Served a summons by Midland Funding/Blitt and Gaines/Help

[weskay9096]

Need help with a summons I received from Midland funding. Small claims court. Was served summons. being sued for $1600. Sent letter to midlands attorney disputing alleged debt. Filed for an appearance. Filed a dispute with credit reporting agencies. Went to first court date according to summons. Date set for arbitration/trial. need some help or advice on my next move !

[weskay9096]

1. who is the named plaintiff ?

Midland Funding

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

Blitt & Gaines

3.How much are you being sued for ?

$1600.00

4.who is the original creditor ?

Citibank

5. How do you know your being sued ?

Was served summons.

6. How were you served ?

In person

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

Yes

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

Just a letter to dispute alleged debt

9. What state and county do you live in ?

Illinois

10. When is the last time you paid on this account. (To determine SOL)

Was within the SOL

11.What is the SOL on the debt ?

5 years

12. What is the status of your case ?

Open Case

13. Have you disputed the debt with the credit bureaus ?

Yes, both original creditor and collection agency

14. Did you request debt validation before the suit was filed ?

Yes

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

After I was served summons I filed an appearance. Went to first court date according to summons and arbitration/trial date was set.

16. What evidence did they send with the summons ?

An affidavit from a legal specialist from Midland Funding and an affidavit of military service.

[weskay9096]

My question is this. When is the answer filed ? At my next court date ? And in what form is it presented ? Can I verbally deny everything in its entirety or is this done in written form ? Is their anything I need to be requesting of Midlands attorneys at this time ? Also, I am a veteran but not active. In their military affidavit it states that the defendant is not in the military of the US.

[debtzapper]

1. What county in IL do you live in?  It's important.

2. Did Midland respond to your debt validation request?

3. You may wish to read these very recent IL posts:

 

http://www.creditinfocenter.com/community/topic/325008-sued-by-velocity-investments-llc-in-illinois/

[weskay9096]

1. LaSalle

2. They did respond with one credit card account statement, an affidavit of sale by a financial account manager of Citibank and a signed statement of bill of sale and assignment from that same financial account manager for citibank, and a certificate of conformity.

Thanks Debtzapper any help is greatly appreciated !!

[weskay9096]

Thanks Debtzapper any help I can get is greatly appreciated !!

[weskay9096]

Ive read the case that you posted. I checked with LaSalle county clerk, they do not have an answer form. Do I need to have a prepared answer before my next court date ? And if so, do I need to attach my sworn affidavit to the answer ?

[weskay9096]

I forgot to mention that included with attorneys for midlands response to my dispute of alleged debt was an " EXHIBIT 1 " Which states that " The individual accounts are described in the final electronic file REDACTED " then a large blank space follows. The next to follow is " and delivered by the bank to the buyer, the same deemed attached hereto by this reference. " Then a large blank box with the word REDACTED inside the box. Also, they did not have the alleged account number anywhere in the complaint.

[debtzapper]

If you haven't already done so, familiarize yourself with this manual .  Page 15 deals with your Answer

 

http://wp.lasallecounty.com/wp-content/uploads/Small-Claims-Manual.pdf

 

 

 

15. APPEARING AND ANSWERING A COMPLAINT

An Appearance and Answer to a complaint may be filed by a defendant in a case where the amount

claimed exceeds $10,000. A DEFENDANT IN A SMALL CLAIMS OR FORCIBLE ENTRY AND

DETAINER ACTION WHERE THE AMOUNT CLAIMED IS $10,000 OR LESS IS NOT REQUIRED

TO FILE AN APPEARANCE OR ANSWER. HOWEVER, THE DEFENDANT MUST PERSONALLY

APPEAR IN COURT ON THE RETURN DATE. If, however, the defendant wants to file any paperwork

into the case, an appearance must be filed and the appearance fee paid at the time of filing.

A defendant in a case where an Appearance and Answer must be filed will be told by the Court

how much time will be allowed to file the Appearance and Answer, usually the defendant is given 14 to 28

days from the return date. There are not pre-designed forms for an Answer. The Answer should set forth

the case number, the names of the plaintiffs and defendants, and an admission or denial of each paragraph

of the complaint. Additionally, the defendant must set forth any affirmative defenses that are planned to

be asserted at trial. The defendant must file an Answer with the Circuit Clerk, and send a copy to each

party or attorney for the party to the case.

An Appearance form is available at the Office of the Circuit Clerk and may be filled out and filed

at the time of filing the Answer. IT IS VERY IMPORTANT TO FILE THIS ANSWER AND A TIME

APPEARANCE REQUIRED. FAILURE TO FILE AN ANSWER AND APPEARANCE COULD

RESULT IN A DEFAULT JUDGMENT BEING TAKEN AGAINST THE DEFENDANT.

A defendant in a Law Magistrate case may wish to retain an attorney for representation or assistance in

the preparation of an Answer. If a defendant chooses to draft the Answer, the defendant may find Nichols Civil

Practice with Forms to be helpful. This form book is located in the LaSalle County Law Library, located in the

Downtown Courthouse, 119 W. Madison Street, 3rd Floor, Ottawa, Illinois. 

[debtzapper]

So, you have the option of filing an Answer or just appearing in court and arguing your case in front of the judge. 

 

 

Well, correction, apparently you already filed an "Appearance" rather than file an "Answer."  Is that right?

[debtzapper]

Section 5/2-606 - Exhibits (735 ILCS 5/2-606)

If a claim or defense is founded upon a written instrument, a copy thereof, or of so

much of the same as is relevant, must be attached to the pleading as an exhibit or

recited therein, unless the pleader attaches to his or her pleading an affidavit

stating facts showing that the instrument is not accessible to him or her. In

pleading any written instrument a copy thereof may be attached to the pleading as

an exhibit. In either case the exhibit constitutes a part of the pleading for all

purposes.

Case Law:

Generally

The statute providing that exhibits are considered to be part of a complaint

generally applies to instruments being sued upon, such as contracts or

agreements. Garrison v. Choh, 308 Ill.App.3d 48, 719 N.E.2d 237, 241

Ill.Dec. 376 (1st Dist. 1999).

 

 

I don't know if their "electronic file " reference strictly complies with the statue, 

 

" EXHIBIT 1 " Which states that " The individual accounts are described in the final electronic file REDACTED " then a large blank space follows. The next to follow is " and delivered by the bank to the buyer, the same deemed attached hereto by this reference. " Then a large blank box with the word REDACTED inside the box. 

[weskay9096]

Can you help me with my defenses. Do not know where to begin. The complaint is as follows.

1. The defendant opened an account with CITIBANK, whereby defendant could charge goods and services to their account and /or receive cash advances.

2. The defendant subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due plantiff of $16xx.xx.

3.Plantiff is the successor in interest of said account having purchased said account in the regular course of business and in good faith and for valuable consideration.

4.Due demand has been made on the defendant to pay this amount and the defendant have failed to do so.

WHEREFORE, Plaintiff prays for judgment against the Defendant in the amount of $16xx.xx plus court cost

 

First of all denying any knowledge or recollection of this debt. I looked at my credit report back in sept and saw this debt reflecting negatively, Didn't dispute it right away but did report it to the credit reporting agencies and a FRAUD Alert was placed on my credit file. It wasn't until I received the summons in Oct that I disputed it with the credit agencies.

And I had no knowledge at anytime that Midland had bought this alleged debt. The only letter or notice I received about this alleged debt was from Bltt and Gaines saying they had been retained by Midland to collect their account.

[weskay9096]

Yes, I filed the appearance and paid the court fee. So if I understand you correctly I don't have to file a formal written answer, since Ive already filed an appearance. Just show up on my next court date and argue my case ?

[debtzapper]

Yes.  You might want to read this IL thread that was won by the OP and do what he did about the Motion for Leave to File Motion and then work up a Motion to Dismiss based on the law and tailored to the specific facts in your case.  On pg 2 of thread as attachments.

 

 

http://www.creditinfocenter.com/community/topic/319068-update-case-dismissed-against-asset-acceptance-in-il/

 

 

You could also include some of the case law that was in the link I gave in # 4, in the Affrmative Defenses, but omit the paragraph about the Statute of Limitations

 

 

HOWEVER,  Midland might have all the required documentation in their referenced "electronic file."  I don't know.  But you could still try.

[weskay9096]

Thank you very much for the great info you have already gave me. I have a couple more questions. First, I only received two documents with the summons and the complaint. One was the affidavit to military service and the second form was an affidavit in support of judgement from an Erin Stocker. The first paragraph of the affidavit reads as follows. " I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, servicer of this account on behalf of plaintiff." She continues on that plaintiff is the current owner of the obligation to sue upon. The second paragraph  she states shes familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The third paragraph states that MCM records show that the defendant owed a balance of $xxxx.xx as of such and such date. But there is no signature of this person (Erin Stocker). At the very bottom of the page are three separate bar codes the first bar code has a set of ten digit numbers. The 2nd bar code has a series of letters and the 3rd bar code has a 7 digit set of numbers. What do these bar codes represent and why isn't her signature on this affidavit ? Also, the alleged account number for the account they allege that I owe is no where on this affidavit. Thank you in advance

[weskay9096]

Debtzapper, do I need to file the motion to leave to file at the clerks office now or can I do this on my next trial date ? Also, I am in need of a sample or template for writing a motion for leave and/or a motion to dismiss. How can I get this form ? Thank you

[debtzapper]

Thank you very much for the great info you have already gave me. I have a couple more questions. First, I only received two documents with the summons and the complaint. One was the affidavit to military service and the second form was an affidavit in support of judgement from an Erin Stocker. The first paragraph of the affidavit reads as follows. " I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, servicer of this account on behalf of plaintiff." She continues on that plaintiff is the current owner of the obligation to sue upon. The second paragraph  she states shes familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The third paragraph states that MCM records show that the defendant owed a balance of $xxxx.xx as of such and such date. But there is no signature of this person (Erin Stocker). At the very bottom of the page are three separate bar codes the first bar code has a set of ten digit numbers. The 2nd bar code has a series of letters and the 3rd bar code has a 7 digit set of numbers. What do these bar codes represent and why isn't her signature on this affidavit ? Also, the alleged account number for the account they allege that I owe is no where on this affidavit. Thank you in advanceDefendants first respond that the trial court properly struck the affidavit because plaintiff did not sign it. While defendants acknowledge this issue was never raised before the trial court, the record copy shows the affidavit was not signed. Plaintiff's statement recites that "I, Michael Chmielewski, having been sworn upon oath state." Plaintiff's name appears as the person who took the oath and is an affidavit despite his lack of signature. Manuel v. McKissack (1978), 60 Ill.App.3d 654, 18 Ill.Dec. 66, 377 N.E.2d 219.

 

 

As to the unsigned affidavit, they can sometimes still be admissible in IL if they state something to the effect, that they are swearing under oath and their name appears as the person who took the oath:

 

 

Dfendants first respond that the trial court properly struck the affidavit because plaintiff did not sign it. While defendants acknowledge this issue was never raised before the trial court, the record copy shows the affidavit was not signed. Plaintiff's statement recites that "I, Michael Chmielewski, having been sworn upon oath state." Plaintiff's name appears as the person who took the oath and is an affidavit despite his lack of signature. Manuel v. McKissack (1978), 60 Ill.App.3d 654, 18 Ill.Dec. 66, 377 N.E.2d 219.

[debtzapper]

Debtzapper, do I need to file the motion to leave to file at the clerks office now or can I do this on my next trial date ? Also, I am in need of a sample or template for writing a motion for leave and/or a motion to dismiss. How can I get this form ? Thank you

 

 

Motion for Leave is here but you need to tailor it to your own county court: You should  send a copy to the Clerk and then a copy to the plaintiff's atty.  The court may or may not grant it.  If they grant it, then you file a Motion to Dismiss.

 

My Motion for Leave of Court

  Motion For Leave of Court Stripped.doc   27.5KB   22 downloads

[weskay9096]

DEBTZAPPER, I read a post from BRUNOTHEJDBKILLER, he said in regards to the "motion to leave to dismiss" to not to forget to attach an order on the motion for the judge to sign. What would the order look like ? And can this be mailed to the circuit clerk or do I have to deliver it in person ? Thanks !

[debtzapper]

Bruno is longer with us.  I think I would just submit the Motion for Leave of Court and await the judge's decision.  If he decides to approve the motion, he will sign the order.  You must be sure to send a copy of your motion to the law firm suing you. Also understand, this is no magic bullet.  For the OP I gave you a link to, he got a dismissal without predjudice. Filing that motion may or may not  work for you.  It's quite possible the judge will either deny your motion or give Midland a chance to amend their complaint and use whatever they have in that "electronic file" of theirs.  But it is worth a try.  And again, you must tailor the Motion specifically for your county court  and your case.

[weskay9096]

Ok, thanks debtzapper. Is their any info that I should be requesting of midlands attorney prior to trial ?

[debtzapper]

Ok, thanks debtzapper. Is their any info that I should be requesting of midlands attorney prior to trial ?

 

No.  There is generally no discovery in IL Small Claims court.

 

 

Small Claim

(IL Supreme Court Rules 281-289) No discovery is allowed in a small claim unless by leave of court. IL SCR 287. The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 281.

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[weskay9096]

Does the affidavit that is attached to the complaint from the jdb employee have to be made in a specific time frame from the date of the complaint ?

[weskay9096]

also, the affidavit that was attached to the complaint comes from a legal specialist, and she has access to pertinent account records for Midland Credit Management, servicer of this account on behalf of plaintiff. Is this a proper affidavit ? Im not being sued by MCM, but by Midland Funding. Heres how the affidavit reads verbatim. " Erin Stocker, whose business address is 16 Mcleland Road Suite 101, St Cloud MN 56303, certifies and says:

1. I am employed as a legal specialist and have access tp pertinent account records for Midland Credit Management, servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiffs behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendants Citibank, N.A. account (MCM Number xxxxxxxxxx) (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on Plaintiffs behalf.

2.  I am familiar with and trained on the manner and method by which MCM creates and maintains its business. The records are kept in the regular course of business. It was in the course of regular business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. The relevant financial information concerning the account includes the following.

3. MCM's records show defendant owed a balance of $xxxx.xx as of xxxx-xx-xx "................. The account number listed in this affidavit is not the alleged account number they said I own. Also, this affidavit is not signed and no were in it does she state that she swears to anything. Any thoughts ?

[debtzapper]

Midland Credit Management services the accounts of Midland Funding