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TexasAce

Sued by Midland Funding LLC - Texas

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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.)
Andrew Herreth
3. How much are you being sued for?
$5097.28
4. Who is the original creditor? (if not the Plaintiff)
Ge Money Bank
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)
In Person. Given to my father
7. Was the service legal as required by your state? 

As far as I can tell
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None that I'm aware of
9. What state and county do you live in?
Texas/Brazoria
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Not 100% sure
11. What is the SOL on the debt? To find out: 
4 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).
Suit Served. I searched online by case number and nothing came up.
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
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 have 14 Days

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

They sent a copy of the Charge off by Discover(Ge Money Bank). It has the first part of the account number blacked out and only shows the last 4 numbers. It has no last payment information.

 

Also I'm not sure if this is relevant but I'm a Junior and it doesn't say Junior anywhere on this piece of paper they sent.  

 

I know my next step is to file an answer with the court, but I'm wondering if I can get any tips on how it should be worded. Also should it be a flat denial or should I request documents from them as well.

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Get on here and read, gather all the knowledge you can to be better prepared. Also, consider using arbritration against them with JAMS. That will run them off most of the time. Read Linda7's thread on arb.

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So I have a hearing on Plaintiff's Motion for Default Judgment on Thursday. What should I expect from this? Looking back it seems I probably should have got a lawyer to help me out, but seeing as I didn't what could i expect from this type of hearing and how best can I prepare for it?

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Under Texas Rule of Civil Procedure 320, a court may set aside a judgment "for good cause." A defendant must file a motion for new trial within 30 days after the judgment was signed. Grounds for a motion for new trial include that the service of the suit, default hearing or trial was improper on the defendant or the defendant failed to make an appearance due to oversight or a mistake.
 

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Under Texas Rule of Civil Procedure 320, a court may set aside a judgment "for good cause." A defendant must file a motion for new trial within 30 days after the judgment was signed. Grounds for a motion for new trial include that the service of the suit, default hearing or trial was improper on the defendant or the defendant failed to make an appearance due to oversight or a mistake.
 

 

 

I haven't had a judgement against me. This is why I'm confused about why we are having a hearing. I understand that they could still admit a default judgement so is that basically what this type of hearing is?

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There is no reason for a "default hearing" unless a default judgment has already been awarded to the plaintiff.

Are you sure that you got your answer filed in time?

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There is no reason for a "default hearing" unless a default judgment has already been awarded to the plaintiff.

Are you sure that you got your answer filed in time? 

 

Absolutely positive. The paper i received says this

 

A hearing on Plaintiff's Motion for Default Judgment on the above case has been set on 19th day of December, 2013 at 11 a.m. in the court of ...

 

As Plaintiff, failure to appear for this court setting will result in dismissal of this case.

 

As Defendant, failure to appear for this court setting will result in a default judgment in favor of the plaintiff.

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Actually I worded that a bit wrong- The plaintiff can apply for a default judgment as soon as the day after the time runs out for the defendant to file an answer.  They will not actually be granted the default judgment until after the default hearing.

 

The sole purpose of a default hearing is for the defendant to explain and show cause as to why he or she did not respond to the lawsuit.  A default judgment is granted if the defendant does not show up for the default hearing.

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Actually I worded that a bit wrong- The plaintiff can apply for a default judgment as soon as the day after the time runs out for the defendant to file an answer.  They will not actually be granted the default judgment until after the default hearing.

 

The sole purpose of a default hearing is for the defendant to explain and show cause as to why he or she did not respond to the lawsuit.  A default judgment is granted if the defendant does not show up for the default hearing.

 

Hmmmm well this seems to be weird. I know for a fact I responded in time. What should I expect from this type of hearing? What should I be prepared to object to? Also its hard to tell, but it looks like the lawyer didn't show for his last case in my area so maybe he won't show for mine.

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 The plaintiff's attorney has apparently petitioned the court for a default judgment under the presumption that you failed to file your answer.      I'm not sure if he is required to be at the hearing since it is all about the defendant but if he needs to be there he most certainly will show up.  They are notorious for being no-shows at trial if they know they are going to lose but their bread and butter is default judgments so if he is the one who applied for it and is required to appear you can be sure that he or one of his cronies will appear. 

 

 What to expect is that for whatever reason the clerk may have misplaced your answer or something like that.  I would bring the court papers that I was served with that say the date it needed to be filed by and the file-stamped copy of the answer that I know I filed on time.  If you have these then you can't go wrong.     

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Also, any time they tell you that you don't have to be in court, that they will take care of matters such as. They will dismiss for whatever reason, make sure that your there till the end.

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When you say you filed your answer did you file it at the proper county courthouse with the court clerk and she stamped it and you brought copies for the court and two copies to send to the plaintiff that were stamped by the clerk.

 

If you have a stamped copy of your answer you filed with the court you should bring it to the court clerk so she can correct your filing.

 

In your answer did you deny all the allegations in the numbered paragraphs of plaintiffs complaint.

 
Every material allegation not specifically denied will be taken as true and you can lose by default that way.
 
I wonder if you did not deny some of the allegations.

 

I would be at the court house tomorrow asking the clerk if you can see your file.

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When you say you filed your answer did you file it at the proper county courthouse with the court clerk and she stamped it and you brought copies for the court and two copies to send to the plaintiff that were stamped by the clerk. If you have a stamped copy of your answer you filed with the court you should bring it to the court clerk so she can correct your filing. In your answer did you deny all the allegations in the numbered paragraphs of plaintiffs complaint. Every material allegation not specifically denied will be taken as true and you can lose by default that way. I wonder if you did not deny some of the allegations. I would be at the court house tomorrow asking the clerk if you can see your file.

Yes I have a stamped copy that I filed with the court and I did deny the allegations. I did not send a copy to the plaintiff. I thought it would be the court or plaintiffs duty to do that.

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Yes I have a stamped copy that I filed with the court and I did deny the allegations. I did not send a copy to the plaintiff. I thought it would be the court or plaintiffs duty to do that.

That may explain it then- since the attorney never received it he probably assumed you never answered at all just like over 95% of all credit card lawsuit defendants.  Anything and everything you file with the court must also be sent to the plaintiff's attorney.

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That may explain it then- since the attorney never received it he probably assumed you never answered at all just like over 95% of all credit card lawsuit defendants.  Anything and everything you file with the court must also be sent to the plaintiff's attorney.

So basically the court date is me showing that I did file an answer with the court and then we will move from there?

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 My guess is the plaintiff's attorney will be trying to convince the court to grant the default judgment on the grounds that you did not follow the rules and correct procedure.  If the attorney's office is close enough I would immediately hand deliver a copy of the file-stamped answer to them, if not then fax it to them as you don't have enough time for regular mail.  

 

It all depends on the judge now- you can ask him to forgive the mistake you made and hope he hates JDB's as much as we do but there is always the chance too that he and the attorney are good friends or he is the kind who frowns on pro se defendants.  You will either walk out of court with a second chance to see it through or with a default judgment rendered against you. 

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