Sign in to follow this  
Trooper

Need help in Texas fighting Midland Funding

Recommended Posts

Hello, I just received a summons from Midland Funding and I need help.  It's for a Sears account.  

 

I was going to be without internet for 3 months, so I set up my Sears account payments in advance.   I found a place to use internet about half way through the 3 months and found out Sears had kicked two of my payments out and had placed late fees on my account and raised my interest.  I tried to get online to fix it and they wouldn't let me on my account without stating that it was my fault my payments were late.   So I tried calling them and no one could or would help me.   I finally gave up.    

 

It shows I owe  $3200.00 but my credit limit was never over about $2600.00 and I had paid some of my balance down, so anything above that is all fees.  

 

I am a widowed mom of 3, and I don't have any income other than Social Security survivor benefits for one child and myself as guardian.  And about $400 a month from a Government retirement account.   I don't know if this makes a difference or not.   

 

I have looked through this forum and I have copied the letter that Texasrocker had posted in his #10 post.  And I have read most of the forums for Texas and Midland on this site.   

 

I noticed the example I saw was a little different in the wording than mine in the Facts paragraph 6.  Would the example letter posted still work?

 

Paperwork I was served:

 

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.)

Rausch, Sturm, Israel, Enerson & Hornik, LLC

15660 N Dallas Parkway, Suite 350, Dallas, Texas 75248

 

3. How much are you being sued for? 

$3203.33

 

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

Sears

 

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

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

 

9. What state and county do you live in?

Texas, Wise

 

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

2 1/2 years ago

 

11. What is the SOL on the debt? To find out: 

4 years

 

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).  I couldn't find anything for our small court online.

 

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? 

20 days from serve date which was 8/14.   I have been trying to post but this site wouldn't allow me.

 

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

 

Don't see anything

Share this post


Link to post
Share on other sites

The first thing you should do is call midland.  You could be one of their hardship cases.  If you do this, do not sign any sort of stipulation that says you owe, that is important because then they could come back on you later.  Just tell them you think you qualify for their hard ship case, and want to know what paperwork they need.
SSI would be exempt from any type of garnishment should they get a judgement, I do not know about the retirement money.

 

If you do not qualify, we need to work on getting an answer in for this suit so they don't get a default judgement against you.  try the above first, then come back if that didn't work.  Here is the link that tells about it.

https://www.midlandcreditonline.com/who-is-mcm/our-pledge/#article3

  • Like 1

Share this post


Link to post
Share on other sites

I finally got someone to answer the phone.   It has taken awhile.   They put me on hold and then hung up on me before answering.  

Basically they stated that they wouldn't stop proceedings, but I could make a hardship payment of $25.00 a month.   I know that if i make any payments, it will start this procedure all over again.  

 

What is my next step?

Share this post


Link to post
Share on other sites

I would write them a letter, and include their own consumer bill of rights.  Do that, but continue to fight it.

Who did you talk with, the lawyer, or midland?  Write to midland.

 

ok in the mean time you need to either answer the lawsuit, or demand arbitration by filing a motion to dismiss or in the alternative stay case and petition to compel arbitration.  

 

@texasrocker has helped many people fight texas suits, and I do not think he is a fan of arbitration, but I think midland would not go to arb for that amount of money.  read other texas threads, and then read some arb threads.  Decide if you want to fight it in court, or demand arb, then we can help guide you.

  • Like 1

Share this post


Link to post
Share on other sites

I called Midland and they directed me to the lawyers.  So neither is very helpful at this point.  I think I need to send an answer to the courts or I'm going to be in trouble here.   

Share this post


Link to post
Share on other sites

You need to edit the wording to coincide exactly with the wording and paragraph designation in the plaintiff's original petition of which you were served. 

 

Absolutely do not make any payments to them and don't call them anymore.

 

I can send you discovery that Rausch, Sturm, Israel, Enerson & Hornik will not want to answer but first need to know if  you are being sued in a county or JP court because if it is JP court you now must get the court's approval to begin discovery. 

 

You very well may be considered by the court to insolvent and therefore "judgment proof."  Explain your income and living situation to the court when you file your answer.

  • Like 2

Share this post


Link to post
Share on other sites

Grounds for Dismissal for Lack of Standing

 

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead, Plaintiff alleges "Defendant's account has been assigned to Plaintiff, and Plaintiff is the current holder of Defendant's accounts" See Plaintiff's Original Petition under "Facts" paragraph 6. There is no allegation or statement as to who was the seller, and there is no way from these pleadings to determine if Plaintiff purchased the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit.

 

 

Mine is stated:  On or about March 14, 2014, Citibank, N.A.  (Sears Premier Card) assigned Defendant's credit account to Plaintiff, and Plaintiff is the current holder of Defendant's account and the proper party to bring this lawsuit. 

 

My question is, since it states Citibank, does that void the statement that there is no allegation of who was the seller?  Or is this alright to use?

Share this post


Link to post
Share on other sites

Hopefully a quick question.   I am reading that I have to send a set of answers to Midland's discovery questions by 30 days after being served.  My question is should I send them with my answer to the courts which is due 20 days after being served?  And can I or should I send my request for Discovery in the same envelope?  

 

Thank you all for all the help, I was starting to feel like I was drowning with all this coming at me.   

Share this post


Link to post
Share on other sites

I hope these questions aren't too stupid.   I am running on very little sleep and trying not to make any mistakes.  I've read everything I can but I am still afraid to make a costly mistake.  

Share this post


Link to post
Share on other sites

@Trooper

 

Mine is stated:  On or about March 14, 2014, Citibank, N.A.  (Sears Premier Card) assigned Defendant's credit account to Plaintiff, and Plaintiff is the current holder of Defendant's account and the proper party to bring this lawsuit. 

 

My question is, since it states Citibank, does that void the statement that there is no allegation of who was the seller?  Or is this alright to use?

 

 

They have alleged that they purchased the account from Citibank and own the account.   Unless your court rules say that they have to attach proof of ownership to the complaint, I doubt a MTD for lack of standing would be granted.

  • Like 1

Share this post


Link to post
Share on other sites

There is no rule that says they must attach proof of the sale to the complaint.   "...there is no allegation of who was the seller" means that the allegation is too vague as the person who handled the sale is not identified.    This is just another item in the list of examples that they cannot prove that they purchased the debt. You are showing the court that If they did indeed purchased the debt from Citibank then there should be no question as to whom the specific person was that authorized the sale. 

  • Like 1

Share this post


Link to post
Share on other sites

I have sent off the Discovery and the Answer today.  I now have to do the Response page and send it.   I was sitting here thinking about this account, and I don't even know if it was my account or my late husbands account that I was paying off.  I believe this may have been his account.  So there may not be any way for them to produce paperwork with my signature on it.  I guess i wait and see.  

 

Thank you for your help, I wouldn't have made it this far without it.   

Share this post


Link to post
Share on other sites

Now I am sending the answers to their Discovery.  Do I need to format it the same way I did the other papers.   Like Midland Funding vs me, Court name, etc.?

 

Does the court also get a copy of my answers to their Discovery?

Share this post


Link to post
Share on other sites

You only send the discovery to the lawyer, not the court. Do you want to post your discovery questions and how you answered first? If you answered denying, there is specific ways you need to word it.

Share this post


Link to post
Share on other sites

I used the one I found here.

 

RESPONSES FOR REQUEST FOR DISCLOSURE-

 

A.  my name

 

B.  Unknown at this time.

 

C.  This is a lawsuit arising out of alleged consumer credit card debt.  Plaintiff is not a financial institution,

    not an original creditor, and not the lender or issuer of any credit card.  Instead Plaintiff claims to be

    the owner through an assignment but does not identify who assigned the debt.  Plaintiff has only vaguely

    alleged an assignment and has not produced any evidence of its alleged ownership of the debt.

 

    Defendant generally denies the allegations contained in Plaintiff's Original Petition and demands that

    Plaintiff be required to appear and provide strict proof of said allegations.

 

    Defendant denies that Plaintiff has standing to assert any claims against Defendant arising out of and debt

    or obligation owed by Defendant to any original creditor and therefore does not have standing to bring

    this lawsuit.

 

D.  Defendant has not made any claim for economic damages.  Defendant asserts that Plaintiff has no damages.

 

E.  my name and address

    Midland Funding LLC, 8874 Aero Dr.,  San Diego, Ca92123

 

F.  Defendant has no testifying experts at this time.

 

G.  Unknown.

 

H.  Unknown.

 

I.  Unknown.

 

J.  Not applicable.

 

K.  Not applicable.

 

L.  Unknown.

 

 

RESPONSES TO REQUEST FOR PRODUCTION-

 

1.  Defendant objects to this request as overbroad and as an impermissible fishing expedition. If plaintiff were

    in fact the rightful creditor it would already have copies of these documents in possession.

 

2.  Defendant objects to this request as overbroad and as an impermissible fishing expedition. If plaintiff were

    in fact the rightful creditor it would already have copies of these documents in possession.

 

3.  Defendant objects to this request as overbroad and as an impermissible fishing expedition. If plaintiff were

    in fact the rightful creditor it would already have copies of these documents in possession.

 

4.  Defendant objects to this request as overbroad and as an impermissible fishing expedition. If plaintiff were

    in fact the rightful creditor it would already have copies of these documents in possession.

 

5.  Defendant has not been able to identify the alleged account that is the subject of this lawsuit from the

    plaintiff's petition and from this request.  Defendant will supplement.

 

6.  Defendant has not been able to identify the alleged account that is the subject of this lawsuit from the

    plaintiff's petition and from this request.  Defendant will supplement.

 

7.  Defendant has not yet made such any such determination and will supplement.

 

8.  Defendant objects on the basis that these documents are already in the possession of the plaintiff and

    are equally or more readily available to plaintiff.  These include the plaintiff's discovery requests which

    purport to require his his responses to the request for disclosure, requests for production and requests for

    admission when no such verification is required.

 

9.  Defendant has not yet made such any such determination and will supplement.

 

10. Defendant has not yet made such any such determination and will supplement.

 

11. Defendant has not yet determined whether to bring a counterclaim.  Defendant will supplement in the event

    he brings a counterclaim.

 

12. Defendant has not filed a counterclaim as of this time.

 

13. Defendant objects to this request as overbroad and as an impermissible fishing expedition. If plaintiff were

    in fact the rightful creditor it would already have copies of these documents in possession.  Subject to

    these objections Defendant will supplement once such documents are obtained.

 

14. Defendant will supplement.

 

15. Defendant objects to this request as impermissibly shifting the plaintiff's burden of proving standing to the defendant.

    The plaintiff's own petition constitutes a judicial admission that plaintiff is not the original creditor.  Plaintiff must

    plead and prove up any assignment and has done neither.

 

 

RESPONSE TO REQUEST FOR ADMISSIONS-

 

1.  Denied.

 

2.  Denied.

 

3.  Defendant objects to this request as irrelevant and as seeking information that is not reasonably

    calculated to lead to the discovery of admissible evidence.

 

4.  Denied.

 

5.  Defendant objects to this request as vague and uncertain because there is no way to discern from the

    request what plaintiff contends were "applicable terms and conditions" and/or "cardholder agreement"

    and the determination whether these were "applicable" calls for a legal conclusion.  Subject to and waiving

    these objections, after a reasonable inquiry the information known or easily available to Defendant is

    insufficient for Defendant to admit or deny the request.

 

6.  Defendant objects to this request as vague and uncertain because there is no way to discern from the request what

    interest, late fees, and penalties to which the request refers.  Subject to and without waiving these objections,

    denied.

 

7.  Defendant objects to this request as vague and uncertain because there is no way to discern from the

    request what plaintiff contends were the applicable interest rates, late fees, over the limit fees and the

    and the determination whether these were "applicable" calls for a legal conclusion.  Subject to and without

    waiving  these objections, denied.

 

8.   Denied.

 

9.   Denied.

 

10.  Denied.

 

11.  Denied.

 

12.  Denied.

 

 

RESPONSES TO INTERROGATORIES-

 

1.  Defendant has never had any account or dealings with Midland Funding, LLC.  There is no evidence

    that Midland Funding, LLC has standing to bring any claim for a debt allegedly owed by Defendant

    to any original creditor.  Defendant does not recognize the alleged account.

 

2.  Discovery has just begun.  Defendant will supplement.

 

3.  Defendant has not filed any counterclaim at this time.

 

4.  Defendant has not filed any counterclaim at this time.

 

5.  Unknown.

Share this post


Link to post
Share on other sites

Ok, I don't know the questions they asked, or what they wanted as admissions but check your court rules. Any time you deny an admission some courts say you must have a reason.

Same with doc requests. You can't hust put unknown, or they have it. You have to show you made a reasonable attempt to locate them if they exist.

So you would answer something like "after a reasonable inquiry and diligent search defendant has no documents. If such documents exist they should be available from plaintiffs own records"

Also change up the wording. You don't want it to look like you cut and pasted everything off the internet.

  • Like 1

Share this post


Link to post
Share on other sites

I just now have something to report back on.  Today I received a letter from Midland that says, "Please find enclosed Plaintiff's Notice of Nonsuit and Order granting Nonsuit for filing in the above referenced lawsuit.  Once you have completed filing, please forward to the Court for approval.  After review and approval of the same, please return a conformed copy of the Signed Order of Nonsuit to our offices in the enclosed self addressed envelope."  (Which they DIDN'T include)  

 

So does this mean if I do the rest of the work by filing it and then sending them a copy, it's a done deal?

Share this post


Link to post
Share on other sites

Thank you all for your help!   I don't know what I would have done if I had not found this site.  You have all truly been a blessing to us.  This account was my late husbands and I had been trying to pay it off.   What I didn't mention earlier was that my mom who lives with me had a stroke the week before this case dropped into my lap.  When I arrived home from the ICU I was served by a process server and I didn't know where to turn.  I was stressed out and worried and I would not have gotten through this without all of you.  You don't know how much of a service you are giving to others.  You are all life savers!      

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this