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Being Sued by Midland Funding in AZ


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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? 
Jerold Kaplan Law Office, P.C.

 

3. How much are you being sued for?
A little over $2,000. I'm assuming it's growing each week.

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

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

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

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?

None that I know of

9. What state and county do you live in?
Arizona- Yavapai

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
07/14/2009 (according to Midland. ) It was charged off 7/30/2010

11. What is the SOL on the debt? To find out: 
6 years I'm guessing.

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

Actually having a hard time finding this one out. I don't have a case number and nothing comes up on the courts website under my name. As far as I know just me being served.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No-didn't know I had this debt. It didn't show up on the last credit report I had to run.

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

15. How long do you have to respond to the suit?

20 days, I was served on the 11th so I believe it's due by the 31st.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? 
Just an affidavit.
 

 

So a few questions to start out. First, I'm listed by my maiden name on the summons, do I need to submit anything with my current legal name to the courts/plaintiff?  Second, they are also suing my husband. I know Az is a community property state so my debts are his. However (if this is the credit card I'm thinking of) I got the card before I even met my husband. The last payment date (according to Midland) is prior to my marriage as well. Is he responsible for this debt? If not should I request he be removed from when I respond to the summons?

Next, regarding the SOL, since both my last payment and the date my account were charged off are  prior to the change in ARS 12-548, does this make the SOL 3 years or 6 years?

 

Thanks in advance, I honestly don't really remember this credit card and I'm still in a bit of shock about this.

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The 3-year vs. 6-year debate is not completely settled on these pre-2011 debts. It seems the Commissioner hearing the Justice Court appeals is considering the arguments as long as the defense is properly raised in an answer (you have to claim the debt is the result of an "open account" and it really helps if you disputed the debt any time before the lawsuit).

As a married person, the onus is on you/your husband to demonstrate the debt is not a community debt. He would have to file a motion to dismiss him from the lawsuit and provide evidence that the marriage was after the last charge/payment on the account. The tricky part is he will somehow have to allege a last payment without throwing you under the bus.

Edit: just an FYI, it's likely you will lose the SOL argument in your Justice Court, and also likely you will lose on summary judgment (before you even get a trial). If these things happen you will have to appeal to get the Justice Court ruling reversed. In this case, expect to spend the next two years fighting your battle.

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The 3-year vs. 6-year debate is not completely settled on these pre-2011 debts. It seems the Commissioner hearing the Justice Court appeals is considering the arguments as long as the defense is properly raised in an answer (you have to claim the debt is the result of an "open account" and it really helps if you disputed the debt any time before the lawsuit).

As a married person, the onus is on you/your husband to demonstrate the debt is not a community debt. He would have to file a motion to dismiss him from the lawsuit and provide evidence that the marriage was after the last charge/payment on the account. The tricky part is he will somehow have to allege a last payment without throwing you under the bus.

Edit: just an FYI, it's likely you will lose the SOL argument in your Justice Court, and also likely you will lose on summary judgment (before you even get a trial). If these things happen you will have to appeal to get the Justice Court ruling reversed. In this case, expect to spend the next two years fighting your battle.

 

Thank you for responding. I was worried that filing a motion to dismiss him would hurt my (our) case.

 

I suppose I may just try to settle before we even go to court. It's very frustrating that this didn't show up on my last credit report (or ones I've had the last 2 years). Hard to dispute something I don't even know about. I've never had a credit card from Chase, the one I was thinking of was CapitalOne. Sorry to vent.

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@Goody_Ouchless Yeah I called today, I offered 1,000 and they didn't take it. They said they wouldn't offer/take me anything less than what they have on balance unless I provided the names my employer. Seems stupid to me that they would NEED that information to take my money. Said they were required to obtain it. Not really sure why. They obviously know where I live and now have my phone number. 

 

@Harry Seaward The summons only has John Doe but the court information online (I finally found it, they added a letter to my last name and one of the numbers on the summons I thought was a 3 is an 8) has his name. Figured if the courts had it I probably should have him sign the when I submit my response.

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You need to file an answer before the 20th day.  You can get the form online or at the court..  You both need to sign it or you sign your hubby name.  Kaplan  has been getting very few cases as goody said and trying to prove wins,.  I would use the grandfathered SOL defense and other affirmative defenses.

 

Also , I would file a sworn denial of debt (notarized).  Also , because your debt is not that large the further along you go , the more likely they will settle.  At the beginning , not so much.

 

Wasn't the case number on what they served you with ?? It should have been?  But if you don't get your answer in asap it will be bad .  If you need help with your answer just ask

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You need to file an answer before the 20th day.  You can get the form online or at the court..  You both need to sign it or you sign your hubby name.  Kaplan  has been getting very few cases as goody said and trying to prove wins,.  I would use the grandfathered SOL defense and other affirmative defenses.

 

Also , I would file a sworn denial of debt (notarized).  Also , because your debt is not that large the further along you go , the more likely they will settle.  At the beginning , not so much.

 

Wasn't the case number on what they served you with ?? It should have been?  But if you don't get your answer in asap it will be bad .  If you need help with your answer just ask

 

Thanks, I wrote up my answer last night and am submitting it this morning. 

 

The case number was on the summons but it was like the ink was running out or the stamp was worn so the 8 didn't show up completely. And just to clarify that they added a letter to my name online not on the summons itself. 

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@Harry Seaward The summons only has John Doe but the court information online (I finally found it, they added a letter to my last name and one of the numbers on the summons I thought was a 3 is an 8) has his name. Figured if the courts had it I probably should have him sign the when I submit my response.

 

If the court has his name showing, the gig is up.  Just respond jointly then.

 

 

Also , because your debt is not that large the further along you go , the more likely they will settle.  At the beginning , not so much.

 

This is wrong.  JDBs have capped legal fee agreements with their lawyers.  Once they reach that cap (usually within a month or two of litigation) the JDBs have ZERO incentive to settle because it will cost them the same to pursue the lawsuit no matter how long the case lasts, even into appeals.

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  • 2 weeks later...

Looks like Kaplan is getting active again, know of JDB filed in the last month in Maricopa County JC.  

 

Didn't really state specific cause of action just defaulted on a credit card debt.  Didn't specify if alleging contract law violation or account stated basis in Complaint.  The person has answered -who also did have id theft told to him by IRS, police report filed and credit report freeze to credit bureaus.  Has a mediation date set and now worrying may get a MSJ before the mediation dates.  Is in process of filing disclosure statement.

 

BTW they also moved for default judgment 10 days before the 20 days allowed to answer.  So he had to file an objection to the default judgment motion.  It appears they filed about 20 days after the suit was filed,  not 20 days after it was served.

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