3amepiphany

Being Sued by Midland Funding LLC in Arizona!

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AHHHH (dat's me yellin').

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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.) There is a slew of names yet we've had a substitution of counsel - name is Daniel Hoffman, no firm listed.

3. How much are you being sued for?  $2,071.50

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

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

6. How were you served? (Mail, In person, Notice on door) In person, at home.

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?  Several sudden and harassing incoming calls at the very end of August of 2013, they did not identify themselves until after the local police got involved. Nothing before that, no paper correspondence at all, no idea of where to send a DV to.

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

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Their paperwork provided states 5/30/2010.

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

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). Pending court date. We had our pretrial today and they could not schedule at the time.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) It's too late now!

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. See above answer.

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? I have already answered the claim and no, they did not include an interrogatory. I am being sued for 1) Breach of Contract and 2) Unjust Enrichment.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Included are: An Affidavit of "Emily Persons", a Bill of Sale from Chase with  no related identifying information for the account (or it's redacted, there is a HUGE amount of info redacted in the copy i have), an Affidavit of Sale by Original Creditor with no identifying information regarding the account (and no redactions!), and a statement with the balance they are trying to sue me for with a due date of 12/08/10 , and a "field data" sheet with base information including an incorrect home address and a charge off date of 11/30/2010.

17. Read this article: I am working my way through it right now, as well as the Encore Consent Order by the CFPB.

Boy, oh boy, am I glad I found you guys, and I hope I can get some assistance that is more than a "You can do whatever you want!" or a "Just settle!" I have mild Aspergers' so it makes it really difficult for me to conceptualize a lot of things, and I ask a LOT of questions because of it. I feel really bad for my court clerks, who understand that I am not looking for guidance but AM looking for guidance, if that makes sense.

We originally had a pretrial conference date back in February for this case; at the time the representation for the Plaintiff was unreachable and they did not call in to the meeting, so at the time the judge dismissed without prejudice -- he was very gracious in hearing that I had just filed a compulsory counterclaim in the case the week before - I got a postcard detailing the TCPA Litigation Settlement and upon calling in to ask about that the counsel for that case confirmed I could file but suggested instead that I use the evidence they provided as well as my police report about the phone calls and a statement from my mother and brother regarding how they'd received the same threatening calls for me that day. If the judge had dismissed with prejudice I wouldn't be able to pursue that, legally. The counterclaim is for several FDCPA violations and the TCPA violations; I had not filed a claim in the Settlement and was told to wait to opt-out until it was "safe" to do so. Meaning that when my counterclaim would be accepted. I could then just ask for a simple wash in pre-trial, that would be more than incredibly reasonable. No one would collect anything and we could all go our ways.

So I walk out of the courthouse with a notarized dismissal, a smile, and a nice comment from the judge about how annoyed he was by the Plaintiff. (Like, me too, sir, holy cow.)

Fast-forward an hour later as I'm on the phone with my mother, the court calls back, and says "We have the Plaintiff's counsel on the line apparently they called the courts and left messages that they would be taking control of the case." I wasn't really given a choice in the matter and was told we would set another pre-trial conference for today; as they were still receiving file work and waiting on my counterclaim and the counsel didn't feel it was "appropriate to talk settlement numbers just yet".

They apparently filed the paperwork for the new counsel and filed a motion to strike my counterclaim (fairly, state law says a counterclaim is to be filed with the answer, so I already had a feeling not to bank on that getting me anywhere) - I received a letter from the court last week saying the judge had extended my time to file a response to that motion, so I hauled down to the courthouse for the paperwork, as I never received any of that, and filed the response yesterday.

Today was the pretrial. We had a different judge who completely steamrolled me with an "Are you a lawyer? I've been in law for 50 years, none of this is a counterclaim, I don't care who advised you on this, this is all separate from your matter at hand here." while I tried to defend and explain the reason behind the compulsory claim. I just decided to stop and shut up.

Just over five minutes after being called into the courtroom, I left with an order to resend a document request I had sent in January and never received a response for, as well as the expectation to provide one to the Plaintiff. Also that "(I) could just call and settle with them if (I) just decided to just do that, (I ) can still do that." The court clerk could not access the scheduling program, so we verified my contact information (not the plaintiff's though) and was told to expect to be notified of a pending court date in the near future.

So I'm home, had a bit of time to cry my anger out, and cracked open a beer and decided to start directing my anger properly. I'm also looking at the old posts by beergoggles, reading through the consent order again, as well as bookmarking some other tabs to read after dinner.

At this point I guess I can safely ask now.... help? Thanks.

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@3amepiphany what was the sale date from Chase to Midland or did someone else own it before Midland? If you feel like posting any documents with personal info blacked out, please do.

there is also a CFPB consent order for Chase if you want to read the PDF.

http://files.consumerfinance.gov/f/201507_cfpb_consent-order-chase-bank-usa-na-and-chase-bankcard-services-inc.pdf

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2 hours ago, CCRP626 said:

@3amepiphany what was the sale date from Chase to Midland or did someone else own it before Midland? If you feel like posting any documents with personal info blacked out, please do.

there is also a CFPB consent order for Chase if you want to read the PDF.

http://files.consumerfinance.gov/f/201507_cfpb_consent-order-chase-bank-usa-na-and-chase-bankcard-services-inc.pdf

Hi, and thank you for that link, I'll be sure to check this out as well!

The bill of sale provides three dates; a Credit Card Purchase Agreement dated 12/28/2011, a file creation date of 5/22/2012, and a closing date of 5/30/2012. Their affidavits list the file creation date of 5/22/2012. (eta) Midland was the next direct link in the chain from Chase.

I'm not currently in possession of a scanner but I will figure something out.

30 minutes ago, debtzapper said:

Sounds like you got your world rocked in court.  @Harry Seaward is an AZ member and hopefully he will respond soon.   More and more, the AZ court system (at least Justice Court) sounds like a reality show gone bad.

I admit that it felt like a slap in the face. I'm pro se, the paperwork says pro se, i'm very obviously not a lawyer.  I don't know why the judge felt that was appropriate. I don't know why we were sat with another judge today, honestly.

Thank you both.

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Don't count on being able to use beergoggles' strategy to succeed.  There have been some court rulings in AZ since his victory that make it much easier for debt buyers to get their court judgments using nothing more than the items you stated you were provided.

But there are other angles that have been successful here in AZ.  If you have a card agreement, look for an arbitration clause.  Chase removed the arbitration agreement in 2010, but I have an agreement from 2002 that includes a 'survivability clause' stating that the arbitration agreement will survive anything short of a nuclear bomb so even though they removed the agreement from subsequent agreements, if your account was issued under an agreement with the survivability clause intact, it doesn't matter what they did in later agreements. Last week one of our guys here sent a debt buyer packing on a $30,000 debt using arbitration.

Also, Midland was directly slapped with a CFPB order a few months back. A couple Maricopa Justice Courts have taken it pretty seriously and the appellate court for said justice courts has also weighed in. Unfortunately, Coconino justice courts are not under Maricopa's jurisdiction so there's to telling how it will play out there. If you can get the 'nice' judge to hear you out over it, you'd probably do well. 


Here's the CFBP article on the consent order:
http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

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@Harry Seaward @fisthardcheese 

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I would get a 2009 or earlier (so long as it was during a time your account was open) Chase card agreement and use the arbitration clause.

Would the counterclaim @3amepiphany started in court be considered a waiver to the right to arbitrate in Arizona? I did notice looking through Chase agreements recently they got rid of arb in late 2009 but the earlier agreements have a survivability clause.  Their choices were NAF (no longer an option) and AAA which is nice since Midland can't participate there.

As far as getting an agreement, the CFPB archives don't go back that far but a CFPB complaint against Chase would work although you'd probably have to push to get one earlier than the final one. I also think Midland under the consent order has to provide the agreement among other original account level detail

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2 hours ago, CCRP626 said:

Would the counterclaim @3amepiphany started in court be considered a waiver to the right to arbitrate in Arizona?

I'm not clear on the counterclaim.  At first I thought @3amepiphany tried to get a counterclaim going but then was unsuccessful in doing so.  Now that I read it again, it seems as though he/she may have started a counterclaim on FDCPA violations but was not able to get the TCPA claim made.

At any rate, filing a counterclaim does not in and of itself constitute a waiver, just as filing an original claim also doesn't constitute a waiver.  In Arizona there needs to be 'significant litigation' or actions consistent with an intent to waive one's right to arbitration.  A plaintiff suing in court and a defendant filing an answer & responding to discovery has been determined to not constitute waiver of either party.  If, on the other hand, OP served his/her own discovery and received Midland's responses to those, I have a feeling the court would find she waived her right to arbitrate.

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8 minutes ago, Harry Seaward said:

I'm not clear on the counterclaim.  At first I thought @3amepiphany tried to get a counterclaim going but then was unsuccessful in doing so.  Now that I read it again, it seems as though he/she may have started a counterclaim on FDCPA violations but was not able to get the TCPA claim made.

At any rate, filing a counterclaim does not in and of itself constitute a waiver, just as filing an original claim also doesn't constitute a waiver.  In Arizona there needs to be 'significant litigation' or actions consistent with an intent to waive one's right to arbitration.  A plaintiff suing in court and a defendant filing an answer & responding to discovery has been determined to not constitute waiver of either party.  If, on the other hand, OP served his/her own discovery and received Midland's responses to those, I have a feeling the court would find she waived her right to arbitrate.

@CCRP626

I guess I am confused too because It sounded to me like the judge agreed to strike the counter claim, so the case would proceed as if it were never filed.   This also sounds like the type of judge who is annoyed that any non-attorney would dare come into his court and do anything to assert their rights other than agree to pay whatever his Golfing BFF the Plaintiff's attorney claims is owed.

I would file an MTC, but I would also be prepared to argue it to the biased judge.

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Hi, everyone, I'm home a bit early from work today and have a scanner at hand so I can get the documents up tonight!

Let me answer some things before I get to that.

16 hours ago, Harry Seaward said:

Don't count on being able to use beergoggles' strategy to succeed.  There have been some court rulings in AZ since his victory that make it much easier for debt buyers to get their court judgments using nothing more than the items you stated you were provided.

But there are other angles that have been successful here in AZ.  If you have a card agreement, look for an arbitration clause.  Chase removed the arbitration agreement in 2010, but I have an agreement from 2002 that includes a 'survivability clause' stating that the arbitration agreement will survive anything short of a nuclear bomb so even though they removed the agreement from subsequent agreements, if your account was issued under an agreement with the survivability clause intact, it doesn't matter what they did in later agreements. Last week one of our guys here sent a debt buyer packing on a $30,000 debt using arbitration.

Also, Midland was directly slapped with a CFPB order a few months back. A couple Maricopa Justice Courts have taken it pretty seriously and the appellate court for said justice courts has also weighed in. Unfortunately, Coconino justice courts are not under Maricopa's jurisdiction so there's to telling how it will play out there. If you can get the 'nice' judge to hear you out over it, you'd probably do well. 


Here's the CFBP article on the consent order:
http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

I've seen some of the posts between the last few by beergoggles and yes - that 30k arbitration win, wow. There seems to have been a lot of changes including the Consent Orders and some other things in favor of the consumer, as well as changes in tactics by Midland. I'll admit that I'm really scared and honestly didn't get much sleep last night, and my anxiety is through the roof right now. But I am still glad I am here, to learn.

+ Is it possible to find the Maricopa cases involving the Order, and how do I go about that?

+ Will I need to include copies of those cases as well as the Orders when they come asking for discovery (and is discovery the same as a document request)?

+What if they don't have account agreements that far back? (I feel like this one is simple but I would still love an answer for clarity, thanks!)

And I'm not sure if requesting the original judge back for our court dates is a thing. Is that a thing? I don't want to be in the court of someone who sees me as a waste of time instead of a party seeking to be heard and needing fair judgement and I don't know if that's something I should even say.

As for the counterclaim, yes, the Plaintiff filed a Motion to Strike and the rude judge sustained that, saying there was nothing viable about it....

Which is not true. The dates provided by the Claims Administrator for the TCPA Litigation case and the dates within the police report are a match, and I can personally confirm that Midland were the only ones calling me well past the point of harassment. -> I was unemployed at that time and they were the only ones blowing up my phone for two weeks with a bot and then 20+ calls in one day from several humans. The FDCPA violations were calls made that same day to both my mother and brother with empty threats, personal information regarding myself and the alleged debt, and general fake name/business lies.  It is very, very relevant.

I'll get to scanning what I have, though in the wake of the MTS Counterclaim I'll be missing the info from the Claims Admin and a statement from my mother. There was intent to include a statement from my brother too but he is on communications blackout where he is stationed with the service. 

Gosh, I hope this isn't too much unnecessary info. 

Back in a bit, thank you all (also, @fisthardcheese, it's really nice to see another mst3k'er around, hello!)

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@3amepiphany  Maybe during discovery you can find out if this is the same company who also has this pledge for how they treat consumers. https://www.midlandcreditonline.com/who-is-mcm/our-pledge/

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general fake name/business lies.

Did this include caller id spoofing? https://consumercomplaints.fcc.gov/hc/en-us/articles/202654304-Caller-ID-and-Spoofing

 

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I don't want to be in the court of someone who sees me as a waste of time instead of a party seeking to be heard and needing fair judgement and I don't know if that's something I should even say.

Maybe Rule 42 f for change of judge @Harry Seaward?

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2 hours ago, CCRP626 said:

Maybe Rule 42 f for change of judge

Since the court has ruled on contested motions, the matter of right request has expired. You can allege in an affidavit that you believe the harsh judge cannot be impartial. The problem is you can't say "I want this judge but not that one" so you will probably end up in another court with completely different judges all around. 

2 hours ago, 3amepiphany said:

As for the counterclaim, yes, the Plaintiff filed a Motion to Strike and the rude judge sustained that, saying there was nothing viable about it

This is the problem with raising federal claims in a limited jurisdiction court.  Depending on how the order was worded, your claims may have effectively been dismissed in which case res judicata applies and (aside from successfully arguing to have the dismissal reversed) you can no longer pursue them, even in a federal court.

I would now focus on getting a chase card agreement from 2008 or whenever you opened the account and getting this case into arbitration and if that fails, hammer hard on the CFPB order. It was suggested in another thread to motion the court early on to take judicial notice of the CFPB findings and I think this is a great suggestion.

Someone said they had luck contacting the OC to get an older agreement and someone else said they had luck getting the CFPB to put pressure on the OC to provide the agreement. 

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Hi, howdy!

Here is a .pdf of the documents I have so far. I also realized what was missing was the TCPA Litigation postcard, but that I suppose isn't much. I also noticed for the first time a notation on the MTS that they listed there being a remedy for late counterclaim? I am not aware of this and when I had filed that counterclaim I had the law library assistant helping me step by step on it?  How did we both miss this? :/ Bummer.

And for the motion for judicial notice, how early is too early? Can I walk on down to the courthouse tomorrow on my lunch break to file that? Will I need to disclose a copy of the Order along with it? (I'll be surfing the threads looking for this info but in the event you get to it before I do...?)

Thank you!

asof462016.pdf

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The police report says  "bank of America" but the OC is Chase?

The remedy for filing counterclaims is to amend your answer. You had 21 days to amend the answer as a matter of right. Now that you're past the 21 days you must get leave of the court to amend. The rule (119) says "Leave to amend must be freely given when justice requires." I would argue that you have claims against the plaintiff and justice cannot be served if you are not permitted to amend.

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Hi, everyone, sorry for the silence, it's been a rough work week. Attached is a PDF of the items I received in the mail Friday and yesterday.

I've received the trial date paperwork in the mail but now I have a problem - I will be well, WELL out of town on this date. If I need this changed, whether earlier or later it does not matter, is this going to be a damning issue? I cannot move this trip and will not be back until that following Tuesday, but I do not want to appear telephonically out of respect for the court and I'm afraid it's going to affect a judgement if I ask to move the date.

For some reason the Plaintiff doesn't list the second item (the unjust enrichment) in their disclosure statement, they are presenting the witness via affidavit (can they do that???), and their list of items goes no further than what they've already provided me. No questionnaire, nothing. I was expecting more, but it looks like that is all they have, plus whatever I provide.

Is it a safe plan of attack to file that Motion for Judicial Notice and request the Leave to Amend and a trial date change (if possible) to be processed while I work on obtaining a copy of the cardholder agreement to seek arbitration?

What does the court form mean when it says "The trial will not be continued unless a motion to continue is filed with the court [...]"? Not that I am reaching for anything with that, it's just confusing to me and I can't find anything helpful on Google. 

Thank you all so much so far. 

asof4102016.pdf

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It looks to me that at least two items on this disclosure statement may be violating the CFPB consent order with Midland.

First they claim "breach of contract" and state that the debt comes from a credit card agreement, but they have not provided the card agreement nor listed it as one of the evidence they intend to present to the court.

Then this line, "other information, documents and witnesses ... will be disclosed as it becomes available".  I believe that the Midland consent agreement stipulates that Midland must have any and all documents pertaining to a suit BEFORE filing the lawsuit.

But, regardless, that is just something I would add to an arbitration claim and possible CFBP complaint later.  You still need to file a MTC with the court to get this to arb.

 

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So their disclosure is standard issue and there's nothing really much to say about it. It will probably get admitted at trial.

Here's what I would do in this order:

1.) Get ahold of whoever you need to in order to get a copy of the agreement. 

2.) Send a letter to Midland's attorney to notify them that you are electing private contractual arbitration in accordance with the credit card agreement. 

3.) File a notice with the court that you believe the claims to be subject to private contractual arbitration, you have notified Midland that you have elected arbitration, you are in the process of obtaining a copy of the original agreement, you expect to have it within 30 days and you will file a motion to compel arbitration as soon as you receive the agreement.

4.) Along with the above notice, or some time after, file a motion for the court to take judicial notice of the CFPB order.

5.) Also along with the notice or some time after, file a motion to continue the trial an additional 30 days.

6.) When the agreement shows up, file a motion to compel (be sure to cite A.R.S. 12-1502) and attach the card agreement and affidavit swearing the agreement is the correct one for your account. 

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Hey, everyone - some interesting.

I've called Chase and they have told me that they did not have any of my account information as I could not provide an account number, and they didn't have any of my personal info available. So I contacted MCM and they had stated that they had a letter on the way to me with information regarding the account for me to use for reference.

I waited a week and a half for this and received it yesterday - they're legally obligated to provide it, yadda yadda, so I took this information and called Chase back with it, and voila - they had me in the system, but could not access the account any longer. I asked them if they would at least be able to send me a Cardmember Agreement and they said they no longer had any of that information at all, but Midland Credit would, being the new account owners.

So I gave Midland a call and they shuffled me around before I got anyone who could help me, and they did not have any Cardmember Agreement, they asked "what Cardmember Agreement? All we have is an account balance, a last sent statement, and the bill of sale. Would you like to file a dispute for validation?"

I spent a few minutes saying I do not want to file anything with them that could disrupt the court case, and then they wanted to make me an offer to settle the account.

I'm really confused. If Chase doesn't have the Agreement, and MCM doesn't, and I don't..... who does, and what does this mean if it can't be found??

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Thank you - I saw this, but when I click into it for debt collection and it asks in that little dropdown, "Which of these best describes your issue",  I don't know which of these applies to this situation.  I had called them to access more information about the Consent Orders on their site and they walked me through some other things like Amicus step-by-step, and figured they could help me with this as well or help me file a complaint over the phone. Unless this forum knows which of these I should use?

I'm sorry to need such hand-holding, I know it seems lame. It's even lamer needing it. Thank you, though!

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Go for Credit Card in the Complaint link. On the CFPB card agreements database they say- By law, the issuer must make your agreement available to you upon request. If you are having trouble getting your agreement, let us know by submitting a complaint. As mentioned earlier, make sure you ask for the agreement for your account in 2009 or earlier since they got rid of arbitration in 2010. Look for a survivability clause so you can point out arbitration was not eliminated by subsequent agreements.

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