Being sued by Midland in Michigan

[blondie813]

1. Who is the named plaintiff in the suit?

Midland Funding LLC Assignee of World's Foremost  Bank

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

Stillman Law Office

3. How much are you being sued for?

$4011.13

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

World's Foremost Bank

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

Served Summons and Complaint by process server

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

In person - process server

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

Yes

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

I sent two DV letters prior to being served. I'm not sure if I've ever received a timely Dunning, however, I received a letter in response to my second DV request stating that they have opened an investigation concerning my recent request and have requested the appropriate documents. This communication also shows a different amount than the one listed in the summons. This one lists $4136.40. It seems that Midland filed suit in response to my original DV request.

9. What state and county do you live in?

Michigan, Ottawa

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

12/2010

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   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Not sure

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

Disputed with the credit bureaus and with Midland. I have not disputed with the original creditor.

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.

Yes, twice.

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? 

21 days to respond

I did not receive an interrogatory

They are claiming:

1)That the Defendant herein is indebted upon an open account or pursuant to a contract, and defendant accepted the same.

2)Performance has been completed and defendant agreed to pay the account.

3)There is presently due and owing, over and above all legal counter claims, the sum of $4011.13

4)Plaintiff requests judgment for $4011.13 plus court costs and any sundry costs and/or attorney's fees allowable by statute or court rule.

 

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 is attached to the summons that states that "Plaintiff is the current owner of and/or successor to the obligation sued upon and was assigned all rights, title, and interest to defendant's World's Foremost Bank account and that she has access to and has reviewed the records pertaining to the account"

 

[blondie813]

Also, not sure if it matters at all, but I disputed back in December with the CRAs and Midland verified.  I disputed again in February and I received a letter from Equifax this morning that Midland has been deleted. My daily pull shows it is still on EXP and TU.

[Clydesmom]

Also, not sure if it matters at all, but I disputed back in December with the CRAs and Midland verified.  I disputed again in February and I received a letter from Equifax this morning that Midland has been deleted. My daily pull shows it is still on EXP and TU.

 

It doesn't matter for the purposes of a lawsuit.  There is no requirement that they report the debt at all though most do.  Not to mention deleting it now doesn't mean it will not reappear.  Especially if they get a judgment.

[blondie813]

It doesn't matter for the purposes of a lawsuit.  There is no requirement that they report the debt at all though most do.  Not to mention deleting it now doesn't mean it will not reappear.  Especially if they get a judgment.

I was thinking more about if it would matter should I file a counter suit for FDCPA/FCRA violations. They continued to verify to the CRA without providing DV to me.

[blondie813]

So, after a lot of reading in bmc100's thread and a lot of other MI specific threads it looks like my first step is to file an answer and submit a counter affidavit denying plaintiff's account stated claim.  I'm feeling a bit intimidated about getting the document formatting and legal language correct. 

[blondie813]

Or should I file a MTD and the affidavit denying the plaintiff's account stated claim?  Any help is GREATLY appreciated.  

[bmc100]

All we know is that it is Stillman and they are located in Farmington Hills on the other side of the state from you. We have no clue what the complaint states and what was attached to it.

 

Did Midland ever respond to the Validation letters?

[Wins the Battle]

Actually, if you send the DV within the 30 days, and they do not verify and continue collection efforts--including lawsuit--they are in violation of the FDCPA. That can certainly be part of your affirmative defenses, and the basis of a countersuit.

[blondie813]

@bmc100,  I believe I had identified what the complaint says in my original post, my apologies if I was not clear.  It says:

 

1)That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted the same.(Lists original account number)

2)Performance has been completed and defendant agreed to pay the account.

3.)There is presently due and owing, over and above all legal counter claims, the sum of $4011.13.

4)Plaintiff requests judgment for 4011.13 plus court costs and any sundry costs and/or attorneys fees allowable by statute or court rule.

 

That's it.  

 

The only thing attached is an affidavit from Midland stating:

1) She has access to pertinent account records for Midland, servicer of this account on behalf of plaintiff. She made the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. Plaintiff is the current owner and /or successor to the obligation sued upon and was assigned all rights, title and interest to defendant's account. She has access to and has reviewed the records pertaining to the account and is authorized to make this affidavit on the plaintiff's behalf.

2)Midland's records show defendant owed a balance of 4011.13.

 

There is nothing else attached to the complaint.

 

If I am understanding MCL 600.2145 correctly, their affidavit was not timely as it was given on 1/20/14 and it appears the case was filed on 2/18/14.  

 

Midland did respond to the second DV, stating that they have opened an investigation concerning my recent request and have requested the appropriate documents. This communication also shows a different amount than the one listed in the summons. This one lists $4136.40.

 

Thank you everyone for your feedback.

 

 

 

 

[bmc100]

They did not verify or validate the debt prior to starting litigation? If so, this is a FDCPA violation.

 

I will PM you a consumer law attorney to call to discuss the situation. It looks like you have a good counter-claim against them.

[blondie813]

So, an interesting development in my case.  I filed my Answer and Defendant's Affidavit with the court.  Today in the mail, I received a notice from the court that the judge has referred the case for facilitative mediation. The notice says that if the case does not settle with mediation then the Court will set the case for pre-trial. 

 

I was quite surprised to get this letter because based on what I've read through in the forums, this is not the normal order of how these things go. I am wondering if anyone in Michigan has had something similar happen to them?  Any suggestions on how to prepare to proceed with the mediation and any ideas of what I can expect?

 

I know that CA's typically win by default because people don't show up and for the most part, those being sued typically don't defend themselves.  I am wondering since I am representing myself if the judge was trying to help me out by keeping this out of trial?

 

TIA for any feedback.

[bmc100]

Type up a summary of your Defense for the mediation and treat it like a trial. It is up to Midland to prove their claims. If Stillman comes to the mediation without any additional evidence, all you say to the mediator or mediation panel is "The Plaintiff has the burden of proof and they have not come up with any legitimate document that shows I owe them money". 

 

The Stillman attorney may press you for information. All you do is state, "it is your case, I do not have the burden of proving your case for you". 

 

All they have so far is an affidavit which does not mean a thing. If the panel or mediator asks you if this is your account, tell them the same. It is their case. 

[blondie813]

Type up a summary of your Defense for the mediation and treat it like a trial. It is up to Midland to prove their claims. If Stillman comes to the mediation without any additional evidence, all you say to the mediator or mediation panel is "The Plaintiff has the burden of proof and they have not come up with any legitimate document that shows I owe them money". 

 

The Stillman attorney may press you for information. All you do is state, "it is your case, I do not have the burden of proving your case for you". 

 

All they have so far is an affidavit which does not mean a thing. If the panel or mediator asks you if this is your account, tell them the same. It is their case. 

 

 

@bmc100 Thanks for the feedback. I have absolutely no intention of giving them any information  Should I expect a Stillman attorney to show up for the mediation or is it permissible for them to have a local rent-a-lawyer representing them?

 

I've read through several threads this evening re:cases referred to mediation here in Michigan and it seems it is more common than I realized. 

[Brotherskeeper]

@

 

"Hints From A Neutral 2.403 Mediator (Case Evaluator)" by Martin I. Reisig:

http://reisigmediation.com/pdf/reisig-ocba02-1999.pdf

Other articles :

http://www.reisigmediation.com/articles.php

 

If you can get to a law library, look in "Michigan Litigation Forms and Analysis," Chapter 44 Case Evaluation, for a sample Evaluation Summary and letter to clerk. If you have qualified as indigent for your court filings, you should call the clerk at the case facilitator/evaluator to ask what to do to waive any fees. In Oakland County in 2012, the county case evaluation fee was $75. 

[bmc100]

This is how to use the affidavit you attached to your answer.

 

http://www.scribd.com/doc/216106827/Abdoo-Opinion

[blondie813]

So, in another turn of events I received a letter in the mail today from Stillman. It includes a Stipulation and Order to Dismiss Without Prejudice that they are asking me to sign and return to their office. 

 

Now, as much as I'd like to think that my Answer and Defendant's Affidavit made them think it was going to be a big hassle to fight me in court, I am guessing that because I am across the state and the judge referred the case for mediation that it probably wasn't worth their time and expense to pursue things any further?  But if I sign this and it is dismissed without prejudice, that means they can take me to court again, correct?  What is the likelihood that they will? And what options do I have to get it dismissed with prejudice?

 

Thank you to everyone for all of your assistance and feedback. 

[Savoir]

So, in another turn of events I received a letter in the mail today from Stillman. It includes a Stipulation and Order to Dismiss Without Prejudice that they are asking me to sign and return to their office. 

 

Now, as much as I'd like to think that my Answer and Defendant's Affidavit made them think it was going to be a big hassle to fight me in court, I am guessing that because I am across the state and the judge referred the case for mediation that it probably wasn't worth their time and expense to pursue things any further?  But if I sign this and it is dismissed without prejudice, that means they can take me to court again, correct?  What is the likelihood that they will? And what options do I have to get it dismissed with prejudice?

 

Thank you to everyone for all of your assistance and feedback. 

 

Be careful here; this could be a deception. You sign the stip (thinking that they are honest) and you don't show at any further proceedings .......... they win.

 

Being across the state doesn't really affect matters much; they can, and usually do, hire a rent - a - lawyer to stand in for them.

 

If you sign the stip and it is legit; yes, they can refile against you. The likelihood that they will is indeterminable.

 

You could rewrite the stip to include 'with prejudice' and send it back to them, unsigned, requesting that they sign it and send it back to you which you will then sign and file with the court.

[bmc100]

Call them and state to the paralegal or attorney that the only way you will sign this is with prejudice. 

[bmc100]

or sign it and call a consumer law attorney and try to get a FDCPA case going against Midland. They will settle by forgiving the debt and dismissing with prejudice. 

[bmc100]

I spoke to a consumer lawyer today and he told me that it looks like you have a good FDCPA claim if they dismiss without prejudice.

[blondie813]

@bmc100 Thanks. Sending you a PM.