Being Sued in Texas by Midland and need guidance

[KPete14303]

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.)

Michael James Young

P.O. Box 460568

Houston, TX

 

3. How much are you being sued for? 

$1900

 

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

Citibank (Best Buy Card)

 

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, Travis

 

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

May 2013

 

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).  Suit Served

 

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 8/25

 

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

All are included in the attachment with the exception of a Credit Card statement from Best Buy

 

Lawsuit_Redacted.pdf

 

 

Looking for some help with my guidance letter. Based on what I have seen from other posts on this forum I know I need to keep it short and respond to their allegations line-by-line but not sure how to proceed much further

[shellieh98]

They conveniently left out any arbitration clause. Is this small claim, magistrate court, or state court?

Look up some threads by texasrocker, he has helped many here win.

I favor arbitration because 98 % of the time JDB won't go, but some state have favorable rules so research first. Texas is one of you follow @texasrockers advice

[texasrocker]

Follow what I posted in post #10 of this thread.  Make sure you edit the part in red accordingly to match the wording in the original petition where they claim to have purchased the debt.   http://www.creditinfocenter.com/community/topic/326275-please-helpbeing-sued-by-midland-funding-in-texas/

[KPete14303]

Thanks all - I should have noted this is in County Court. 

 

 

 

Follow what I posted in post #10 of this thread.  Make sure you edit the part in red accordingly to match the wording in the original petition where they claim to have purchased the debt.   http://www.creditinfocenter.com/community/topic/326275-please-helpbeing-sued-by-midland-funding-in-texas/

 

 

@texasrocker - post #10 in that thread doesn't have an red within it - is there another post you may have been referencing?

 

Apologies for the delayed response, my internet at home is down so I have to respond from work

[texasrocker]

Sorry, I posted incorrect URL.  I just went back and edited it.  It should have been this one-

http://www.creditinfocenter.com/community/topic/325709-being-sued-by-portfolio-in-county-court-in-texas/#entry1319415

[KPete14303]

Thanks @texasrocker! Really appreciate it.

 

So I will create the letter today and take it to the courthouse to get my formal response submitted tomorrow. I will send the letter with a read receipt and then Midland has 20 days to respond to me, correct? If they don't, then they essentially forfeit, correct?

 

Just want to make sure I am clear on the next steps. I ordered the book from the link posted but have been reading so many different boards/blogs that I want to make sure I have my facts straight.

[KPete14303]

I submitted my letter today at the courthouse today and have mailed the letter to the lawyers with delivery receipt request as well. I am a bit worried that the letter states there is no allegation as to who was the seller of the debt, however Midland did turn over a statement saying they bought the debt from Citi. But, as @texasrocker says - you have to make them get off of their butts.

 

Thank you very much @texasrocker for the assitance on all of this. Is there anything I need to take care of at this point or am I just awaiting a response from Midland's lawyer?

[texasrocker]

If that is your biggest worry then you have no worries.  If I found a copy of an old credit card statement in a dumpster behind a bank with your name, address, account number and showing a balance due and then told you I had purchased the debt so you need to now pay me the balance would you not want to know specifically who I purchased it from and to see some proof of a transaction to convince you that I was telling you the truth?   If not then I have some ocean front property in Arizona that I would like to give you a great deal on.  

[KPete14303]

@texasrocker - thanks for putting me at ease. The statement I referenced is a signed doc saying that Midland purchased the debt from citibank but at the same time it doesn't state any amounts or mention my account specifically (although my account is called out on page 8 of the attachment I posted earlier)

 

We shall see I suppose. Thanks again for your help and I will let you know what the response is.

[KPete14303]

@texasrocker - I received the attached request for Discovery from Midland's lawyers yesterday. From what I have read in the civil trials book and what I am reading here, the best way to go forward is to deny the requests for admissions, is that correct? 

 

Also, on their interrogatories, I am assuming I should deflect on those as well since I have not received anything that makes it clear to me that the debt is actually my own. 

 

Any guidance you or others may have would be appreciated.

Scanned-image-8.pdf

[texasrocker]

I will get on this later today. 

 

Have you sent discovery to them?  If not I can send you excellent first set that should stop them dead in their tracks. 

[KPete14303]

Thank you! I have not sent discovery to them yet and will review the document you provided and let you know if I have any questions. Thank you so much for your help with this

[texasrocker]

Answers to Midland's Discovery:

 

REQUEST FOR DISCLOSURE-

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 its possession.

2. a) <Your name>
      Defendant has no information as to the correct name of the plaintiff.
  

   Ƅ) Unknown at this time.
  

   c) This is a lawsuit arising out of an alleged consumer credit card debt.  Plaintiff is not a financial institution, not an
      original creditor, and not a 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 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 asserts that the claims are barred by the applicable statute of limitations.

      Defendant asserts that the enforcement of the Card Member Agreement or contract is substantively unconscionable because it is
      grossly one-sided and unfair.  In particular the Card Member Agreement allows the creditor to unilaterally and dramatically
      raise the interest rate while simultaneously lowering the credit limit for virtually any reason or whim, even those having no
      reasonable bearing upon the consumer's performance, and then charge penalties and fees because the creditor's unilateral
      and arbitrary decisions caused the consumer to be over the credit limits. The contract allows the creditor to unfairly
      surprise the consumer to default due to the imposition of impossible and usurious interest rates. Such provisions are grossly
      unfair and unconscionable and should not be enforced by the court.
      
   d) Defendant has not made any claim for economic damages.  Defendant asserts that plaintiff has no damages.

   e) <your name, address and phone number>, Defendant.
      Midland Funding, address and phone number unknown.
  

  f) No expert witnesses at this time.
   
   g) Unknown
   
   h) Unknown

   i) Unknown

INTERROGATORIES-

1. <Your name>

2. None at this time.

3. None at this time.

4. Objection.  Defendant has already denied having any knowledge of the alleged debt.

5. Objection.  Defendant has already denied having any knowledge of the alleged debt.

6. Objection.  Defendant has already denied having any knowledge of the alleged debt.

7. Denied.

8. Denied.

9. Objection.  Defendant has already denied having any knowledge of the alleged debt.

10. Defendant denies that Plaintiff has standing to  assert any claims against Defendant arising out of any debt or obligation
    owed by Defendant to the original creditor or any assignee of the original creditor and therefore does not have standing to
    bring this lawsuit.

11. Objection.  Defendant has already denied having any knowledge of the alleged debt.

12. Denied.

13. Objection.  Defendant has already denied having any knowledge of the alleged debt.

14. Objection.  Defendant has already denied having any knowledge of the alleged debt.

15. Objection.  Defendant has already denied having any knowledge of the alleged debt.

REQUEST FOR ADMISSIONS-

1. Admit

2. Denied.

3. Objection.  Defendant has already denied having any knowledge of the alleged debt.

4. Denied.

5.Objection.  Defendant has already denied having any knowledge of the alleged debt.

6. Denied

7. Denied.

8. Denied.

9. Denied.

10. Denied.

11. Denied.

12. Denied.

13. Denied.

14. Denied.

15. Denied.

REQUESTS 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 its 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 its 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 its 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 its possession.

5. 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 its possession.

6. 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 its possession.

7. 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 its possession.

8. 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 its possession.

9. None at this time.  Defendant will supplement.

10. Defendant has made no such claim. Defendant will supplement.

11. Defendant has made no such claim. Defendant will supplement.

12. Defendant has made no such claim. Defendant will supplement.

13. Objection.  Defendant has already denied having any knowledge of the alleged debt.

14. None at this time.  Defendant will supplement.

15. None at this time.  Defendant will supplement.

[KPete14303]

Thanks @texasrocker- I'll take a look in the morning and let you know if I have questions but at first glance this looks awesome! You're the best. Between your guidance and the civil procedures book, I've learned a ton during this process!

[KPete14303]

@texasrocker - got the attached in the mail and wanted to make sure I am not missing anything and do not need to respond.

 

The affidavit doesn't include any specific information about the account other than the account number and the date of the supposed sale, which was already provided in the other documentation. The other exhibits they include were in the original packet I received when I was served and provide no real information other than the date of sale. Based on my readings from the civil law book and the research done reading other posts, I am thinking I do not need to respond to anything and am still awaiting a response to my requests for discovery sent in late November. I am interpreting this as another attempt at intimidation into a settlement, as the affidavit was taken before I responded to their discovery and before I sent mine.

 

 

 

 

Edited - Having problems getting the attachment to work - here is a dropbox link https://www.dropbox.com/s/opxwh09qbregax9/Dec16Redacted.pdf?dl=0

Edited December 16, 2015 by KPete14303

[texasrocker]

Yes, wait and see what transpires with discovery.

They are trying to intimidate you with the typical JDB "evidence" that they purchased your account.   

[KPete14303]

@texasrocker - got the attached from Midland yesterday. In reading through it seems to me that they are still trying to bluff their way through things, but I'd like your perspective as well. In many areas they are admitting they do not have the original agreements from Citibank, and their new evidence (exhibit 2) sheds no new light in my opinion, because it is so redacted that it proves nothing.

 

As for next steps, do I need to request additional discovery from them to get answers for the questions in which their answers seem inadequate? Or should I be on the lookout for a court date notification? If I am understanding the civil procedures book correctly, it seems like next steps would be a court date unless I follow-up with additional requests for information. 

 

 

Still having trouble with the uploader, but the files can be found at this Dropbox link - 

https://www.dropbox.com/s/o7hmb8qpai1zvnh/DiscoveryFromMidlandRedactedandPosted.pdf?dl=0

 

Appreciate your help with all of this, as it seems like they are starting to grasp at straws a bit.

 

 

*edited to provide more clarity on why I think Exhibit 2 is not relevant

[CommoSGT]

@texasrocker   Plaintiff's answer to request for production #2 basically says they don't care about the CFPB consent decree doesn't it?  Doesn't the CFPB tell them they must have their evidence before filing?

[texasrocker]

I am not familiar with CFPB.  These answers are typical and expected of JDB's attempting to evade giving a straight answer.  Producing the same inadmissible documents which they have already produced shows they have nothing.  The next step is to file a motion to compel production of the Purchase and Sale Agreement referred to in the Bill of Sale and Assignment attached as "Exhibit 2."  Send them a letter via certified mail informing them that if they do not produce the Purchase and Sale Agreement referred to in their Bill of Sale to show the complete chain of custody of the alleged account within 30 days then you intend to file a motion to compel its production.

Their refusal to answer the items referring to how they went about authenticating the information regarding the accounts in their bulk purchase shoots down the claims made by their robo-signer on the affidavit.   This will come in handy later to for a no-evidence motion for summary judgment.  

[KPete14303]

Thanks @texasrocker - I'll draft up a motion and post it for feedback before I file it.

[BV80]

@CommoSGT

 

 

@texasrocker   Plaintiff's answer to request for production #2 basically says they don't care about the CFPB consent decree doesn't it?  Doesn't the CFPB tell them they must have their evidence before filing?

 

The documentation that the CFPB requires the plaintiff to have starts on page 34 of the Consent Order.  Whether or not the court requires it is up to the court.