Sued by Midland Funding in AZ

[B3RGE]

I was served via a copy of documents posted on my front door 2 days ago.  In the claim it names my wife and John Doe.  My wife has a common name (like Mary Smith).  We have been married for over 20 years, however she kept her maiden name.

 

 

The claim reads as follows:

 

Midland Funding LLC - Plaintiff

 

vs.

 

Mary Smith And John Doe - Defendants

 

Plaintiff for its complaint against Defendant(s) allege as follows:

 

1. Plaintiff believes that Defendant(s) are residents of the Court where this was filed

 

2. Defendant(s) Mary Smith and John Doe are husband and wife 

 

3. Mary Smith opened an account with FIA Card Services agreeing to make payments for purchases as required by the card agreement

 

4. Plaintiff is the successor of interest in said account from FIA Card Services, having purchased said account

 

5. Defendant(s) Mary Smith did make purchases but failed to make payments

 

6. The balance remaining due and unpaid is $7102.98

 

7. Plaintiff declared Defendant(s) to be in default and demands payment of the balance due.

 

WHEREFORE, Plaintiff request Court enter judgement against Defendant(s) in the amount of $7102.98 plus court cost.  Plaintiff request this court enter any and all further releif it deems appropriate under the circumstances.

 

 

I am preparing an answer (based on information gleaned from this site) and was wondering how to proceed.  

 

Since I am not specifically named, does my name need to be included in the answer?  Does my wife answer in her name only?

 

Because we have been married for so long, she has a common name and I am not specifically named, we believe that this is not our debt. 

 

 

I believe that we can admit to paragraph 1.  we do live in the jurisdiction of the court.  Everything else I was considering responding with Defendant is without sufficient information to either admit or deny the allegation therein and therefore denies it.

 

Any help is appreciated.

[Harry Seaward]

Before you do anything, look on the court website to see if this is a legitimate lawsuit:

http://justicecourts.maricopa.gov/FindACase/casehistory.aspx

 

 

The reason I bring up searching for the case online is because proper service in Arizona requires them to personally serve the summons and complaint.  They have to have visual contact with a person and confirm the person they are serving lives at the address or can accept service there.  Leaving the documents taped to the door or left lying on the front porch is not proper service.  They have been known to do this when they really haven't filed a lawsuit and are just trying to scare the person into calling them.

 

Because the service was improper, you can ignore it for now, but you risk having a default judgment against you if you do ignore it.  You can get a default set aside pretty easy, but it may not be worth the hassle.

 

If only your wife was named in the lawsuit, technically only she has to respond.  She can deny being married to "John Doe" (unless that happens to be your real name).  They will have to find out your name through discovery and then will have to serve you separately at a later date.

 

FIA Card Services is Bank of America.  If it's possibly your debt, when do you think the last possible payment would have been?

[B3RGE]

They attached an order for alternative service which was signed 10/07/2014 by the judge.  We bought a house in February 2014 and have been renovating it, so we were not at the address until late April.

 

They indicate that they have tried to serve on multiple occasions and confirmed that there was someone present that was "hiding" from the server, thus the alternate method.   I am not aware of this claim and have not been actively avoiding being served.

 

I do see that the case was originally filed in April 2014.  When i check the case history online there are no pending dates.

 

We went through some financial trouble in 2009.  When we bought the house initially this didn't show up on a credit report.  When we went to close it suddenly appeared. This was 12/2013.  I believe that she disputed it then.

 

 

I am not sure why they would wait until now to bring this up if it dates back to 2009.

[Goody_Ouchless]

They used to wait this long in order to rack up interest. Now it's probably just because they are so busy destroying lives.

[hot in az]

Yes, they have to serve you in 120 days . If it gets close and they can't, they ask the judge for alternative service.  Happened to me.

 

You need to file your answer. As for names I would not worry about it. You are married. Az community property . You will both sign everything you file together.

 

Look at some sample answers.  Post what the complaint says if you can and we will help you answer.  It never hurts to file a notarized sworn statement of denial  with your answer.

[B3RGE]

We received the certified mail copy of the claim in the mail yesterday.

 

My answer is is red

 

The claim reads as follows:

 

Midland Funding LLC - Plaintiff

(Blatt, Hassenmiller, Leibsker & Moore, LLC)

vs.

 

Mary Smith And John Doe - Defendants

 

Plaintiff for its complaint against Defendant(s) allege as follows:

 

1. Plaintiff believes that Defendant(s) are residents of the Court where this was filed

     Defendant admits to Paragraph 1 

2. Defendant(s) Mary Smith and John Doe upon information and belief, are or were husband and wife at all times during the events giving rise to this action. Defendant(s) upon information and belief, at all times acted for the benefit of the marital community.

    Defendant denies the allegations contained in this paragraph. 

3. Prior to filing, Defendant(s) Mary Smith opened an account with FIA Card Services agreeing to make payments for purchases as required by the card agreement.

    Defendant denies the allegations contained in this paragraph. 

4. Plaintiff is the successor of interest of said account from FIA Card Services, having purchased said account in the regular course of business in good faith and for value.

    Defendant denies the allegations contained in this paragraph. 

5. Defendant(s) Mary Smith did make purchases and charged the same to the account, but failed to make the required payments necessary to the account.

    Defendant denies the allegations contained in this paragraph. 

6. The balance remaining due and unpaid at the time of the filing of this Complaint is $7102.98

    Defendant denies the allegations contained in this paragraph. 

7. Plaintiff declared Defendant(s) to be in default and demands payment of the balance due.

    Defendant denies the allegations contained in this paragraph. 

WHEREFORE, Plaintiff request this Court enter judgement against Defendant(s) in the amount of $7102.98 plus court cost.  Plaintiff request this court enter any and all further relief it deems appropriate under the circumstances.

 

Any of Plaintiff's allegations not expressly admitted to herein is hereby denied.

 

Affirmative Defenses

1. Lack of Standing  

2. Statute of Limitations

3. Waiver

[Harry Seaward]

I would make mention in your answer somewhere (probably Affirmative Defenses) that "upon information and belief", Plaintiff's claim is based upon an "open account".  This opens the door for your 3-year SOL argument.

 

Did you ever dispute this debt with the OC or any other entity that tried to collect from you?

[B3RGE]

I don't recall any collection efforts from OC.  She did dispute it earlier this year.  

 

 

Should the "Open Account" remark go before the Affirmative Defenses list?

 

Like this:

 

 

Any of Plaintiff's allegations not expressly admitted to herein is hereby denied.

 

Affirmative Defenses

Upon information and belief, Plaintiff's claim is based upon an open account:

1. Lack of Standing  

2. Statute of Limitations

3. Waiver

[Harry Seaward]

I would state it within the Statue of Limitation defense, like this:

Defendant asserts any of Plaintiff's claims that may exist are barred by applicable statues of limitations based on an open account theory and/or other theories not presently known to Defendant but to be identified by process of discovery.

Thanks to my OCD, that's pretty wordy. You can probably put a period after "open account theory" and be done with it.

[B3RGE]

I filed my answer with the court.  I asked them when they show I was served.  They had OCT 30th.  Odd since I had the copies on my door on OCT 24th,

 

Had I known I may have waited longer to file an answer.

 

I had to go out of town on a family matter, when i returned I had notice that a certified letter from Blatt, Hassenmiller, Leibsker & Moore, LLC was attempted to be delivered but no one was present to sign for it.  I missed the date to pick it up and the PO (11/13/2014) so it was returned.

 

I checked with the court and the last thing they show was my answer, so I don't know what they are sending me.

 

My question is what happens now?  Do I need to start preparing my discovery motion?

[davephx]

Others here may disagree but I would forget serving Discovery.

 

Rarely will they answer with anything very helpful and it tips your hand on what maybe how you will challenge and gives them time to get documents you may request which they may not otherwise get thinking you don't know how to use recent cases that require it (In Superior and Appeals Court reversals)

 

I would just wait for the Motion for Summary Judgment and see what attachments to back it up they include.  Usually not what is required in many cases and once they have filed they can not submit more evidence as to the MSJ.   

Sadly in Maricopa Justice Court you almost always lose with the non-lawyer judges that don't look seriously at the legal issues.  But your reply to the MSJ if well done can challenge what they didn't prove and often will win on appeal to Superior Court.  Sad can't get "justice" in Justice Court based on the AZ appeals cases etc but often lose and have to appeal even if your legal arguments are valid.

[Az Piano Lady 14]

What was the complaint?? Breach of contract  Account stated  or both.  Was there an affidavit?  What was included with the complaint?  If you were married at the time of alleged default just assume it is a joint debt. 

[B3RGE]

I believe that the complaint is account stated.  There was an affidavit in support of judgement that an employee of Midland funding swears to the following:

 

According to MCM's records:

 

Midland is the current owner of the account which was assigned by FIA Card Services

Account was opened in 4/2000

Account had a balance of $7,102.

Last payment was 7/2010.  

Account was charged off 2/2011.

 

We were married in 1989 any account she would have opened would have my name on it

 

Here is the language in the complaint:

 

Midland Funding LLC - Plaintiff

(Blatt, Hassenmiller, Leibsker & Moore, LLC)

vs.

 

Mary Smith And John Doe - Defendants

 

Plaintiff for its complaint against Defendant(s) allege as follows:

 

1. Plaintiff believes that Defendant(s) are residents of the Court where this was filed

 

2. Defendant(s) Mary Smith and John Doe upon information and belief, are or were husband and wife at all times during the events giving rise to this action. Defendant(s) upon information and belief, at all times acted for the benefit of the marital community.

 

3. Prior to filing, Defendant(s) Mary Smith opened an account with FIA Card Services agreeing to make payments for purchases as required by the card agreement.

 

4. Plaintiff is the successor of interest of said account from FIA Card Services, having purchased said account in the regular course of business in good faith and for value.

 

5. Defendant(s) Mary Smith did make purchases and charged the same to the account, but failed to make the required payments necessary to the account.

 

6. The balance remaining due and unpaid at the time of the filing of this Complaint is $7102.98

 

7. Plaintiff declared Defendant(s) to be in default and demands payment of the balance due.

 

WHEREFORE, Plaintiff request this Court enter judgement against Defendant(s) in the amount of $7102.98 plus court cost.  Plaintiff request this court enter any and all further relief it deems appropriate under the circumstances.

[Az Piano Lady 14]

Thanks, account stated is a little different than breach.  I have been fighting two midland suits for over 2 years.  Make a calendar of when everything is due.   For example answer 20 days after complaint. 

 

Discovery 40 days after that.  Just make sure you file everything on time and jointly signed and mailed CMRRR  . You have time for discovery but in AZ you file a disclosure statement with the other party.  I always sent it to the court as well to prove I sent it to them.

[B3RGE]

I have already filed the answer.  What goes in a disclosure statement?  

[1stStep]

Disclosure in AZ is what the rest of the world calls Discovery

[Harry Seaward]

If you are going to fight this on your own you need to get familiar with the court rules.

The amount of the debt dictates that you should have been served in Justice Court. Here is the link to those rules:

https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&transitionType=CategoryPageItem&contextData=(sc.Default)

Rule 121 tells you what you should have in a disclosure statement.

[Seadragon]

I will help with the SJ response also. Even though I am in California, I help some people get out of the summary judgment jam. These leaches fall apart when you file a motion to strike. Make sure to file your own affidavit, there are good examples here. and try to find a reason for recusal. Maybe the judges wife is related or some other reason.

[Harry Seaward]

In Arizona you can ask for a new judge any time before the judge decides on any contested issue.

Do you have reason to belive this judge won't be fair? (Other than the fact that you're in Justice Court, that is.)

[B3RGE]

This was filed in Moon Valley Justice court.  I don't know any specific reason why the judge should be removed. 

[Harry Seaward]

I do not see where they claim account stated or beach of contact.

Did you ever dispute this debt or any part of it with anyone?

[B3RGE]

I don't either.  I posted the language of the claim 

 

She disputed it earlier this year when they called to collect. 

[Goody_Ouchless]

This Midland's boiler-plate lawsuit. Mine is exactly the same with only the names, dates and amounts changed. 

 

When they say "card agreement" they are suing based on statues relating to credit cards. Some of the less-capable JDB's get into "account stated" and "breach of contract" language. Midland keeps everything simple and to the point, making them very hard to defeat in today's world. Notice that their complaint is written like an MSJ - just the undisputed facts.

 

Midland's agreement with Blatt almost certainly contains a capped-fee agreement, meaning that tying them up in court for two years doesn't cost Midland a dollar more than if they win their MSJ.

 

From following these cases (and living them), Midland doesn't fool around with "junk" anymore. They buy high-dollar, well documented accounts and sue people who have two nickles to rub together.

 

A huge mistake people make on these forums is to think that places like Midland are "illegal," or that since the debt was sold for pennies on the dollar that we no longer owe anything. Midland is going to court saying that you got a credit card, you used it, you stopped paying and they bought the account. If those things are true (as they are in 99% of the cases on these forums) then the court may not be impressed with technicalities.

[B3RGE]

The reason for going to court is to prove that those things are true.

[Harry Seaward]

Another thing people forget is that this is not criminal court and the "beyond a reasonable doubt" standard of proof does not apply.  In civil cases the standard of proof is "preponderance of evidence" which means the court will be asking if it's "more likely than not" that something happened.  If a JDB flops 3 dozen account statements in front of the judge, you can do the math on how that will be viewed by the court.  Then all the JDB has to show is an unbroken chain of custody.  Thanks to State v. Parker, this is easily accomplished with affidavits.

 

If the debt was sold directly to Midland from the OC, you have a very long uphill battle ahead of you.  Plan to lose in trial court, probably on MSJ, and then plan on appealing if you want to try getting the trial court ruling reversed.  Unless they cannot prove the original debt or that it was assigned to them, you're looking at 18-24 months of hard core battle.

 

Of course you won't know all of the evidence they have on this debt until disclosure/discovery, but by that time, the fee cap will have been reached so Midland will have ZERO incentive to back down or settle with you.