Rnixon

Being Sued by Midland Funding - Charlotte NC

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Hi,

Below will explain my summons in more detail:

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

2. What is the name of the law firm handling the suit? Sessoms & Rogers, P.A.

3. How much are you being sued for? $2,457.62 + costs of the action

4. Who is the original creditor? WebBank/Fingerhut

5. How do you know you are being sued? Served last night

6. How were you served? In person by sheriff

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? They have sent a few letters but that is it

9. What state and county do you live in? North Carolina / Mecklenburg County

10. When is the last time you paid on this account? January 4, 2014

11. What is the SOL on the debt? To find out: Moved from PA to NC - PA is 6 NC is 4 so both are within SOL

12. What is the status of your case? Suit served? Motions filed?  I have just been served and am given 30 days to answer the complaint (no court date is listed just instructions to answer to plaintiff and file with court)

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) As a matter of fact,  I mailed out CERTIFIED letters to all CRA's on January 4, 2016 disputing these accounts.  That night I was served these papers.

14. Did you request debt validation before the suit was filed? Not sure if it was too late but it was on the same day I was served (see above)omatically.

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? It says CLAIM FOR RELIEF and states that I am lawfully indebted to the Plaintiff for the amount above because I made an express or implied promise to pay the balance due on the account.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract?

Exhibit A - Statements from the beginning to end of alleged account

Exhibit B - Bill of sale of OC or Acquirer - with this is also a page with my field data that states: Data printed by Midland Credit Management INC. from electronic records provided by Bluestem Brands, INC., for itself and as an agent for Santander Consumer USA pursuant to the Bill of Sale / Assignment of Accounts transferred on or about 8/29/14 in connection with the sale of accounts from Bluestem Brands, INC., for itself and as agent for Santander Consumer USA to Midland Funding LLC.

Exhibit C - An affidavit in support of judgement from a Legal Specialist that has access to account records for Midland Credit Management, INC.

I have read quite a few posts here but wanted to have some personalized input as I am not sure how to respond to the complaint.

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@Rnixon

Does the assignment (bill of sale) show the original account number?

 

§ 58-70-150.  Complaint of a debt buyer plaintiff must be accompanied by certain materials.

In addition to the requirements of G.S. 58-70-145, in any cause of action initiated by a debt buyer, as that term is defined in G.S. 58-70-15, all of the following materials shall be attached to the complaint or claim:

(1)        A copy of the contract or other writing evidencing the original debt, which must contain a signature of the defendant. If a claim is based on credit card debt and no such signed writing evidencing the original debt ever existed, then copies of documents generated when the credit card was actually used must be attached.

(2)        A copy of the assignment or other writing establishing that the plaintiff is the owner of the debt. If the debt has been assigned more than once, then each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership. Each assignment or other writing evidencing transfer of ownership must contain the original account number of the debt purchased and must clearly show the debtor's name associated with that account number.  (2009-573, s. 8.)

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@BV80

The actual bill of sales do NOT have any information regarding my account number, name, social or anything.  There is another paper that is printed from MCM themselves that has field data on it.  This has my name.  The account number only displays the last 4 numbers and it matches the "customer number" on the statements attached.  There is also a line that says: BSBCreditcardnumber and this also only displays last 4 digits but DOES NOT match any account numbers listed on the statements.

Thanks!

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@Rnixon

The statute says that the "assignment or other writing evidencing transfer of ownership" must contain the original account number.  I'm not sure that Midland's own printed information (including their affidavit) would satisfy that requirement, so I'd contact a NC consumer attorney to find out.

Follow the link, and then go to "Find An Attorney", then enter your state or zip code.

http://consumeradvocates.org/

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Your other option is to elect arbitration.  Finger hut has a AAA arbitration provision.  Midland can't use AAA unless they pay a bunch of back fees, AAA won't let them.  But that's not your problem, your agreement give you the right to Arb with AAA.  They don't have a choice if you can compel Arb, it takes away their right to collect from you. (Unless they kiss and make up with aaa)

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@shellieh98

Wow, your answer could not have come at a better time!  I just spoke with a lawyer who recommended  adding the arbitration and award defense to my answer.  I just printed off the agreement available on the Fingerhut website, which states we MUST use AAA for arbitration.  Thank you so much!!

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Ok, I have a few more questions.  I mailed a certified notice of arbitration election to the plaintiff's attorney certified mail telling them I am electing abitration through AAA and they must dismiss the case.

I also included a copy of my answer to the original complaint: SEE BELOW in red:

1. Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing credit account agreement, which takes away both sides litigation rights in court.

 2.  Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations stated in the petition in paragraphs _paragraphs here_ and therefore denies those allegations.  Defendant holds the Plaintiff to provide the strictest proof thereof.

3.  All other allegations not expressly admitted are denied.

AFFIRMATIVE DEFENSES

 1) Defendant states there is an arbitration clause in the credit account agreement that takes away both parties litigation rights if elected by either party. Defendant has notified Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to CREDITOR NAME Credit Account Agreement.

Today, I filed my motion to compel arbitration at the court attaching the letter sent to attorney and credit agreement as exhibits.  I also scheduled my hearing for the end of the month and filed the notice of motion.  I have sent both certified to the attorney and will file an affidavit of service when I receive confirmation they have received it.  Now North Carolina allows me to file a motion in lieu of answering the complaint.  My hearing date is scheduled before my 30 days to file my answer is up.  My question is since I sent my answers to the attorney already but have not filed them do I need to file them now or should I wait it out? 

Thanks you guys have been tremendous help!

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Also, I got the credit account agreement from the OC's website itself and it is within the time frame of the alleged account.  Do I need to reference where I got the agreement from?  I did not send a copy of the agreement to the plaintiff with my first letter but it is attached to the motion that was filed and I sent to them.

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On 1/8/2016 at 1:13 PM, Rnixon said:

Also, I got the credit account agreement from the OC's website itself and it is within the time frame of the alleged account.  Do I need to reference where I got the agreement from?  I did not send a copy of the agreement to the plaintiff with my first letter but it is attached to the motion that was filed and I sent to them.

@Rnixon

I'd attach an affidavit swearing that the agreement came from the OC's website and, to the best of your knowledge, is a true and correct copy of the agreement that applies to the alleged account in question.

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@BV80 - Does it matter that I have already filed the MTC with the agreement as an exhibit?  I did include verification verbiage at the end that I signed stating:

I verify that the statements made in this Motion are true and correct.  I understand that false statements herein are made subject to the penalties of NC STATUTE HERE, relating to unsworn falsification to authorities.

Should I file the additional affidavit?

 Another question,  since I have already filed my MTC and scheduled my hearing for the end of  the month, should I go ahead and initiate the arbitration with AAA or wait till after my hearing?  I wasn't able to find protocol for that. 

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@Rnixon

If you didn't specify that the copy of the agreement was a true and correct copy of the agreement found on the OC's website, then saying that the statements made are true and correct is not the same.

I suppose you could file an additional affidavit.  I might also include the website address of the agreement.

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Yes make sure you send the other side anything you filled with the court. 

Highlight the Arb clause for them.

no don't answer the suit until your motion is ruled on.  You will get additional time to answer should your motion be denied.

note....if your motion to compel did not include a motion to dismiss in it I would amend it.  You can file a motion to dismiss in lieu of an answer, but not a motion to compel.

all one motion titled "motion to dismiss pending private contractual arbitration, and motion to compel private contractual arbitration."

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@shellieh98 and @BV80

I had my hearing today.  At the request of the attorney the judge agreed to stay the case and I have to file my request for arbitration within 30 days.  I have just filed my AAA paperwork and have received my confirmation email.  What are my next steps?  How do I now get this dismissed from the court?  I have to file the AAA paperwork with the courts but do I request another MTC?  Thanks for all of your help!

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@BV80

Right.  The judge's orders are to file arbitration within 30 days.  I filed today with AAA.  I will go to the courts early next week and have the AAA paperwork filed as well.  Just curious if I need to file another MTD to get the case actually dismissed or if it is enough to just file the AAA paperwork.

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All you have to do is show the court you filed with AAA.  Then it's a waiting game.  AAA will send out a letter to midland ( they should copy you in on it) to pay up.  Midland owes AAA money so they may say you can't arbitrate until you pay the money you owe plus money for this case.  Midland might try to tell the court AAA won't arbitrate with them so the judge should keep it in the courts juristriction.  You will object to this.  Midlands business problems are not yours.  They will dismiss.  I would ask for my fees back if they try that. Your doing great!

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Just wanted to update on this.  I filed paperwork with AAA and then with the court.  I received a letter about 3 weeks later from AAA stating they do not arbitrate with Midland and a refund check was included.  Approx 2 months later, I received a letter from Sessom and Rogers stating they dropped my case with the court paperwork stating the same as well.  Thank you for all of your help.  I wouldn't have gotten this far without your guidance :)

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