ratlady

Being Sued By Midland in Ohio: Please Help!

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I will start from the beginning, but what I really need help with is strategy and Adm, Interog, and Document request information in Ohio.

 

1. Who is the named plaintiff in the suit?

Midland Funding DE LLC


2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Westlake, OH lawyer

3. How much are you being sued for?

$3,5XX.XX

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

Home Depot (accrording to the complaint)

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

Served


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

Signed for mail

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

Yes

Process Service Requirements by State - Summons Complaint

Summons and Complain


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

None, nada, ziltch

9. What state and county do you live in?

Erie County, Ohio

Complaint states Huron County (jurisdiction and venue as affirmative defences on Answer)

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

I have no idea. I don't even know if this is mine. My husband retired in 2006, because of health (memory problems) and we paid off all debts that year. He says (hearsay big time, because I can't trust his) that memory) that "we signed up for the CC when Home Depot first opened." He might be right. I vaguely remember something about a discount for applying for a card when we replaced some carpeting. I DO NOT remember ever using a Home Depot CC

11. What is the SOL on the debt?

See above

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).

A. Served w/attached cc statement

B. My motion for a more definitive statement

C. Midland opposition to motion (lawyer sent me a bill of sale from OC to Midland dated a year before the billing statement sent with the Complaint)

D. Pre-hearing -- judge asked for more pleadings on motion. Asked, "Did they send you anything?" I answered, "no. Nothing that shows that this is my debt, or that I owe Midland anything." He asked, "is there anything with a signature?" I said, "nothing with my signature."

Judge had a discussion with the local lawyer that showed up (not the named lawyer; surprised to see me) about time needed for disposition. Result was 45 days for disposition, discovery to be complete and all documents and witnesses to be declared no later that 15 days before court date. Trial set for Halloween.

E. Filed Answer

F. Lawyer filed motion for more time to file SJ.

G. Judge: No

H. I received some documents: Plaintiffs Combined Interog, request or admissions and request for production of documents  This is what I need help with. It is convoluted.

 

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

No, and when I tried to get a free credit report the website is down. Weird, because I refinanced my house in July without any problem.

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. I didn't get anything from them, MCM, until July. The complaint was filed a month earlier.

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.

They received an email from me today demanding an electronic copy of the request (Ohio law). I have "twenty-eight (28) days after you receive them." This was filed with court. Do I have 28 days from they day that they sent this, the day that I received this, or the day that they get an electronic copy of this to me?

 

16.We need to know what the "charges" are. Please post what they are claiming.

Should see something like 

Common counts, account stated, breach of contract, open book, account, unjust enrichment.

Again, sort of convoluted. I read it as account stated.

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

No. Summons, Complaint, cc statement and cc page 2 of 4 of something that looks like what you would see on the back side of a cc statement, but not legible (the print date at the bottom is Dec. 22, 2011).

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

Yes, Need help

 

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

Exhibit A is a cc statement

2 other document sent with their Motion Opposed to Definitive Statement: a computer read out (it has a phone number that is not mine), Bill of Sale signed by a cc employee (date is earlier that should be, sold the account before default)

 

Comments? Need more information? How should I approach this?

 

Thank you. This site has gotten me this far. I have not yet figured out how to send my own requests, so any suggestions would be helpful.

 

 

 

 

 

 

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If you refinanced in July whomever did the refi would have run your credit. See if they can send you a copy of it. Did they send you any billing statements with purchases or payments?? It's possible when you opened the acct to get the carpet discount someone could have hacked your number and used it.

I would find out first if this is even your account, especially since the address and phone number is wrong.  The best way to do that is to review your credit bureaus

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http://www.ohiobusinesslitigationblog.com/2010/10/defense-to-credit-card-collection.html

 

Some defenses to credit card lawsuits in Ohio. This was written in 2010, so you may want to see if the cases cited are still good law.

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If Midland sent me a Bill of Sale attached to an Opposition to Motion, is it a part of the file/law suite? It was not marked or described as an exhibit. If not, can I make it a part of the record?

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They plan on introducing it as evidence, don't you worry. :)

Post what they sent you, admissions, Rogs, and the document requests, we will show you how to answer them.

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http://www.supremeco...ilProcedure.pdf  Read thru this

 

Have you answered Midlands complaint?

If not you have a time limit to answer or you lose by default.

And always remember don't talk to the plaintiff except in court.

Below is an example of how to send discovery to the plaintiff.

Study the rules of civil procedure and the rules of the court.

Got questions post them up.

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Now you can send discovery

Defendant MY NAME HERE requests that Plaintiff  Midland Funding DE LLC produce the following documents in connection with this case pursuant to Ohio Code of Civil Procedure § 26 and 34 of the OCRP.  If objection is made, please state the reason for the objection. If denying the matter, please set forth in detail the reasons why the answering party cannot produce such documentation.

DEFINITIONS

The following words, when used has the designated meaning:

(A) "Account" means the indebtedness alleged in your Complaint.

( B ) "Original Creditor" is the Person with whom the Account was originally created for Defendant.
 

Please produce:

 

1)  The original signed application establishing the account

 

2)  Charge slips bearing defendant's signature which establish use of the account

 

3)  The original written agreement in which defendant allegedly assented to the terms of the account

 

4)  A complete history of the account from day one, establishing the legitimacy of the balance sought

 

5)  Any document setting forth the choice of law provision

 

6)  Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default
 

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes of the choice of law provision it seeks to enforce.

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial.

10. Proof of mailing of monthly statements to defendant.

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."


13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow or media document(s) governing this transaction.

respectfully submitted,

 

Dated this 16th day of September, 2013

 

Certificate of Service
On September 16, 2013, I my name caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

Law firm name and address here
By Certified U.S. Mail, Return Receipt Requested

my name

my address

my phone

my email

defendant signed name

 

 

 

 

 

 

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I have done all of my banking online since around 2005. I don't open junk mail. Just toss it. The only bills that change, and therefore I open their mail, come from utilities. I lucked out and opened an insurance mailing and found a two month old over payment check. Would an original credit card company have my domain or email address? It would make more sense for me to ask for proof of electronic documents.

 

@Computer geeks (I mean this as an endearment, not negative connotation): What would I ask for and how should I word the discovery?

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I emailed the Plaintiff for an electronic copy of their Discovery and have not heard from them. Their filed service stated that if unanswered all admissions would be excepted as true. I'm thinking that I need to mail a copy of my email and file it with the court as well. Any thoughts?

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Dumb questions that pop into my head continue as I read through the discovery questions:

 

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes of the choice of law provision it seeks to enforce.

 

What am I looking for with this request?

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

OK, but I wouldn't have gotten any phone calls. According to the print out sent they do not have my phone number.

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial.

I bank online. What do I ask for? This is a good question in that they will not have it.

10. Proof of mailing of monthly statements to defendant.

Won't matter. I would not have opened anything from Home Depot thinking it was junk.

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

Defendant--me. I don't understand

 

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They filed service stated that if unanswered all admissions would be excepted as true.

 

Did they send you admissions and you did not answer them?

If you don't answer the admissions the uncontested facts will be deemed admitted and you will lose.

 

The plaintiff will then file for summary judgment and may ask for sanctions.

 

The discovery requests are directed to the plaintiff not to you.

 

The discovery requests are the basic things they should have to prove their case and if they don't answer you would file a motion to compel or a motion in limine.

 

RULES OF CIVIL PROCEDURE - Ohio Supreme Court  You need to study the rules of civil procedure and rules of the court.http://www.supremecourt.ohio.gov/LegalResources/Rules/

 

 

 

 

 

.

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Midland lawyer has now filed a motion for continuance. I'm thinking that I should file an opposition to the motion. Can I get some help with this. The judge has already denied a motion for more time to file for disposition.

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Midland filed motion to dismiss today.

 

 

Congrats!  Good work!  Stay around CIC for a while.  There are other Ohioans with cases pending who could benefit from your experience.

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The drama continues....

 

After the dismissal Midland filed a second complaint in another court. I answered. Again sent for documents in Discovery. Midland filed for SJ and the court ruled against. Then they filed a motion for SJ Instantainer. Again denied. At trial Midland lawyer did not show, and sent a rent-a-lawyer for "for a Summary Judgement motion."  Of course the poor guy was embarrassed to learn that both had already been ruled on and wanted to call the midland lawyer. Judge asked why? Trial is right now, so what good would that do.

 

I heard the word continuance in a discussion with his clerk who stood behind him. I objected and moved for a dismissal. The judge sort of cocked his head and looked over his glasses at me like he just noticed me sitting there. I told him that I had already gone through this twice with these people (wish I had been eloquent). He asked this case? I told him yes. Same complaint. Same lawyer. Just different court.

 

He looked stunned while I was having a silent heart attack. Oh ****! Oh ****! Oh ****! was reverberating in my brain when he dismissed. I just didn't hear if he said with or without prejudice with all the yelling going on in my head.

 

Tomorrow I file with an Ohio lawyer for FDCPA violations. Filed in wrong venue, harassing phone calls (2-5 a day), and something else that I didn't quite understand. 

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The motion came in the mail today, so now I can concentrate on making Midland pay.

 

Defendant moved for dismissal. The court is moved to dismiss with prejudice.

 

I can't take all the credit for this win. So many on the website helped whether you knew it or not. I believe that the reason Midland filed the first complaint in an improper venue was to stay out of the Erie County Municipal court because of the Brent case.

http://www.ca6.uscourts.gov/opinions.pdf/13a0050p-06.pdf

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@ratlady

 

Congratulations!  :-)

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