Sued in Missouri - Midland Funding LLC - Assistance Appreciated

[tkoman]

1. Who is the named plaintiff in the suit? MIDLAND FUNDING LLC

 

2. What is the name of the law firm handling the suit? Gamache and Meyers

 

3. How much are you being sued for? About $7,000.00

 

4. Who is the original creditor? Suit states "Webbank" - the attached paper work

is from Dell Financial.

 

5. How do you know you are being sued? Served

 

6. How were you served? In person by Sheriff.

 

7. Was the service legal as required by your state? Yes, but still looking into it

- the suit was initiated in another county in June of 2013 so not sure what took

this long to serve.

 

8. What was your correspondence (if any) with the people suing you before you

think you were being sued? Never heard of them.

 

9. What state and county do you live in? Missouri

 

10. When is the last time you paid on this account? Most likely August 2009

 

11. What is the SOL on the debt? To find out: 5 Years on Open-Ended

 

12. What is the status of your case? Suit served? Motions filed? Service was

conducted only.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor

and the collection agency?) No - this is first notice

 

14. Did you request debt validation before the suit was filed? No.

 

15. How long do you have to respond to the suit? Almost a full 60 days and the

summons says to personally appear and that I may file a responisve pleading (see

below)

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

 

16. What evidence did they send with the summons? An affidavit? Statements from

the OC? Contract? List anything else they attached as exhibits. An affidavit from

an employee of Midland, and what appears to be a list of charges from Dell

Financial

 

17. Read this article: OK! Done....

 

__________

 

I posted quite a while back when this suit was filed and it took them awhile to find me, but they did - since I haven't moved or anything in the last three years - no idea why it took so long but I will explain that in a bit.

 

I have been sued by Midland Funding represented by Gamache and Meyers in St. Louis, Missouri.

 

I had a Dell account that I stopped paying in 2009 due to extreme financial hardship (loss of home, job, etc. all at once). It was sent to collections and now bought by JDB.

 

I am attaching redacted copies of the petition served to me. One of my early observations is that the petition (note that it is the first “Ameneded” sic) states that I entered into a contract with “Webbank” but the attached documentation is from Dell Financial LLC. It is not immediately clear of the relationship of the two.

 

An affidavit was attached from an employee of Midland Credit Management stating she is aware of the Plaintiff's business practices.

 

Attached was a list of charges/interest etc., from Dell financial. I did not scan that as it is just a vague statement of charges with my name at the top.

 

I have read Cach LLC and will be listening to the oral arguments made in preparation for my defense. I also have visited my local courthouse and pulled every disposed case in this and adjacent counties.

 

Of those cases I noticed that 99% were default judgments. The other few were either “consent judgments” or the defendant hired an attorney which resulted in a quick dismissal. No pro se defendants in the last few years here.  However, I am not from here - I successfully defended myself against LVNV funding in Florida as a pro se defendant, but I am not as familiar with Missouri rules of civil so I will have to be working over time on reading the local rules, but templates, successful strategies, etc would be great. I have bookmarked a few of the Missouri threads here and read them thoroughly – I also have read through the paperwork of the attorneys here that filed in the suits.

 

My first strategy is to hold off on the answer and possible affirmative defenses – in MO (and by MO that I mean in my VERY small town and small county which in and of itself poses logistic problems to Plaintiff - nearest attorney for them to hire is 25 miles away - nearest airport.... 4 hours) looks like most of the time these are not even filed but I have to show up in court in roughly 60 days – I think I would want to file the Answer at that time and proceed from there. My initial thoughts are to attack standing aggressively (how I won in Florida) and also attack the amount allegedly due.

 

Thanks so much in advance for any advice help, opinions etc. I will keep this updated.  

Produced_by_convert-jpg-to-pdf.net.pdf

[tkoman]

Anyone in MO see the need to file Affirmative Defenses with the Answer? It seems that no in my jurisdiction ever does, usually just a brief denial (or just appear in court). My strategy is to file an answer like this: 

 

COUNT I – SUIT ON ACCOUNT

1.   Deny;

2.   Deny;

3.   Admitted;

4.   Deny;

5.   Deny;

 

And then focus on admission, etc. Chances of succeeding with an Motion to Dismiss and on what grounds? I think a motion to strike the affidavit has merit. 

[debtzapper]

This is MO's leading debt collection case, won by  Askew  Discusses assignment and business records

 

http://scholar.google.com/scholar_case?case=6176501071132996397&hl=en&as_sdt=205&sciodt=206

[debtzapper]

l

CACH LLC v. Jon J. Askew study this and listen to the trail and read all the pdf files
http://www.courts.mo...54?OpenDocument askew case
http://www.creditinf...unding-aka-jdb/ this is another case that was won
http://www.creditinf...ssouri-lawsuit/ see post#2
http://www.courts.mo...page.jsp?id=676 Rules of Civil Procedure
http://www.courts.mo.../page.jsp?id=46 court rules

[shellieh98]

I would list at least "plaintiff lacks standing to sue" as an affirmative defense.  It is the only one that requires them to prove they have standing and you do not have to prove anything, only object to their heresay evidence.

[tkoman]

Thank you both - yes Askew is amazing stuff. 

 

And shellie - thank you - funny enough just this morning I was looking at what I had so far, and looking at my answer,  and I thought that filing just the one was probably the right idea since that was the main prong that I was attacking - in my other state I usually filed a whole bunch right off the bat - but this makes sense. 

 

thx!

[tkoman]

Here's an oddball question but it should be asked - should I refer to the petition in my answer as "First Ameneded [sic] Petition" or does that sound smart-alecky?

[BV80]

@tkoman

 

If this is your first answer to the complaint, it's just your answer.  You only refer to "amended" if you're changing a previous answer or motion.

[tkoman]

@tkoman

 

If this is your first answer to the complaint, it's just your answer.  You only refer to "amended" if you're changing a previous answer or motion.

Yes, but what I am asking is at some point I have to refer to what I am answering - I am accustomed to titling things according to what I specifically am responding to so, for example, my answer normally would read something like "Defendant Tkoman's Answer to Complaint". However, they filed an amended petition (because they had me in the wrong county) so it would read "Defendant tkoman's Answer to Plaintiff's First Ameneded [sic] Petition and Affirmative Defenses". I just don't know if it sounds like I am taking a shot at them (not that it is a bad thing, but I don't want the judge to get cranky). 

 

This is not a big deal, of course, but something that hadn't come up before in my other suits (a misspelling on a title) but they had in other suits, put the wrong court, etc. - something I always point out subtly to get the idea in the judge's head that 'inaccuracies exist' already. But it is kind of funny that every time I need to reference plaintiff's own petition I would have to say Plaintiff's Ameneded [sic] Petition. Maybe say it once and then just correct it from that point on.

 

Either way, crafting admissions and my brief answer and denial with at least one affirmative defense - I will file that within thirty even though the hearing is a way off since I think MO requires you to answer within 30 if you counterclaim or have aff defenses (still looking into that). 

 

thx!

[shellieh98]

I would file it as answer to plaintiffs amended petition.

[tiger12be]

@tkoman -  I was sued by these scumbags and beat them in court last year. I would be MORE than happy to help you in any way that I can. I live in southwest Missouri, so I'm pretty familiar with procedures and what you need to do to beat these guys. Not sure where you are in Missouri but one thing you'll want to be sure to do is check your local rules. There are almost always local rules of some sort. I did find that our courthouse was pretty lenient when it came to submitting documentation (there are some formatting specifications dictated in the local rules). The JDB attorneys didn't even follow the local rules as far as the complaint, requests, answers, etc. and the judge never even brought it up. I made CERTAIN to follow ALL local rules because I think it just makes you look more professional than those morons they throw in court to hopefully get a default on you.

 

If you'd like, read through this:  http://www.creditinfocenter.com/community/topic/319397-business-records-exception-hearsay-missouri/?hl=tiger12be#entry1231979  

It is my 'diary' of what happened from the beginning to the end of my case.

 

I'll try to check back in as much as I can. Get ready to kick their a$$!!

 

 

Oh, and as for your answer to the complaint. Nothing fancy. Just something like post #58 in the URL I posted above. Obviously, don't cut and paste mine. Make it match what they sent you!

[tkoman]

@tkoman -  I was sued by these scumbags and beat them in court last year. I would be MORE than happy to help you in any way that I can. I live in southwest Missouri, so I'm pretty familiar with procedures and what you need to do to beat these guys. Not sure where you are in Missouri but one thing you'll want to be sure to do is check your local rules. There are almost always local rules of some sort. I did find that our courthouse was pretty lenient when it came to submitting documentation (there are some formatting specifications dictated in the local rules). The JDB attorneys didn't even follow the local rules as far as the complaint, requests, answers, etc. and the judge never even brought it up. I made CERTAIN to follow ALL local rules because I think it just makes you look more professional than those morons they throw in court to hopefully get a default on you.

 

If you'd like, read through this:  http://www.creditinfocenter.com/community/topic/319397-business-records-exception-hearsay-missouri/?hl=tiger12be#entry1231979 

It is my 'diary' of what happened from the beginning to the end of my case.

 

I'll try to check back in as much as I can. Get ready to kick their a$$!!

 

 

Oh, and as for your answer to the complaint. Nothing fancy. Just something like post #58 in the URL I posted above. Obviously, don't cut and paste mine. Make it match what they sent you!

 

Hey thanks! Right now I am pulling something a little different than what I am used to in court, but I motioned the court to compel arbitration and stay the case pending. I am reading your thread right now and will be prepared for anything they pull though - in this area they are getting like 90% defaults (some people show up to answer the summons then do nothing else - get summary j'ed - that makes up another roughly 9%) and then the 1% got a lawyer and they left tire tracks from the courthouse. No pro se. Until now 

 

Arbitration is a funny thing, but I think I have come far enough now to even be able to file a formal complaint if necessary - but everything I see so far looks like they won't like that (especially with the terms of the contract stating they pay ALL costs of mediation). Will keep this updated and hopefully some day I can pay it forward too. 

 

THANKS!