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Getting sued by Midland in Oregon


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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.)

Johnson Mark LLC

 

3. How much are you being sued for?

$2386.37 plus 9% interest and legal fees

 

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

Dell Financial Services (it looks like the actual company that did the financing was CITI Bank - this is mentioned as the Original Creditor below, and I verified this from my own records)

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

Served papers.

 

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

In person by someone wearing a Fedex uniform. They said they had a package, but then tore off the top page of the papers and handed the rest to me. The packet consists of a summons and a complaint.

 

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

As far as I know.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They have sent me letters in the mail periodically offering to accept cash settlements. I received a letter stating they had retained the services of a lawyer a couple months or so ago, but I didn't take it seriously since I have had another JDB tell me they had a court case with a made-up case number that I called to verify and ceased contact with after learning this. Kinda assumed this would be something similar...

 

9. What state and county do you live in?

Washington County, Oregon

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

January 19, 2008

 

11. What is the SOL on the debt? To find out: 

6 years

 

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 assume just served? I'm not seeing any obvious lookup capability on the county website: http://courts.oregon.gov/Washington/Pages/index.aspx

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No. (I filed a complaint with the BBB because the oral agreement on the phone was for 0 interest for 12 months, got hit with 30% and never received a physical copy of anything until I called and corrected my mailing address. This, despite having received the items I ordered. Perhaps the Dell rep did this on purpose? Too late now...)

 

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.

 

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?

 

30 days from the date of service (7/13/13). No interrogatory. Full text of the complaint below:

 

1. Jurisdiction and venue are proper. Plaintiff is a lawfully organized business engaged in interstate commerce. Defendant resides in the county in which this action has been filed.

 

FIRST CLAIM FOR RELIEF

(Breach of Contract)

 

2. Defendant was indebted to CITIBANK, (herein after 'Original Creditor') for credit extended to Defendant. Under the terms of the agreement between the Original Creditor and Defendant, Defendant acquired merchandise, services, and/or cash advances through the credit provided by the Original Creditor in conjunction with the credit account ending in XXXXXXXXXXXXXXX6457. The Original Creditor performed its obligations to Defendant by providing the credit as agreed.

 

3. The Original Creditor mailed statements to Defendant, showing all charges, credits, payments, fees and finance charges incurred during each preceding month while Defendant credit account ("Account") was open. Defendant did not object or otherwise dispute said statements within the time prescribed by 15 U.S.C. § 1666. The Original Creditor and Defendant thereby established a stated balance of Defendant's Account.

 

4. Defendant agreed to make payments on the Account. Defendant breached the agreement with the Original Creditor by failing to make all payments as agreed. Such breach of agrement caused the Original Creditor to suffer damages in the amount of $2386.37 less any payment made. Upon default by Defendant, the Original Creditor requested full payment of the Account balance.

 

5. In accordance with ORCP 16, Plaintiff asserts the following alternative claims / counts for an award of attorney fees:

A. Under the Agreement, Defendants agreed to pay all attorney fees incurred in enforcing the Agreement.

B. In the event it is found that the Agreement did not contain a clause that authorizes or requires the award of attorney fees, Plaintiff is entitled to reasonable attorney fees under ORS 20.082, as applicable. Written demand for payment of the claim was made on the Defendants not less than 20 days before the commencement of the action.

 

6. As part of the Agreement, Defendant agreed to pay interest on the amounts borrowed. The applicable rate of interest is 9.00% based upon the agreement or as provided by ORS 82.010.

 

7. Plaintiff acquired the Account from the Original Creditor or its lawful successors-in-interest through a valid purchase and assignment. Under Oregon law, Plaintiff has full right to collect on the Account in accordance with all of the terms and conditions of the Agreement.

 

SECOND CLAIM FOR RELIEF

(Quantum Meruit)

 

8. IN THE ALTERNATIVE, Plaintiff pleads a claim of Quantum Meruit. Plaintiff incorporates into this claim paragraph 1. Principles of equity also require Defendant to pay for the benefit conferred on Defendant by the Original Creditor's extension of credit. Defendant was fully aware of the benefit received. Under the circumstances, it would be unjust to allow Defendant to retain this benefit without requiring Defendant to pay the value thereof.

WHEREFORE, Plaintiff prays for judgment against Defendant for the following amounts:

  1. The Account balance of $2386.37 less any payments made.
  2. Interest, both prejudgment and post judgment, at 9.00% per year until paid.
  3. Reasonable attorney fees and court costs.
  4. Any other relief the Court deems just and equitable.

 

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Zero. (is this unusual?)

 

17. Read this article:

Done.

 

 

 

So I guess I need to write a letter to respond to the claims, and I have 8 more business days in which to do so (I will be going out of state on the 9th until the 12th).

 

The summons says I need to give my motion or answer to the court clerk and it must have proof of service on Plaintiff. What constitutes proof of service for this? The receipt for sending by registered mail (or some other document that USPS will give me)? Do I have to physically go to the courthouse and give my answer to the court clerk, or can I mail that as well? Is it enough for the registered mail to be sent before the 30 days have elapsed, rather than the court needing to already have received it by then?

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You will file your answer with the court clerk at the courthouse and send a copy of your answer to the plaintiff.

CERTIFICATE OF SERVICE (looks like this)
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.
from: my name my address my phone sent on this date

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So I realized last night that the complaint I was served states "SUBJECT TO MANDATORY ARBITRATION". I'm not sure what this means for my case, but glancing around the forum suggests that I should avoid arbitration...

 

I found this, which says that the court will decide whether the case is "arbitration eligible" after I submit my answer: http://courts.oregon.gov/Washington/Services/Civil/pages/processes.aspx

 

Should I add anything to my answer to influence their decision? Or is it just plain up to them?

 

If the case goes to arbitration, I guess there's things I can do to refuse it and go back to the trial process? http://www.creditinfocenter.com/community/topic/227015-master-refusal-of-arbitration-thread/

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Okay, now I'm getting scared... This isn't contract-compelled arbitration, this is court arbitration.

 

http://www.oregonlaws.org/ors/36.400

 

http://www.debtorboards.com/index.php?topic=18469.0

 

http://www.creditinfocenter.com/community/topic/304420-oregon-arbitration-what-to-expect/

 

I'm guessing I still should submit the answer I have written from racecar's template? (should I post the results of that here?)

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Sorry to report that it's court-ordered arbitration here in Oregon.  It really doesn't change your defense or your answers, or how you proceed from there (Requests for Documents, motions, etc), it just means that you will be assigned an arbitrator who will be acting as the judge, at some point.  For me it took from the original summons on April 8, to early June, to have an arbitrator assigned, and the hearing is September 5, just to get an idea of the timeline.  Yours might be different.

 

So, answer just like you would have done anyway.

 

 

 

Huey Pilot will probably chime in to tell you you will lose in arbitration, but then you can file for a Trial de Novo and maybe have a fighting chance.  I spoke to a consumer lawyer last week here in Hillsboro who called the Oregon arbitration "lawless".

 

So, that's the dose of reality, but it isn't a death sentence.  It just adds an extra hurdle and seems unfair.

 

For my part, my JDB filed a Motion for Summary Judgment in early July and we have the hearing for that, with the arbitrator, next Wednesday.  He's a civil rights lawyer (they're just lawyers trying to make extra cash, hence maybe the lawless feeling), so we'll see whose rights he feels like standing up for!

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Yes! The Oregon Arbitration Process is called Court Adjoined Arbitration meaning that all our districts are limited by population to the number of Judges that can be elected. Oregon is not a largely populated state. With the overwhelming number of Civil Court cases our legislators have authorized the annexation of appointed attorneys and previous Judges to handle the overload. Both you and the Plaintiff's attorney will pay the arbitrator about $300.00 to handle your case and hand your posterior to you. This apparently is the only revenue stream these appointed attorneys have and they don't want to loose it so there awards are most always creditor friendly unless you have a SOL case. 

 

Treat Oregon Arbitration as a method to get all your pleadings polished up and perfected and don't take it very serious because it's just a dress rehearsal for the real thing when you enter your automatic appeal. You will be assigned an arbitrator after about 60 to 90 days so use the time to file your Answer and Requests for Discovery Documents or any pre-trial motions with the Court Clerk.

 

The most important thing is to initiate your Defense and file all your documents and fight back. It's a whole new ball game after arbitration and you can and most likely will win if you prepare, study, complete and file all your documents. 95% of the people being sued do nothing in Oregon so don't be one of them.  Think of Arbitration as the gas you have to put into your boat motor prior to enjoying a good day of fishing. You don't catch any fish unless you prepare, get your gear in order, and get to your favorite fishing spot out on the lake. Just takes the effort and be there before the other guys. Make it happen and if you don't have the financial resources file the waiver. These cases are winnable in de novo appeal. 

 

HP

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I should probably mention that I have quite bad anxiety at times... I am pretty much unable to reason anything out in a courtroom, let alone defend myself. I have first-hand experience with this in unrelated proceedings - thankfully, I later got a lawyer and things turned out okay. I don't see that as an option in this case because it would be cheaper to settle.

 

Does this affect my chances of success? Before I realized that this type of "arbitration" was mandatory, I thought I had a decent chance of this thing being resolved without ever having a trial.

 

Basically, I'm trying to weigh my options. I absolutely do not want to start a fight and then lose, because then--correct me if I'm wrong--I'd have to pay for everything: the full amount they want, the interest (which would really hurt because this debt is about 5.5 years old - my math suggests an increase of 56% over the base amount of $2386), their lawyer, and all the court fees from both sides. All these additions would more than double the total amount I allegedly owe.

 

So my thought is, it's probably better to offer a settlement now, in the neighborhood of $800-1k (maybe more or less). I figure they might go for it, since it's likely more than they've spent on me so far, and if they go for it, it limits my (and their) risk and lets me get back to doing my thing without worrying about this case hanging over my head.

 

I don't know what's actually possible in terms of settlement though, or what the procedure for it would be. Obviously I'd want to go about it in a way that the court proceedings and collection attempts will stop and the debt will be marked as settled in my credit history.

 

Thoughts?

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So it looks like I need to file my answer regardless of what I want to do from here. And it does look like I can win... I'm just really scared of this whole thing! I feel like it's playing with fire. I'd really like to hear some thoughts on my previous post.

 

Anyway, I was examining the few records I have of my transactions with Dell Financial Services, and noticed a small detail: the financing was through CIT Bank, not Citibank. As far as I can tell, the two are different. (Wikipedia even has a specific disambiguation statement referencing CIT Bank at the top of the Citibank page.) Despite this, the plaintiff listed Citibank in their complaint. I don't think I need to state anything about this in my answer though, since I am denying their allegations as it is.

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  • 5 weeks later...

Just got my case dismissed against Midland in Washington county Oregon.

Under the UCC code the SOL is 4 years, I would expect since it is dell it is 4 years and not 6.  Reach out to an attorney, I did and it didn't cost me a dime!

 

We are now in the process of sueing Midland...........

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Just got my case dismissed against Midland in Washington county Oregon.

Under the UCC code the SOL is 4 years, I would expect since it is dell it is 4 years and not 6.  Reach out to an attorney, I did and it didn't cost me a dime!

 

We are now in the process of suing Midland...........

 

Most of us Oregonians would be interested in how this technique applied. It would be appreciated if you could share. Just last year new case law was defeated that would allow the SOL borrowing statues of other states to apply.  

 

It's a well known fact that many of these Junk Debt Buyers, especially Asset Acceptance, waits until the statute almost runs out, accumulating maximum interest, prior to initiating a lawsuit. If there is a UCC four year statute this would help numerous debtors fighting credit card law suits.

 

HP

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  • 2 weeks later...

I have received two documents from the plaintiff in a regular envelope, quoted below. I must file my responses no later than this Wednesday or Thursday. Wednesday if I go by the postmarked date, or Thursday if I go by the date I received the documents. I'm assuming Wednesday. This doesn't leave me with much time in terms of speaking with a lawyer or contacting any businesses about my alleged account.

 

PLAINTIFF'S FIRST SET OF REQUESTS FOR ADMISSIONS
 
DEFINED TERMS: The following terms in bold font carry specific meanings that will be used throughout this document.
 
You: (me, my agents/representatives/etc)
 
Original Creditor: CITIBANK
 
Account: refers to the credit account you had with the Original Creditor (if different from Plaintiff) for goods, services, or money. The Account is the subject of this action.
    Attorney's Acct. Ref. No.   ######
    Plaintiff's Acct. Ref. No.   XXXXXXXXXXXXXXX####

 

Account Balance: $3,945.11
  Plaintiff's Account Balance: $2,386.37
  Interest (12/15/2008 to 8/16/13): $1,003.25
  Attorney's fees: $350.49
  Accrued costs to date: $205.00
  LESS amounts paid by defendant: $0.00
 
  Total: $3,945.11
 
Action: refers to this pending civil action against you for recovery of the Account Balance.
 
1. Admit that you had a credit account with CITIBANK.
ADMIT OR DENY:
 
2. Admit that you received a copy of the terms for the credit account.
ADMIT OR DENY:
 
3. Admit that under the terms of the Account, you agreed to pay for the credit balance on the Account.
ADMIT OR DENY:
 
4. Admit that you used the Account to obtain goods, services, or money.
ADMIT OR DENY:
 
5. Admit that you received periodic statements from CITIBANK regarding your account.
ADMIT OR DENY:
 
6. Admit that you did not object in writing to any charges or fees on the Account within 60 days of the receipt of the periodic statement reflecting an allegedly disputed charge/fee.
ADMIT OR DENY:
 
7. Admit that you stopped making payments on the account.
ADMIT OR DENY:
 
8. Admit that you were notified that your account was in default.
ADMIT OR DENY:
 
9. Admit that you are indebted to the Plaintiff, the lawful assignee of CITIBANK, for the full current Account Balance stated above.
ADMIT OR DENY:
 
10. Admit that you have no evidence to disprove or defend against Plaintiff's claims in the action.
ADMIT OR DENY:
 
11. Admit that under the terms of your agreement with the CITIBANK, you agreed to pay interest at the rate stated in the Complaint on the principle balance of your account, plus any additional court costs and attorney fees incurred to enforce the agreement.
ADMIT OR DENY:

 

 

PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

 
DEFINED TERMS: The following terms in bold font carry specific meanings that will be used throughout this document.
 
You: (me, my agents/representatives/etc)
 
Original Creditor: CITIBANK
 
Account: refers to the credit account you had with the Original Creditor (if different from Plaintiff) for goods, services, or money. The Account is the subject of this action.
    Attorney's Acct. Ref. No.   ######
    Plaintiff's Acct. Ref. No.   ###################

 

Account Balance: $3,945.11
  Plaintiff's Account Balance: $2,386.37
  Interest (12/15/2008 to 8/16/13): $1,003.25
  Attorney's fees: $350.49
  Accrued costs to date: $205.00
  LESS amounts paid by defendant: $0.00
 
  Total: $3,945.11
 
Action: refers to this pending civil action against you for recovery of the Account Balance.
 
1. Any documents that relate or refer to the Plaintiff's claims or your defenses in this Action.
 
2. Any agreements, applications, statements, receipts, proofs of payment or other documents related to the Account.
 
3. Any correspondence with CITIBANK or the Plaintiff regarding the Account or this Action.
 
4. Any correspondence with anyone related to this account, including without limitation, any witnesses, professionals, and experts (whether they have been retained to testify or not).
 
5. Any documents you may present as evidence or exhibits in a trial of this Action.
 
6. Any reports or exhibits prepared by any expert or lay witnesses pertaining to this Action.

 

 

I don't know what approach I should take to my answers. I have never had an account with CITIBANK. I had an account through Dell Financial Services which was funded by CIT Bank, a wholly-owned subsidiary of CIT Group. Should I deny all allegations on that basis? Should I offer a correction on the basis that the account number matches other documents that I have? I'm thinking I shouldn't offer anything of the sort, as the burden of proof is on them, unless it will perhaps make things easier for me in some way?

 

I should note that the only documentation I have about the accounts referenced is several PDF files. I don't know if these are admissible as evidence. Reading the definition of documents in the first page of the document I received, I think they are? If they are, that will be a great help, because it shows things like the account being backed by CIT Bank rather than Citibank, as well as the credit being in connection with the sale of goods (which is important to the UCC statute of limitations defense). It also shows the interest rate being 29.24% rather than 9%. Not sure how much this will help or hurt :razz:

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Right, so I finally realized that ORCP is the set of rules that I must follow in my case. It appears, then, that I have until the end of Monday to submit my responses per ORCP 10 A & C.

 

If I'm interpreting ORCP 12 B, "Disregard of error or defect not affecting substantial right" correctly, it appears that the plaintiffs' having listed the Original Creditor incorrectly doesn't help me at all.

 

Should I respond to every interrogatory with "Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation.", or should I admit to the interrogatories referring to myself and the OC and deny any referring to the plaintiff? I think I can figure this one out by doing some more reading around on this site... I've read "deny everything" more than once, so that's probably a good start :p

 

How would I argue that my case falls under the UCC statute of limitations? (ihatejdb, where did you go?!) I spoke with a lawyer that I was referred to via the OSB referral service, but he was--or at least he came across to me as--predatory and unprofessional, and sounded like he had zero experience with any debt smaller than a house. Guess I need to do more head hunting.

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  • 4 weeks later...

I'm curious to response #10...i would love to get information on the case you won against Midland...we are also being sued by Midland for a 6 year old Dell account and we have fought hard but are at our last leg they got a summary judgment but we filed a motion to vacate when we realized they were past the ucc sol and then we filed a motion to dismiss but they are still fighting trying to say we should have raised this issued with the original answer, etc...can you please help we have only a couple days to respond 

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Just got my case dismissed against Midland in Washington county Oregon.

Under the UCC code the SOL is 4 years, I would expect since it is dell it is 4 years and not 6.  Reach out to an attorney, I did and it didn't cost me a dime!

 

We are now in the process of sueing Midland...........

I'm curious...i would love to get information on the case you won against Midland...we are also being sued by Midland for a 6 year old Dell account and we have fought hard but are at our last leg they got a Summary Judgment based on oral procedure and not facts, but we filed a Motion to Vacate when we realized they were past the UCC SOL and then we filed a Motion to Dismiss but they are still fighting trying to say we should have raised this issued with the original answer, etc...can you please help we have only a couple days to respond 

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