mama21

Stay at Home Mom Served Summons by Midland Funding in AZ - new and not sure what to do

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Hello everyone, so this morning my bother who is living with me accepted a Summons to appear in Civil Court regarding a Suit by Midland Funding LLC.  They are stating that the debt is with FIA Card Services, which I never heard about, until I did some research and found out they are tied to BOA.

 

I live in Tucson AZ, and from the research I did I do believe they are within the SOL.  The account was 180 delinquent and closed May 2010 and the SOL here in AZ is 6 years I believe.  They are saying I owe $7,370 and do not explain anything about interest or other fees.  I am being sued on two accounts - 1. Breach of Contract and 2. Account Stated.  

 

They say I have 20 days to respond with an answer, and they did not include any evidence to this debt being mine.  From my own research i do believe it derives from the BOA credit card I had.  My husband I used that card to help pay for our wedding, and then my husband got out of the military during the Gov Job hold and we couldn't find a job.  The card was then used to pay utility bills and food and we got in a spot where we had to let the card go.

 

I'm now a stay at home mom with a 2 year old and have enough craziness in my life before this came.  My husband and I were on a road to credit repair and now I was served with this summons.

 

I have read a few posts in this forum, however, just seem a little bit lost and overwhelmed.  We don't have the kind of funds to pay $7,370 and don't want to file a BK considering we have been working on improving our scores.

 

Any help would be much appreciated.

 

 

 

I see people answering these questions so thought I would do the same. 

 

1. Who is the named plaintiff in the suit? Midlund Funding LLC

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

3. How much are you being sued for? $7,370

4. Who is the original creditor? (if not the Plaintiff) Fia Card Services - formally BOA

5. How do you know you are being sued? (You were served, right?) My brother accepted these papers at the door.

6. How were you served? (Mail, In person, Notice on door) In person, to my brother, for me .

7. Was the service legal as required by your state? I'm not sure

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Arizona, Pima county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  November 2009

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  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I've just been served at this point and nothing else.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, we got in spot where we couldn't pay and have never heard anything from BOA or Fia Card Services

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? 

20 days.


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

 

- There is nothing. No affidavit, no contract, nothing.

 

Any words of advice would be great.  I contacted my sisters BK attorney who was of no help, he just stated that I should call and try to settle, or file BK.

 

Thank you so much for taking the time and reading this post.
 

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My thought is to still MTC Arb but I am not sure if this agreement language would satisfy the court ruling? 

http://www.federalreserve.gov/CreditCardAgreementsContent/creditcardagreement_514.PDF 

 

"If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."
 

"Arbitration clause naming NAF as arbitrator is unenforceable."

http://pubcit.typepad.com/clpblog/2010/04/arbitration-clause-naming-naf-as-arbitrator-is-unenforceable.html

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Thanks so much Cliff2009, however, I'm bit overwhelmed by all the legal terms, I will reread the posts to hopefully make sense of it, but I'm not exactly sure what you are saying.

 

So what should be the next step I take.

 

Thanks so much for your time.

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He is thinking you might want to think about compelling arbitration. AZ is a very creditor friendly state. However BofA took out all their arb agreements in 2010. If that is something you want to consider, we would have to find a copy of the card agreement prior to 2010 with an arb clause, and with a survivabilty clause.

There are quite a few AZ threads going on now, you can start there until some others weigh in. I'll look around to see if I can find an agreement. Was this a M/C or VISA.

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@

 

In Arizona, it's best to remove yourself from the Courts Jurisdiction.  Meaning, it is more advantageous to you, if you try to get this case into Arbitration. 

 

In order to remove yourself from the courts jurisdiction, you must do the following things:

 

- File a Motion to Compel Contractual Arbitration & Dismiss/Stay with the court (send a copy cmrr to the attorney who sued you)

- Request a hearing on your motion to compel/dismiss (this will largely be based on your rules of civil procedure)

 

When was the account opened, what year?  I have a 2003 BOA agreement with JAMS, I can send you.  Otherwise, you'll have to argue in your Motion to compel Arb, that the NAF is unable to arbitrate, although JAMS is a viable alternative.  The language in the 2009/2010 FIA Agreement says that "If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."

 

@Cliff2009

 

The permissive language in the arb clause, should be sufficient to maintain Arbitration in an alternate forum, such as JAMS.  Although, the OP will likely have to initiate with JAMS before filing her MTC.

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@

 

In Arizona, it's best to remove yourself from the Courts Jurisdiction.  Meaning, it is more advantageous to you, if you try to get this case into Arbitration. 

 

In order to remove yourself from the courts jurisdiction, you must do the following things:

 

- File a Motion to Compel Contractual Arbitration & Dismiss/Stay with the court (send a copy cmrr to the attorney who sued you)

- Request a hearing on your motion to compel/dismiss (this will largely be based on your rules of civil procedure)

 

When was the account opened, what year?  I have a 2003 BOA agreement with JAMS, I can send you.  Otherwise, you'll have to argue in your Motion to compel Arb, that the NAF is unable to arbitrate, although JAMS is a viable alternative.  The language in the 2009/2010 FIA Agreement says that "If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."

 

@Cliff2009

 

The permissive language in the arb clause, should be sufficient to maintain Arbitration in an alternate forum, such as JAMS.  Although, the OP will likely have to initiate with JAMS before filing her MTC.

That was my thought, the only thing is the agreement I posted was from 12/2009 (I think)  a month after last payment, would it still work?

To the OP, was it a FIA card or B of A at time of last payment?

 

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Thanks so much Cliff2009, however, I'm bit overwhelmed by all the legal terms, I will reread the posts to hopefully make sense of it, but I'm not exactly sure what you are saying.

 

So what should be the next step I take.

 

Thanks so much for your time.

Let's get a little more feedback for now but it sounds like you will want to file a motion to compel arbitration as @shellieh98 said. Just pay attention and do as the experts here tell you, it should end up in your favor. 

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That was my thought, the only thing is the agreement I posted was from 12/2009 (I think)  a month after last payment, would it still work?

To the OP, was it a FIA card or B of A at time of last payment?

 

 

Yes, a 2009 agreement would work.  Potentially a previous agreement.  It depends on when the OP opened the account.  

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@

 

In Arizona, it's best to remove yourself from the Courts Jurisdiction.  Meaning, it is more advantageous to you, if you try to get this case into Arbitration. 

 

In order to remove yourself from the courts jurisdiction, you must do the following things:

 

- File a Motion to Compel Contractual Arbitration & Dismiss/Stay with the court (send a copy cmrr to the attorney who sued you)

- Request a hearing on your motion to compel/dismiss (this will largely be based on your rules of civil procedure)

 

When was the account opened, what year?  I have a 2003 BOA agreement with JAMS, I can send you.  Otherwise, you'll have to argue in your Motion to compel Arb, that the NAF is unable to arbitrate, although JAMS is a viable alternative.  The language in the 2009/2010 FIA Agreement says that "If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."

 

@Cliff2009

 

The permissive language in the arb clause, should be sufficient to maintain Arbitration in an alternate forum, such as JAMS.  Although, the OP will likely have to initiate with JAMS before filing her MTC.

lol

Here we go again....

 

@

The only things you can file in response to a complaint is:

1.) An answer

2.) a motion to dismiss

3.) a motion for a more definitive statement.

 

If you file anything else you will be considered in default and judgment could automatically be entered against you.

 

I completely agree that you should pursue arbitration, however the above strategy could end up with a default judgment against you.

 

If you want to follow the statutes/rules, you should:

1.) file an answer denying everything but your name and then include a statement that you intend to pursue your contractual arbitration rights.

2.) immediately (TODAY) send a certified letter to Midland's lawyers notifying them you demand arbitration to settle the lawsuit they have filed against you.

3.) wait a few days and then file a motion to compel arbitration.

 

While technically not proper, you can alternatively file a motion to compel arbitration with your answer (I'd still send the letter to Gurstel in this case) and it will probably be granted, but whatever else you do, you have to file a proper answer.

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lol

Here we go again....

 

@

The only things you can file in response to a complaint is:

1.) An answer

2.) a motion to dismiss

3.) a motion for a more definitive statement.

 

If you file anything else you will be considered in default and judgment could automatically be entered against you.

 

I completely agree that you should pursue arbitration, however the above strategy could end up with a default judgment against you.

 

If you want to follow the statutes/rules, you should:

1.) file an answer denying everything but your name and then include a statement that you intend to pursue your contractual arbitration rights.

2.) immediately (TODAY) send a certified letter to Midland's lawyers notifying them you demand arbitration to settle the lawsuit they have filed against you.

3.) wait a few days and then file a motion to compel arbitration.

 

While technically not proper, you can alternatively file a motion to compel arbitration with your answer (I'd still send the letter to Gurstel in this case) and it will probably be granted, but whatever else you do, you have to file a proper answer.

 

Oh @Harry Seaward, you're so cute sometimes.  I'm pretty sure there was a motion to dismiss in my statement above.  

 

She can file a MTC/MTD in lieu of answer.  Her dismissal claim is the Court does not hold subject matter jurisdiction, as they are bound to contractual arbitration.  When a Motion to Dismiss is filed, the court extends the time to answer If the court denies her MTD/MTC.  If the court grants the MTD/MTC, then answering becomes moot, as the Court no longer has jurisdiction.

 

Either combination MTC/MTD  ANSWER/MTC/MTD will work. 

 

- File a Motion to Compel Contractual Arbitration & Dismiss/Stay with the court (send a copy cmrr to the attorney who sued you)

 

 

At least you have switched the timing for "waiting" period to a "few days" instead of your normal 3-4 weeks statement.  

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Wow, I am a little overwhelmed with all the people that have weighed and in took there own time to help.  I am very appreciated and although I still feel lost I am educating myself so that I am able to take the correct actions.  I will try to respond to each and everyone but forgive me if I pass over you.

 

@shellieh98 - thank you for clearing things up, I am not familiar with the legal terms yet but am getting more familiar.  I now know what MTC arbitration is...lol.  I don't know if it was a M/C or a Visa it has been 5 years since I have seen the card.  Is this something I should find out and how do I go about finding the card agreement so I can know if I can "MTC ARB"

 

Thanks - shellieh98

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Oh @Harry Seaward, you're so cute sometimes.  I'm pretty sure there was a motion to dismiss in my statement above.  

 

She can file a MTC/MTD in lieu of answer.  Her dismissal claim is the Court does not hold subject matter jurisdiction, as they are bound to contractual arbitration.  When a Motion to Dismiss is filed, the court extends the time to answer If the court denies her MTD/MTC.  If the court grants the MTD/MTC, then answering becomes moot, as the Court no longer has jurisdiction.

 

Either combination MTC/MTD  ANSWER/MTC/MTD will work.

 

What you said was a motion to compel and a motion to dismiss/stay. "/" means "or" but you cannot file a motion to dismiss or a motion to stay.  You must file a motion to dismiss if you don't file an answer.

 

BUT, I don't believe a motion to dismiss is proper on a case going to arbitration.  A motion to stay with an answer and motion to compel will probably work, but not a motion to dismiss.  The reason is because the court has to order the parties into arbitration and jurisdiction is then kicked back to the court after the arbitrator renders his decision.

 

Go ahead and give the motion to dismiss a try.  Worst case is the court denies it and then you have 20 days to file an answer.

 

At least you have switched the timing for "waiting" period to a "few days" instead of your normal 3-4 weeks statement.

I don't think I ever said 3-4 weeks.  It certainly wasn't "normal" for me to say that if I ever did.

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@ coffee_before_tea - wow, thank you so much for all this information, once I taught myself MTC and arbitration and other legals terms your post made more sense.  However, your statement says that I should initiate with JAMS before I MTC?  Is this something I should do tomorrow, is initiate with JAMS and if so what exactly do I tell them.

 

Thanks 

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@Cliff2009 - it was a BOA card when I made my last payment, I had no idea what FIA was until I started working on improving my credit 6 months ago.  At first I thought it was an error, then I looked into it and found the FIA is linked to BOA.

 

Thanks

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@ coffee_before_tea - I thank you again for your input, here are the major dates I found

 

Date Opened - 8/25/2008

Last Payment - 10/2009

Major Delinquency - 5/2010

 

Thank you

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So maybe this is a dumb question, but I think I have two of them...lol

 

A - what should my answer be, is it as Harry Seaward stated - deny everything except for my name, is there a certain letter outline I should use for this, and should I deny even though if it is the BOA card, I know that card was mine?

 

B - if I MTD under what deficiency is the motion based upon.

 

I am willing to do whatever it takes and am very thankful for all the feedback.  I just want to make sure I take the proper steps.  I know I had a BOA card, and I know I let it go.  However, I know I can't affor a $7,000 suit and am willing to do whatever it takes.

 

Thank you so much.

 

Please, if one of you great minded people could guide me to what step 1 is, I want to be on top of this and will take that step tomorrow.  If it is to send an answer, is there a formal letter outline I should use and what exactly do I say, if it is to MTC or MTD which one do I do and how do I go about doing it.

 

Once again overwhelmed by all the generosity.  

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@ coffee_before_tea - I just reread your post, and see that you are stating to MTD under the deficiency that the  Court does not hold subject matter jurisdiction?

 

Thanks

 

I'm just trying to find out what my first step is so I can take action tomorrow.

 

Bless you all for your help.

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So maybe this is a dumb question, but I think I have two of them...lol

 

A - what should my answer be, is it as Harry Seaward stated - deny everything except for my name, is there a certain letter outline I should use for this, and should I deny even though if it is the BOA card, I know that card was mine?

 

Yes, deny everything to do with the debt.   If you admit owing the debt all they have to do is show a bill of sale and they have won their case.

 

B - if I MTD under what deficiency is the motion based upon.

 

Lack of jurisdiction

 

I am willing to do whatever it takes and am very thankful for all the feedback.  I just want to make sure I take the proper steps.  I know I had a BOA card, and I know I let it go.  However, I know I can't affor a $7,000 suit and am willing to do whatever it takes.

 

Thank you so much.

 

Please, if one of you great minded people could guide me to what step 1 is, I want to be on top of this and will take that step tomorrow.  If it is to send an answer, is there a formal letter outline I should use and what exactly do I say, if it is to MTC or MTD which one do I do and how do I go about doing it.

 

Once again overwhelmed by all the generosity.  

I say file an answer and a motion to compel arbitration.  I really don't think the motion to dismiss will be granted because the court does have jurisdiction until its ordered into arbitration and then receives jurisdiction back after the arbitration ruling.  Also, if you are claiming the 'dispute' is subject to arbitration, the other likely possibility is the court will want to see something evidencing this and that the case is currently in active arbitration (someone has at a minimum initiated a case).  But as I said before, it won't hurt anything to try.

 

Just be sure to file an "answer" or "Motion to dismiss".  Anything else will set you up for a default judgment.

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@ coffee_before_tea - I just reread your post, and see that you are stating to MTD under the deficiency that the  Court does not hold subject matter jurisdiction?

 

Thanks

 

I'm just trying to find out what my first step is so I can take action tomorrow.

 

Bless you all for your help.

 

Is the deadline today? If not don't rush, get this done properly. The court website may have a template Answer form. @Harry Seaward?

You may have had a BOA card but are you sure that Midland has the right one and everything is correct? Hence denial. 

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At the risk of confusing the OP, this is what I would do.

 

File a MOTION TO DISMISS OR IN THE ALTERNATIVE STAY CASE, PETITION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION.

 

You would not need to file an answer giving any jurisdiction to the court.  What you are saying is the proper forum for this case is in JAMS and not court.  No answer is needed with a motion to dismiss, if the judge denies it you have more time to file an answer.  I wouldn't chance it.

 

If the judge stays the case (usually for like 30 days, or 90 days) I would then initiate with JAMS.  If the Judge dismisses the case, I would wait for the JDB to initiate.  

 

The very first thing I would do though is find an agreement that has a JAMS clause that fits your card.  It's all a mute point unless you can find that.  Once you get that, we can help you with the motion.

 

Sorry Harry I respectfully disagree about filing an answer.  He/She does not need one if a Motion to dismiss or in the alternative stay case is filied.  You want a dismissal, but some courts won't dismiss, so you give them the alternative to stay case.

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@ Cliff2009 - No the deadline isn't today, I just got served yesterday.  I'm just not one to wait on something of this importance so I want to make sure I'm on top of it.  However, I do want to make sure I do the right thing.  

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@ Shellieh98 - How do I go about finding the JAMS clause, is the post by Cliff2009 not sufficient.

 

"If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."

 

Thanks

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I don't know where this idea came from that you have to file a motion to dismiss or otherwise get jurisdiction away from the court in order to get the case into arbitration, but it's just wrong, at least in Arizona.  Our court rules and statutes talk about ordering lawsuits into arbitration after litigation has been commenced and there is nothing in there that says this cannot happen while a court has jurisdiction over a case.  In fact, if the court does not have jurisdiction it cannot order parties into arbitration.  Further, the court knows if it were to dismiss the case when there is no arbitration case pending, there's nothing to ensure the parties do in fact follow through with arbitration.  There is nothing about filing an answer that constitutes waiver of your arbitration rights, especially if you assert those rights within the answer.

 

If the arbitration case had already been initiated and underway when the lawsuit was filed, then sure, file a motion to dismiss for lack of jurisdiction, but filing a motion to dismiss otherwise is a waste of time.

 

If you want to preserve your 'lack of jurisdiction' assertions for arbitration while at the same time get a court to order the parties into arbitration, the proper way to do that is to file an answer and include a statement that you intend to exercise your contractual arbitration rights.  Then file a Motion to Compel arbitration in accordance with A.R.S. §12-1502(A ).

 

 

Sorry Harry I respectfully disagree about filing an answer.  He/She does not need one if a Motion to dismiss or in the alternative stay case is filied.  You want a dismissal, but some courts won't dismiss, so you give them the alternative to stay case.

You can disagree all you want.  The court rules do not permit a motion to stay as a valid response to a complaint, so there is no "alternate" there.  In response to a complaint, the court can only properly consider the motion to dismiss.

 

Also, our statutes include an AUTOMATIC stay of proceedings immediately when a motion to compel arbitration is filed.  So again, if the plan is to get Midland into arbitration, a motion to stay in response to a complaint is improper, superfluous and a waste of time.

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I don't know where this idea came from that you have to file a motion to dismiss or otherwise get jurisdiction away from the court in order to get the case into arbitration, but it's just wrong, at least in Arizona.  Our court rules and statutes talk about ordering lawsuits into arbitration after litigation has been commenced and there is nothing in there that says this cannot happen while a court has jurisdiction over a case.  In fact, if the court does not have jurisdiction it cannot order parties into arbitration.  Further, the court knows if it were to dismiss the case when there is no arbitration case pending, there's nothing to ensure the parties do in fact follow through with arbitration.  There is nothing about filing an answer that constitutes waiver of your arbitration rights, especially if you assert those rights within the answer.

 

If the arbitration case had already been initiated and underway when the lawsuit was filed, then sure, file a motion to dismiss for lack of jurisdiction, but filing a motion to dismiss otherwise is a waste of time.

 

If you want to preserve your 'lack of jurisdiction' assertions for arbitration while at the same time get a court to order the parties into arbitration, the proper way to do that is to file an answer and include a statement that you intend to exercise your contractual arbitration rights.  Then file a Motion to Compel arbitration in accordance with A.R.S. §12-1502(A ).

 

 

You can disagree all you want.  The court rules do not permit a motion to stay as a valid response to a complaint, so there is no "alternate" there.  In response to a complaint, the court can only properly consider the motion to dismiss.

 

Also, our statutes include an AUTOMATIC stay of proceedings immediately when a motion to compel arbitration is filed.  So again, if the plan is to get Midland into arbitration, a motion to stay in response to a complaint is improper, superfluous and a waste of time.

 

No its not a waste of time.  If you file the MTD and COMPEL in one motion, the court can do 1 of 3 things.  Dismiss and grant the compel, or Stay and grant the compel. Deny the motion all together, where an answer would be needed at that point.

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