 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 
They only included the Dell Account Credit Agreement printed off of their website. It is not signed or in any way related to myself. It appears to just be a generic credit agreement. However, it does allow for arbitration. They did not provide any other documents.

Share this post


Link to post
Share on other sites

Will do beergoggles, Thank you! It seems like such a small amount... Do you think a,mediation request is the way to go based on my amount?

Share this post


Link to post
Share on other sites

you will have a mediation anyways.  Now this is just my personal idea here.  if you could get them to settle for 50% I would jump on it since it is such a small amount and how stessful this whole thing can be,.

Share this post


Link to post
Share on other sites

Welcome back Beergoggles you never settled you got judgments against your debtbuyers he should do no less.

But going to court can be stressful. I would offer 300.00 Dollars just to end it(not admitting the debt is yours) that way everybody saves time and money.

Share this post


Link to post
Share on other sites

@racecar @Beergoggles Thank you both for your input. I agree, $300 would be worth it just so I don't have to deal with it. I actually missed a call from Jarold Kaplan's office this evening, when I called back their office was closed. Two things I wondered appear strange to me in regards to this. 1st the "legal specialist" Jessica Vogt who signed the affidavit in the claim stated that she has "access to pertinent account records for Midland Credit Management MCM who is a servicer on behalf of the platiff (Midland Funding). However after pulling up the business address listed for her on the affidavit, it is for Encore Capital. Am I correct at assuming that Encore is part of MCM which is also related to Midland Funding?  Second, the date on my credit report for Midland Funding is different from the lawsuit. Also most recently, they reported on my credit report that this item has a $0 balance . Does that make difference?

Thank you both VERY much!

Share this post


Link to post
Share on other sites

Also in the CC agreement, The only doument I was provided with states the Applicable law is governed by the state of Utah. Does that impact my response at all?

Share this post


Link to post
Share on other sites

Hi Bubby, DV should be by mail . If you are willing to go through this year process like I did for a MUCH larger amount that is great. But regardless get your answer filed straigtaway. There is no benefit in the answer stage to waiting . The court has the form and you deny everything but your name.  I used beergoggles answer. I have never done business with Midland Funding and owe them $0.00. Because of the low amt you do have a couple options. Fight them. Arbitration or try to settle for an amt you are comfortable with.

 

Hope this helps. Feel free to ask questions.

Share this post


Link to post
Share on other sites

Hello everyone,

I am doing as much searching as I can, however I can't find the best answer. While filing my response online to being served by a JDB, I find the question.

"Use this space to explain why you believe the plaintiffs should not be entitled to judgment:" MAX 10 lines. The state is AZ. The JDB is claiming breach of contract. Would it be best to just deny their claim... or should I use as much of the space as possible citing previous cases?

 

Thank you all!

Share this post


Link to post
Share on other sites

The answer is the simple part. You go to the court . They give you the form .

The first one says I admit/deny that the court has jurisdiction over this matter. I checked admit because I live in the county.

Next one  I admit the following protions of the plaintiffs complaint.

I crossed out admit and wrote DENY

 

Paragraphs !-10 of Plaintiff's complaint are all denied. (THey sent me 10) Check your complaint to see how many they have.

 

Next- The Plaintiff is not entitled to a judgement because:  (I wrote)

I have never heard of (your Plaintiff inserted here) or have had any contact with (yours again). I owe (yours) $0.00

Plaintiff is not a proper party to this action and is therefore barred from pursuing same.

 

 

That's it for the answer form . While you are there pick up a few motion forms from the clerk. Anyone can chime in on if they did this different but I stressed on this to and it is that simple.  I hand wrote it while I was at court. You pay your filing fee and off you go to step 2.

Share this post


Link to post
Share on other sites

I am in a similar situation in Cleveland, OH.  I already sent my answer to their suit and now they have sent me a Combined Interrogatories.  I am interested in seeing the responses to this thread so please keep it going.

Share this post


Link to post
Share on other sites

@TripleHex, will do! I am going to Fed-ex right now to print out my typed response, sending 2 copies to the court with my $65 fee PLUS mailing two to the attorney.

Don't forget to create your own thread with the questions like I did. I am not only using this site to provide myself with the knowledge and assistance I need, but also ... to hopefully provide assistance to other people in the future.

Share this post


Link to post
Share on other sites

since the COA occurred prior to the SOL change,  the 6 year SOL doesn't apply.

 

if the Dell account was secured by collateral ( the computer )  4 year SOL applies under the UCC for Secured transactions. 

 

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/47/02725.htm&Title=47&DocType=ARS

 

 

 

 if your debt was time barred ( 3 year SOL) before this date, you can still argue it is SOL.

Because they didn't change this statute.

12-505. Effect of statute changing limitation

A. An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.

 

AZ supreme court cite fore 12-505  http://www.supreme.state.az.us/opin/pdf2005/CV040033PR.pdf

 

 

 

Choice of law provisions was changed along with the 6 year SOL, but it doesn't apply either.

Share this post


Link to post
Share on other sites

I filed my response today. I mailed a copy to the attorney with signature on delivery required. I also mailed two copies to the courthouse with a check for $65. Today IS day 20. According to the court, if day 20 falls on a weekend, it must be filed by the following monday.

Share this post


Link to post
Share on other sites

@ping, I considered that, also in the credit "agreement" I was sent, (which they printed off Dell.com) it states Utah as the governing state with the option of JAMS. Would you suggest I file an updated response stating SOL limitations? I assumed since they're stating it began in 2009, that 3 years would have been in 2012, which would have placed it AFTER the court ruled on the SOL limitations to be changed to 6 years? Please advise. Also what I noticed, the credit agreement they submitted to the court has a headling at the top stating "Dell Reccomends Windows 7", funny thing is, Microfosft didn't produce windows 7 until 3 years after the fact. During the discovery period, should I look at bringing this up?

Thank you!

Share this post


Link to post
Share on other sites

@ping, I am going to read the second document very closely. It appears as though page 15 clearly states that previous SOL applies. "Ariz Civ. Code 1901 1974 "This provision neatly captured the general comon law rule; causes of action accruing before the effective date of the new statute were goverened the the statute of limitations in effect at the time of the accrual."

Share this post


Link to post
Share on other sites

Glad you got your answer off in time.  What is Utah's sol on debt?/  I would be going to the next step which is Discovery.  In Arizona you have to send the Plaintiff a Disclosure form on Pleading Paper within 40 days of sending your answer. Make sure you keep all your dates on a calendar so you don't miss anything.

You can also send them RFD and  RFA.  On page 4 of forum there are two people from AZ. ABCand 123 and Bravoflaco.

Share this post


Link to post
Share on other sites

Thank you for your post! I am just looking at the moment at different RRA's and RFD's to use as a sample. Since I work Monday through Friday 8:30-5 I was able to find online through the AZ courts pleading paper that I can use via a word document. http://www.azd.uscourts.gov/azd/courtinfo.nsf/0/19c15b1ef79c182007256e84008319d1

What did you submit on your disclosure form? Without any records of what they're claiming, I don't have anything to offer! Also ... I was just reading online that "If the Defendant is served within the state of Arizona, he has twenty days from the date he is served to file his answer with the court, along with his Certificate of Compulsory Arbitration: http://www.ehow.com/list_6680573_arizona-court-rules-civil-procedures.html#ixzz2bALQIW2M

Are you familiar with the Certificate of Compulsory Arbitration?

Share this post


Link to post
Share on other sites

For arbitration you would have to look at the cc agreement from the year that you opened the alleged acct. And check out Linda 7's posts on arbitration election.

 

My disclosure was this.

1. What are the facts supporting the claim?

My answer  The Defense of your name here  asserted in this action are grounded on the following fact, The Plaintiff lacks standing to sue the Defendant(s).

 

2. A desciption of the damages etc...

My answer    N/A

 

3. What law supports your claim?

I put N/A  but you can use Bennett v. Napalitano  and the case law numbers.I did not know about it then or I would have used that.

 

4. List of Witnesses . List the names, addresses and phone numbers  etc...

I listed one witness the affiant from Midland . They listed him too. No witness showed at trial (of course). In hindsite I would have listed the witness from OC claiming to have knowledge of the alleged account.

So you can list a witness or strike all their evidence in MIL.

Up to you.

 

5.List of Documents and Other Info.

 

I put Defendant's have no documents in their possession

 

That's about it but feel free to get any other feedback.  Time stamp at court and mail to atty CMRRR

Share this post


Link to post
Share on other sites

Most recent update; I called the court yesterday to verify they received my payment and my initial response letter. They searched for about 20 minutes... when they came back to the phone they said they received my response fee of $65 but couldn't find my response. I told them I mailed the response with the response fee in the same envelope. Well, apparently they received the check but misplaced my response lol. I am going to mail another copy tomorrow.

Share this post


Link to post
Share on other sites

THAT STINKS,  couldn't you just fax or send it Turbo AZ so they could time stamp it??/ Also make sure you get a reciept for your filing fee so when you win you can recover your costs.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.