mama21

Stay at home Mom Served Summons Midland Funding - citi bank

Recommended Posts

So, I currently have a thread for a summons I received from midland on a BOA card I had.  Today I was served by midland once again for a citi bank card I had.  I know it probably wouldn't matter considering midland has all my information on where I live now, however, would it have made any difference if I just didn't answer the door?

 

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.) a midland law firm.

3. How much are you being sued for? $2,388

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

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

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)  August 31, 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 CitiBank

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.

 

 

As for the midland boa summons, I elected arbitration with attorney, filed my answer which requested arbitration, and filed MTD/MTC.   Should I do the same for the citibank.  

 

Thanks so much for all your help, this time when I was served I wasn't as nervous because I have people like you willing to help and I have learned so much already.  

 

Thanks

Share this post


Link to post
Share on other sites

Also wanted to state included in the suit - 

 

1. Affidavit from a legal specialist that has access to pertinent account records for midland

2. Bill of Sale and Assignment from citibank to midland

3. Affidavit of sale of account by original creditor stating that on said date citibank sold pool of debt to midland.

4. Account Statement - showing summary of balance and has name and old address

 

 

Also want to state that the summons includes Recitals and two counts instead of Allegations and two counts? How do I respond to recitals?

 

Thanks so much again for all your help. 

Share this post


Link to post
Share on other sites

Also wanted to state included in the suit - 

 

1. Affidavit from a legal specialist that has access to pertinent account records for midland

2. Bill of Sale and Assignment from citibank to midland

3. Affidavit of sale of account by original creditor stating that on said date citibank sold pool of debt to midland.

4. Account Statement - showing summary of balance and has name and old address

 

 

Also want to state that the summons includes Recitals and two counts instead of Allegations and two counts? How do I respond to recitals?

 

Thanks so much again for all your help. 

Can you tell what kind of credit card or loan it was? 

Share this post


Link to post
Share on other sites

I guess it doesn't matter, it's not small claims. Since AZ rules say the JDB can attest to the records, overcoming the heresay exception rule, it would probably be better for you to demand arb.

Share this post


Link to post
Share on other sites

Yes it was a consumer debt.  I'm not sure if it was HSBC, I can try to find something that suggests that.  I know it as opened in 2008.

 

Thanks

Share this post


Link to post
Share on other sites

From the retail account agreement that cliff2009 sent clearly states that claims shall be resolved by binding arbitration and that JAMS shall be the forum.

Share this post


Link to post
Share on other sites

So, if the card agreement that cliff2009 sent is the correct one, I should be able to:

 

Elect arbitration CMRR to attorney

MTD/MTC file with court and CMRR to attorney

File answer, stating that I have elected arbitration, file with court and CMRR to attorney

File with JAMS

 

Is this the correction course of action. 

  • Like 1

Share this post


Link to post
Share on other sites

Do any of you see this section a problem?

Unless the Rules require allocation more beneficial to you: (a) the party making demand upon JAMS for arbitration shall pay to JAMS the filing fee required by the Rules when the demand is made, except that if you are the party making such demand, we will pay the amount of the filing fee in excess of the lesser of $125 or the amount of the fee that would be required for you to file a lawsuit in the county or parish of your residence; (B) we will pay the fees of the arbitrator; and © each party shall pay that party's own attorneys', experts' and witness' fees and expenses unless otherwise required by law or by other terms of this Agreement. Despite our agreement to pay filing fees and the arbitrator's fees as described above, you have the option to pay your share of the filing fees and the arbitrator's fees consistent with the Rules. If the arbitrator determines that a Claim was made in bad faith or lacks any justification, the arbitrator may, in accordance with Rules: (a) award the party against whom such Claim was made the amount of the filing fees such party paid; and (B) require the party making such Claim to pay the amount of the arbitrator's fees or award the amount of the arbitrator's fees to the party against whom such Claim was made if the party against whom such Claim was made pays the arbitrator's fees

Share this post


Link to post
Share on other sites

Yes - it sounds like someone going to arb, under those terms, solely for the purpose of scaring off a debt buyer with fees, could get stuck with a huge bill.

  • Like 1

Share this post


Link to post
Share on other sites

Yes - it sounds like someone going to arb, under those terms, solely for the purpose of scaring off a debt buyer with fees, could get stuck with a huge bill.

It says if a "claim" was brought in bad faith. It doesn't say if you demand their claim go to arbitration. 

  • Like 1

Share this post


Link to post
Share on other sites

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  August 31, 2009


11. What is the SOL on the debt? To find out: 6 years

 

I would be finding this out for certain. They are so close on the SOL on this one.

 

Also, it wouldn't have mattered if you had opened the door.  SOL is calculated based on when the lawsuit was filed, not when you are served.  Also, if you had evaded service they would have moved the court for alternative service and you'd possibly end up with a default judgment without even knowing it. 

Share this post


Link to post
Share on other sites

Might they look at initiation of arb being a "claim." It's always a risk if the creditor follows to arb.

 

Being sued on breach of contract, then bringing an Arbitration claim in which the contract allows, would never be considered bad faith.  If it did, then you could claim the lawsuit filed by the JDB is in bad faith too.  It's a ridiculous notion, even in AZ.

  • Like 2

Share this post


Link to post
Share on other sites

Might they look at initiation of arb being a "claim." It's always a risk if the creditor follows to arb.

I can't see how electing arbitration in response to a lawsuit could be considered a "claim".

 

I think what that's intended to curtail is people filing $100,000 counterclaims for simple technical FDCPA violations in order to drive the plaintiff's arbitration costs up.  At one time AAA had a sliding fee scale where a larger amount in controversy would result in higher arbitration fees. 

 

P.S. It's Newton's laws of motion.  You may have me to partially thank for that provision. 

Share this post


Link to post
Share on other sites

Being sued on breach of contract, then bringing an Arbitration claim in which the contract allows, would never be considered bad faith.  If it did, then you could claim the lawsuit filed by the JDB is in bad faith too.  It's a ridiculous notion, even in AZ.

I don't see demanding arbitration in response to a lawsuit as a "claim" unless you bring counterclaims. That opens up a whole new can of worms. 

Share this post


Link to post
Share on other sites

Yes - it sounds like someone going to arb, under those terms, solely for the purpose of scaring off a debt buyer with fees, could get stuck with a huge bill.

 

@Goody_Ouchless

 

How would a creditor or JDB prove that a consumer who's been sued has compelled arbitration for the purpose of scaring off the plaintiff?  The consumer is merely exercising his right under the arbitration provision. 

 

The "bad faith" portion of the provision would refer to a claim that starts out in arbitration.  For example, a consumer initiates arbitration against a creditor for unauthorized credit card fees.  If the fees were allowed, the arbitrator could determine the claim was frivolous.

 

I don't know if it would apply to a claim that starts out in court and for which the other party motions to compel arbitration.

  • Like 1

Share this post


Link to post
Share on other sites

@BV80

 

I believe Arizona doesn't allow "assigned claims" in small claims court.  This would preclude them from filing in SCC.  It would then have to be Justice Court.

Lawyers are not permitted in small claims division here so that reason alone is going to preclude virtually all debt collection cases from being litigated as small claims. 

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.