Sued by Midland Funding LLC in KS

[Sued In KS]

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.) Berman & Rabin

3. How much are you being sued for? $4,565.07

4. Who is the original creditor? (if not the Plaintiff) Webbank/Dell Financial Services LLC

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

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? They filed a case originally in Johnson County.  I sent a certified letter to Berman & Rabin requesting validation of the debt, but did not receive anything back.  I believed that they had dropped the case.  When I checked the records on line it shows they terminated the case in Johnson County to transfer Venue.  

9. What state and county do you live in? KS and Wyandotte

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 07/20/2013

11. What is the SOL on the debt? To find out: I believe 5 years

Statute of Limitations on Debts

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).  Summons

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I requested validation of the debt with the original information, but that is all.

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. Yes, and received nothing back.  I did not keep a copy of the certified letter.

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? Court appearance is 6/27/2016, on the alias summons is I need to:

1. what dispute is

2. any affirmative defenses you have to the claim

3. your/attorney's current address, phone number, fax number and email address

The petitions are:

Count 1 - Account Stated

1. Webbank/Dell Financial Services and Defendant had previous transactions related to a credit card issued.

2. Webbank sent Defendant monthly statements which the Defendant did not object

3. Plaintiff is the holder of a valid assignment of the Defendant's Webbank account

4. Balance is $4,565.07

Count 2 - Breach of Contract

5. Plaintiff restates and re-alleges each and every averment in paragraph 1 through 5

6. Webbank and Defendant entered into an agreement whereby Webbank extended credit 

7. Webbank fully abided by the terms and conditions

8. Defendant failed to make payments

9. Defendant breached agreement by failing to pay the amount owed

10. Plaintiff is the holder of a valid assignment of Defendants agreement with Webbank

11. Plaintiff has fully performed to the terms

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing attached

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[Brotherskeeper]

@Sued In KS

Welcome. (I am not a lawyer and know nothing about Kansas court rules and laws.) Others here will likely come along to help. To get you started, you might familiarize yourself with the arbitration strategy:

http://www.creditinfocenter.com/community/forum/199-arbitration/

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_6868.pdf

Above is the current WebBank Dell Preferred Account Credit Agreement from the database of the Consumer Financial Protection Bureau (CFPB), provided to CFPB by WebBank. It contains an arbitration clause. You said no contract was provided with the summons. Do you have a copy of the original agreement from when the alleged account was opened, or from 2013 when the account allegedly went into default? 

[Brotherskeeper]

@Sued In KS

Here is a resource you may find helpful:

http://www.kansaslegalservices.org/node/1971/big-fines-abusive-debt-collection

[BummedByDebt]

First off I am not a lawyer and am only speaking from my own limited personal experience. The most important thing you can do is READ READ READ what is on this site and educate yourself as to the options available to you.

If you have ANY correspondence whatsoever or any phone calls or voicemails recorded from the lawyers or Midland you might want to look into consulting with a consumer protection lawyer. The NACA website has a good list of lawyers who specialize in these cases. If either Midland or its lawyers have committed any violations the lawyer will usually know right away and might be able to get them to go away and get paid by THEM, so you don't have to pay anything. The lawyer might also be willing to do an initial consultation for free and give you some advice or even work out something with you regarding paying them to help you with it or to help you settle it.

Arbitration seems like a good route many times for debts is this range (only think that from reading the forums, not even from my own experience). You will want to read up on it and BE CAREFUL that you MAY need to file for Arbitration BEFORE you file an answer, if you decide that is the route you want to go! If you file AFTER you answer, sometimes the JDB will fight it and the Judge may rule for them (I have had that happen to me).

If you decide against Arbitration you need to ask the court what exactly they have filed, if anything, with the pleading/petition. I don't know the rules of Civil Procedure for Kansas, but if all they filed with the court is a pleading saying "hey she owes us money", with zero evidence or exhibits attached, you could probably start out with a Motion to Dismiss based upon all sorts of things, namely Lack of Standing to sue. "Plaintiff has failed to show ANY evidence that it  is the legal owner of any debts, contracts, or agreements with the Defendant." Course that is just a crude example and you would want to include much more along with Kansas case law and the Kansas rules of procedure to back up your motion/request.

I would assume that my motion to dismiss was going to fail (if it were me, hope for the best but plan for the worst) and have an answer ready along with any affirmative defenses you might have. Deny everything. "Plaintiff has provided insufficient information or evidence to prove their claim and therefore the Defendant must deny." Again its just a generic answer, you have to answer each part of each count, and I have seen answers much better on the forums than the one I just gave, its just to give you an idea.

Affirmative defenses are a little trickier and I don't really know or understand them as well, from my limited experience. It sounds like you might have some type of Affirmative Defense based upon sending them a DV letter that they didn't reply to? I would read up on those if you decide to answer this and deal with it yourself, and there are many people in here who are very smart, experienced, and knowledgeable about such things!

Make sure you file an answer no matter what, at the very minimum, as they will hope to get a default judgment against you if you don't!

Good luck and keep us updated how it goes.