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Being sued by Midland Funding/Jerold Kaplan Law Office - Phoenix, AZ - Please Help!

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Hi everyone,

 

I have been reading through the threads on this forum for the past couple of days and I have found some really promising information. But I am still very confused about what I should do about this court case and how I should write my answer to the courts. I think the more that I read the more that I am getting confused so any help that can be offered would be deeply appreciated. 

 

This is actually against my husband with an account that was opened and charged off before I even knew him. He was married to his first wife when this was opened but they have put this case against him and me instead of her. They do not have my name listed only Jane Doe.

 

 

 

1.    Who is the named plaintiff in the suit?

Midland Funding LLC

 

 

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

Jerold Kaplan Law Offices

 

3. How much are you being sued for?

      $6079.34

 

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

     HSBC

 

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

    We were served at our home

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

     In Person

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

    I believe so. The process server had my husband sign for it.

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

    We had nothing from Jerold Kaplan Law Office. I do believe that my husband received something from Midland but we could not afford to pay it

9. What state and county do you live in?

     Phoenix, AZ.  Maricopa County

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

   

     I was not married to my husband when he had this account. He was married to his first wife and she paid the bills so he does not know when the last payment was made. I believe that I am not responsible for this debt because I was not married to him yet…or at least I think?

 

The affidavit from Midlands Representative that was attached to the summons says that the last payment was made on 02-19-2009 and that the acct was charged off on 09-30-2009.

 

The credit report shows that the last payment was indeed on 02/2009 but it says that it was charged off in 08/2009 not 09/2009.

11. What is the SOL on the debt?

       It is 6 years in AZ as of 2011 but before that it was 3 years. (my husband was living in KS when this was opened not AZ)

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).
 

The Justice court website says that the case status is 01-new case

 

 

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

      No

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.

 

     No

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?

     I received as follows: 20 days. And was served on 12/28/2014

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

​     They attached an affidavit from a legal specialist that is employed by Midland. The affidavit lists the OC as HSBC, shows the last 4 numbers of the account number, the balance of $6079.34, the open date of 12-09-2007, and the charge off date of 09-30-2009, but that is all. 

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@

 

​      They attached an affidavit from a legal specialist that is employed by Midland. The affidavit lists the OC as HSBC, shows the last 4 numbers of the account number, the balance of $6079.34, the open date of 12-09-2007, and the charge off date of 09-30-2009, but that is all.

 

 

Are you sure that the legal specialist says he/she is employed by Midland?  Is it possible that it says he/she is employed by Midland Credit Management (MCM)?

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Hi, The first thing is for you to file an answer.  Also, because like me you are helping hubby  don't forget that both of you need to sign everything.  I also was sued by Midland/Kaplan.   They can be beaten!!1   First if you could post the complaint that will help. 

 

And don't stress we will help.

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Hello,

 

Thank you so much for responding. 

 

BV80: Yes you are correct it foes say MCM. Is Midland Credit Management and Midland Funding two different entities? 

 

Hot in AZ: How do I post the complaint? (sorry I am new and am still learning how to use the system). Do I need to black out our names on the complaint before posting?

 

Thank you so much for your help. I am so nervous about digging a deeper hole. 

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Ok I will black everything out and scan it in. My husband does not remember ever making a payment on the account because his ex-wife is the one that use to pay the bills. 

 

The complaint says that the last payment was on 02/19/2009. The date on the credit report also says 02/2009. 

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@

 

 

BV80: Yes you are correct it foes say MCM. Is Midland Credit Management and Midland Funding two different entities? 

 

 

MCM is the servicer for Midland Funding.   Does the affiant (legal specialist) say that he/she works for Midland?   Or for MCM?

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The huge mistake they have made is including you on the suit, instead if your husband's ex. The only SOL date that matters in this case is March 2015.

 

What if the OP strings this along until March (answer, mediation, etc.) and then has an "ah ha!" moment and alerts the court and plaintiff that they have sued the wrong party? At that point it may be too late to amend and they will have to refile - when the debt is officially outside of SOL.

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Hi Everyone

 

Thank you so much for your help and I am sorry for my delay in responding. I have been shuttling my kiddos around everywhere today so this is the first time I have had to get back online. 

 

I am currently fighting with both of my printers to get one of them to work so that I can scan those documents in. I will hopefully have the scanner issue resolved here shortly and everything that they sent me uploaded for your review. 

 

They did not send us any copies of the HSBC agreement only that affidavit. My husband doesn't have any paperwork on this, and doesn't really even remember the card since it was from when he was married to his first wife. So I struck out there trying to see if he still had anything on the account. 

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The huge mistake they have made is including you on the suit, instead if your husband's ex. The only SOL date that matters in this case is March 2015.

 

What if the OP strings this along until March (answer, mediation, etc.) and then has an "ah ha!" moment and alerts the court and plaintiff that they have sued the wrong party? At that point it may be too late to amend and they will have to refile - when the debt is officially outside of SOL.

 

Oh wow I had not thought of that. So I should not let them know that I am the wrong person then? 

 

The SOL cant be the 3 years since the law was not amended until 2011? 

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We have fought the SOL battle here for the past couple of years. The court has said there is zero chance of using three year SOL on anything that defaulted after July 2008. Basically, if the three years had not run by July, 2011, then the six year SOL applies.

 

Let's get some more feedback from the group, but I have read items from AZ debt collection attorneys and the Community Property thing is the biggest "gotcha" for them. My thought is that they can amend the complaint, but if this thing gets to the mediation phase it could be argued that is not fair to husband's ex (the correct co-defendant) and should be dismissed and refiled.

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Because az is a community property state, they have to name both spouses in the lawsuit even though the debt preceedes one spouse. When it comes time to collect on the judgment, that's the only time the court is going to (should) care that you did not help create the debt. At that point they can only legally garnish his wages and any separate property he has (i.e. acquired before your marriage or left to him in a will or something; anything else the two of you possess is fair game).

In you answer you would admit being married but deny the debt is a community debt and assert the alleged debt could not have been incurred after your marriage.

If the JDB never asks for the ex's info, it would be up to you and hubby to drop the dime on the ex. Otherwise, hubby will end being the only one obligated to repay the debt.

Of course, I say all of that without having seen the complaint. They may have goofed up in the way they made the allegations which could create other options for you.

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That seems strange. If the ex is liable for this debt I'm surprised the process would proceed without her involvement. So she (ex) can be subject to a judgment that hubby may have caused by intentionally losing the case?

 

For example, if I was divorced and my ex got sued, she could totally screw up the case (admit to 90% interest, etc) and leave me holding the bag?

 

I'm still wondering what happens if they string this along until March and then inform everyone that the wrong party was sued. What if they got an affidavit from the ex admitting to being a party of interest, but requesting that the case be refiled so she could defend it from the beginning?

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The process would only proceed without an interested party's involvement if no one raised the issue.

Hopefully you wouldn't leave your defense in the hands of your ex. Each party has a right to defend themselves independent of any other parties. I know there is a way to have defendants prosecuted in two separate trials. They do that in criminal trials all the time. I'm not sure how or if this could be applied to a civil action. E.g. "your honor, she doesn't like me and her testimony could incriminate and prejudice me." Sounds good when I read it. Someone should do a search of az case law and rules of procedure for "joinder of parties".

In your scenario of one party intentionally greneding the case, it's a mutually assured destruction - she would be screwing herself, even if she was able to bring you down with the ship.

There is also an affirmative defense of "failure to name a party of interest" or something to that effect. Again I haven't researched it to know how or even if you can use it in AZ or civil cases, etc.

I don't have time right now to research all of this, but @Mommyof3D's you now have some things to research.

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The process would only proceed without an interested party's involvement if no one raised the issue.

Hopefully you wouldn't leave your defense in the hands of your ex. Each party has a right to defend themselves independent of any other parties. I know there is a way to have defendants prosecuted in two separate trials. They do that in criminal trials all the time. I'm not sure how or if this could be applied to a civil action. E.g. "your honor, she doesn't like me and her testimony could incriminate and prejudice me." Sounds good when I read it. Someone should do a search of az case law and rules of procedure for "joinder of parties".

In your scenario of one party intentionally greneding the case, it's a mutually assured destruction - she would be screwing herself, even if she was able to bring you down with the ship.

There is also an affirmative defense of "failure to name a party of interest" or something to that effect. Again I haven't researched it to know how or even if you can use it in AZ or civil cases, etc.

I don't have time right now to research all of this, but @Mommyof3D's you now have some things to research.

Thank you Harry I will research this and post what I find. I finally ended up digging out one of my old printers and that one is working to scan so I am scanning the documents right now. 

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Ok, that affidavit is less effective than some I have seen. You have a decent shot of defeating summary judgment. The problem you could run into down the line is if they bring in a live witness for trial.

You are at a crossroads. If you want to go arbitration, you have to notice the court in lieu of an answer or very soon after you file an answer. If you wait to long to initiate arbitration the court can decide you waived your right. The problem with arbitration is if Midland follows you into arbitration, there is possibility you could end up paying their fees which effectively negates the whole point of using arbitration. Also, there is a school of thought that by electing arbitration you are admitting the JDB owns the debt.

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I could not open that document, but in the question of a live witness at trial , can they bring in a telephonic one??Also, they can file a sworn  notarized affadavit of denial of the debt, as she says not hers, and he never made pmts.  Also allegedly opened in another state.  She first should make sure that they were married after the default I think???

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I noticed a small detail at the bottom of the affidavit. It has a number and then a name TRAKamerica. When I looked up TRAKamerica it appears to be a robosigner not MCM. I think we should research the actual affiant and notory. I think we are going to find that they are not employees of MCM. It may be nothing or something useful.

Remember Midland and MCM are under court order to not make false affidavits. as far as the SOL question, if the OP's hubby was inkansas until 2-19-12 then sol would have already run there it would not be applicable to AZ's 6 year SOL because sol that has already run cannot be revived.

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