Midland Funding LLC, Kristy Gabrielova, is Suing My Wife in Texas.

[lonestark]

I came home from a business trip and was greeted by my wife saying that she is being sued. She contacted Midland by phone and they sent her some sort of agreement to sign.

 

I told that wasn't the correct action to take. She had 14 days to respond to the Justice Court Citation. The court is closed tomorrow and Christmas so she needs to file a response on Thursday. So, this is my Christmas Eve and Day task.

 

Unfortunately, I am handling this now because she is scared and frustrated and washing her hands of the process. Thank you for your help.

 

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.)
    Kristy Gabrielova

3. How much are you being sued for?
    $4,000+ plus pre-judgment and post judgment interest at the legal highest rate, all suit costs and all other legal relief     need by the Plaintiff.

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

    Citibank NA (Home Depot)

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

    Yes.

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

    In person.

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

     As far as I can tell, 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?

    None.

9. What state and county do you live in?

     Texas, Montgomery County.

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

      03/13/2011

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

      4 years?

Statute of Limitations on Debts

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).

 

     Suit served. Must respond by 12/26/2013

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?

 

   14 days. If it falls on a holiday then the next business day.

   

    Breach of contract

    Account Stated

    Damages

    Conditions Precedent

    Prayer

 

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

 

  One statement from 09/23/2011, No affidavit, no contract.

[Credator]

Until someone familiar with TX posts I would search the forum for how others have dealt with Midland.

 

This post looks like it may be of interest: http://www.creditinfocenter.com/community/topic/317897-finally-served-attached-summons-info/#entry1210288

 

There is no need for a spouse to be scared and frustrated. These junk debt buyers JDBs paid 5 cents on the dollar for a spreadsheet entry and likely not much else.

 

If possible two heads are better than one. If not, then one can find some support online.

 

Best of success.

[texasrocker]

Actually better to follow what I said in this thread since they pled Account Stated-

http://www.creditinfocenter.com/community/topic/317054-sued-by-midland-overwhelmed-and-stressing-severely

 

Just make sure you edit the Plea to the Jurisdiction according to their wording on their original petition where they claim to have purchased or been assigned the debt.

[lonestark]

Actually better to follow what I said in this thread since they pled Account Stated-

http://www.creditinfocenter.com/community/topic/317054-sued-by-midland-overwhelmed-and-stressing-severely

 

Just make sure you edit the Plea to the Jurisdiction according to their wording on their original petition where they claim to have purchased or been assigned the debt.

 

Thank you, I will do that. After that, I print it out head to the court house on Thursday and ask to clerk to submit?

[Credator]

Thank you, I will do that. After that, I print it out head to the court house on Thursday and ask to clerk to submit?

AFAIK a copy of anything filed with the court must be sent to opposing counsel. I use USPS CMRRR for anything time sensitive (propounding discovery) or that I may need to prove receipt of (close to a deadline and mailing to the court). Some may choose to use certified mail for everything they mail to the court and opposing counsel.

 

I routinely provide an additional copy of my filings for the court to stamp as a conforming copy for me to keep.

[texasrocker]

Make a copy of the first page and ask them to file-stamp it.  If you mail it in include the copy of the first page and a SASE and ask them to file-stamp it and send it back to you. 

 

Yes, anything you file with the court must also be sent to the attorney that filed the suit.  And yes, send it via certified mail.

[shellieh98]

just wanted to say, you can fight this for her in the back ground, but any court appearances, have to be done by her.  So she needs to learn the rules, what and why you will do what you do so that if it makes it to court, she can defend herself.  The law does not allow anyone to do it for you unless you are an attorney.

[texasrocker]

Get this book and study it as extensively as you would have in school for a final exam-

http://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598391585/ref=sr_1_1?s=books&ie=UTF8&qid=1387926871&sr=1-1&keywords=o%27connors+texas+rules

[walterg55]

Also from Amazon: add O'Connors Texas Civil Forms Both are absolutely a must have

[walterg55]

Just wanted to mention I saw the lawyer referenced here in another County Court at Law. Not impressed at all.

[BTO429]

How about

Defendants answer and motion to dismiss

Defendant denies all paragraphs contained within plaintiffs complaint.

 

Plaintiff complaint is a procedural and substantive nullity. No facts or other evidence was attached to the complaint. Plaintiff's complaint cannot withstand a motion to dismiss for failure to state a claim for which relief can be granted.

Plaintiff's complaint also fails to plead plausible facts that are above the speculative level, Bell Atlantic v. Twombly, 550 U.S. 544(2007). Plaintiff has plead no plausible facts that would invoke the courts authority, . Plaintiffs complaint fails to show standing to sue and would give the court no subject matter jurisdiction. Standing is the most basic element of a complaint and Plaintiff's complaint has failed to support this most basic requirement. The court has no authority to even hear this case until plaintiff proves there is a case or controversy by clearly demonstrating that he has suffered an injury in fact that is concrete in both quantitative and temporal sense. He must show the injury can be traced to the challenged action and is likely to be redressed by a favorable decision. Whitmore v Arkansas, 495 U.S. 149 (1990)

Statements of council in brief or in argument are not facts before the court. Subject matter jurisdiction cannot be waived, United States v Cotton, 535 U.S. 625, 630 (2002).

[texasrocker]

How about

Defendants answer and motion to dismiss

Defendant denies all paragraphs contained within plaintiffs complaint.

 

Plaintiff complaint is a procedural and substantive nullity...

Sigh...  Can you just put all of that to rest, please?  Like once and for all?

 

The Plea to the Jurisdiction that I furnished to this person is quite adequate and all that is necessary on that subject in a civil collections case in Texas.  Adding to it or overriding it with precedents from federal criminal and antitrust matters is not likely to bolster this defendant's civil collections case whatsoever.  If anything it would be counter-productive as pointed out in the recent thread that you hijacked with similar gibberish.

[lonestark]

Do we need to send a general denial letter to the court and to the JDB and the interrogatories and requests or is it one in the same?

[lonestark]

just wanted to say, you can fight this for her in the back ground, but any court appearances, have to be done by her.  So she needs to learn the rules, what and why you will do what you do so that if it makes it to court, she can defend herself.  The law does not allow anyone to do it for you unless you are an attorney.

Thank you very much. That is how we are trying to handle it.

[lonestark]

My wife got a letter in the mail back from the court and they have set a trial date for May. What is our next step?

[shellieh98]

These are in your rules, so the next thing would be to ask for Discovery.  Production of Documents (Lots of lists floating around here, do a search) Then when you get those replies, you can do admissions or Rogs based on what they sent you.  Do this now, you don't want to run out of time, your discovery peroid ends 30 days before trial.  You want time to be able to compel answers.

 

 

 

190.3 Discovery Control Plan - By Rule (Level 2)

(a) Application. Unless a suit is governed by a discovery control plan under Rules 190.2 or

190.4, discovery must be conducted in accordance with this subdivision.

(Limitations. Discovery is subject to the limitations provided elsewhere in these rules and

to the following additional limitations:

(1) Discovery period. All discovery must be conducted during the discovery period,

which begins when suit is filed and continues until:

(A) 30 days before the date set for trial, in cases under the Family Code; or

( in other cases, the earlier of

(i) 30 days before the date set for trial, or

(ii) nine months after the earlier of the date of the first oral deposition or

the due date of the first response to written discovery.

 

(3) Interrogatories. Any party may serve on any other party no more than 25 written

interrogatories, excluding interrogatories asking a party only to identify or

authenticate specific documents. Each discrete subpart of an interrogatory is

considered a separate interrogatory.

 

192.1 Forms of Discovery.

Permissible forms of discovery are:

(a) requests for disclosure;

( requests for production and inspection of documents and tangible things;

© requests and motions for entry upon and examination of real property;

(d) interrogatories to a party;

(e) requests for admission;

(f) oral or written depositions; and

(g) motions for mental or physical examinations.

192.2 Sequence of Discovery.

The permissible forms of discovery may be combined in the same document and may be taken in any

order or sequence.

192.3 Scope of Discovery.

(a) Generally. In general, a party may obtain discovery regarding any matter that is not

privileged and is relevant to the subject matter of the pending action, whether it relates to the

claim or defense of the party seeking discovery or the claim or defense of any other party. It

is not a ground for objection that the information sought will be inadmissible at trial if the

information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Documents and tangible things. A party may obtain discovery of the existence,

description, nature, custody, condition, location, and contents of documents and tangible

things (including papers, books, accounts, drawings, graphs, charts, photographs, electronic

or videotape recordings, data, and data compilations) that constitute or contain matters

relevant to the subject matter of the action. A person is required to produce a document or

tangible thing that is within the person's possession, custody, or control.

© Persons with knowledge of relevant facts. A party may obtain discovery of the name,

address, and telephone number of persons having knowledge of relevant facts, and a brief

statement of each identified person's connection with the case. A person has knowledge of

relevant facts when that person has or may have knowledge of any discoverable matter. The

person need not have admissible information or personal knowledge of the facts. An expert

is "a person with knowledge of relevant facts" only if that knowledge was obtained first-hand

or if it was not obtained in preparation for trial or in anticipation of litigation.

(d) Trial witnesses. A party may obtain discovery of the name, address, and telephone number

of any person who is expected to be called to testify at trial. This paragraph does not apply

to rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be

anticipated before trial.

[texasrocker]

Send them the discovery that I PM'd to you and see how they handle that.

Ignore any offers they send pertaining to settling for less.

[lonestark]

Send them the discovery that I PM'd to you and see how they handle that.

Ignore any offers they send pertaining to settling for less.

Did that, certified mail through the court. The court clerk said they handle all of the paperwork between the parties. Should we send another copy to be sure?

[texasrocker]

I have never heard of sending discovery through a court.

Make sure you get a copy of the signed green delivery receipt. 

[lonestark]

I have never heard of sending discovery through a court.

Make sure you get a copy of the signed green delivery receipt. 

Took your advice and sent another discovery request. I received confirmation of delivery 32 days ago. Send it again?

[HotWheels96]

Do your rules say you must send a meet and confer prior to the filing of a motion to compel responses? I would NOT send them another copy. If you have the signed green card, they have it and don't want to respond. Discovery can tell the plaintiff a lot. You've basically just removed your wife from the lowest branch (where all the low hanging fruit reside) and made a statement that she's not going to roll over easily.

Look to your rules for how to proceed when they fail to respond.

[texasrocker]

No, don't send it again.  They cannot use anything against you that they did not produce in discovery and you will likely have a good case for a no-evidence Motion for Summary Judgment.

[lonestark]

This is the response back from Midland. It looks like they are objecting to everything she asked for. From what I can see, there is nothing showing my wife's signature.

 

EDIT- Fixed

 

20140317145712171.pdf

[Clydesmom]

This is the response back from Midland. It looks like they are objecting to everything she asked for. From what I can see, there is nothing showing my wife's signature.

 

EDIT- Will re upload.

 

They don't necessarily have to have ANYTHING with her signature on it.  Some of the things pro-se defendants ask for in discovery which is not needed to be produced:

 

the original signed application.  In the internet era many if not all are on line now and there is no signature so the court will not rely on that alone.

ALL the billing statements.  Many accounts are open for YEARS before a default.  The plaintiff only needs the last 3 statements and up to 6 months prior to prove the amount sued for.

Purchase receipts.  The defendant would have those NOT the creditor since when you sign it goes to you from the cashier.

 

The problem with some of the cut and paste lists of what to demand in discovery is that many are outdated.  They are meant to be a reference not the actual verbatim one used.  You should tailor it to your specific fact pattern.

[BV80]

@lonestark

 

A couple of notes:

 

REQUEST NO. 8

Admit that no employee, agent or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to Defendant.

ADMITTED

 

The above could come in handy.  They've admitted that none of their employees have personal knowledge of the way the OC kept records.   Therefore, if they provide an affidavit from one of their employees that states that the OC kept the records in the regular course of business, you could argue that the admission shows that the affiant does not know that for sure. 

 

Read your Rule of Evidence for hearsay and business records.  It's usually 803(6).  It outlines the requirements that must be stated in an affidavit to authenticate business records.  It does not require that the affiant have personal knowledge of those records, but he/she merely has to show that the records were kept in the regular course of business, etc.

 

I would argue that since the JDB has admitted that none of their employees has personal knowledge of the OC's record-keeping methods, then the affiant is merely reciting the requirements of 803(6) and cannot show show that the records were, in fact, kept in the regular course of the OC's business.  In addition, since the affiant has no knowledge of the record-keeping methods of the OC, the affiant cannot attest to the accuracy of those records.

 

INTERROGATORY 2:

With respect to any Card Member Agreement or other written contract that you contended was delivered to Defendant or that applies to the Defendant's account but which does not identify the Defendant by name or which is not signed by Defendant, explain how you know that it was delivered to Defendant and how you know it applies to Defendant's Account.

After their objection, they stated "Where relevant, Citibank, N.A.has confirmed the authenticity of the document."

 

 

I wish you had stated "alleged account" rather than "Defendant's account".

 

Anyway, I did not see where Citibank confirmed the authenticity of the cardmember agreement.  The Citibank Affidavit of Sale stated that certain electronic records that were kept in the ordinary course of business were sold to the JDB.  It does NOT say which records were sold. 

 

The Bill of Sale and Assignment includes the language of 803(6), BUT it does not identify specific records. 

 

Have you checked your bank records to confirm the date of last payment?