Midland Funding suing--Help

[ted88]

1. Who is the named plaintiff in the suit?   MIDLAND FUNDING

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)    GAMACHE & MYERS

3. How much are you being sued for?  $2330.00

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

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)  GAVE SUMMONS TO FIANCE

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?  NONE

9. What state and county do you live in?  MISSOURI, JACKSON

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  NOT SURE & NOTHING ON PETITION

11. What is the SOL on the debt? To find out:  5 YRS

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).  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?  SUMMONS STATES TO APPEAR BEFORE THE COURT ON THE DATE, TIME & LOCATION TO ANSWER THE ATTACHED PETITION.    PETITION STATES: 

COUNT I – SUIT ON CONTRACT

COMES NOW, Plaintiff, MIDLAND FUNDING LLC, and for its cause of action against Defendant(s), states as follows:
     1. All times pertinent therein, Plaintiff was at all times relevant herein a A LIMITED LIABILITY COMPANY, duly organized and existing under law. 
     2.  Plaintiff is the holder of a valid assignment of an account previously owned by CITIBANK NA with an account number ending in xxxxxxxxxxxxXXXX.
     3.  Defendant(s) is/are resident(s) of <<county>>, Missouri. 
     4.  CITIBANK NA and Defendant)s) had a contractual relationship, whereby CITIBANK NA extended credit pursuant to the terms and conditions of a credit agreement (hereinafter referred to as “Agreement”) and Defendant)s_,  in exchange for the use of the credit extended, agreed to pay CITIBANK NA for all amounts due resulting from the authorized use pursuant to the Agreement, including any finance charges and any other charges due under the terms of the Agreement .
     5.  CITIBANK NA fully abided by the terms and conditions as set forth in said Agreement. 
     6.  Defendant(s) has/have not made all payments to CITIBANK NA pursuant to the Agreement. 
     7.  CITIBANK NA sent monthly statements to the Defendant(s).
     8.  Defendant(s) breached the Agreement by failing to pay the amount owed. 
     9.  As a direct and proximate result of the Defendant’s breach of the Agreement, CITIBANK NA has sustained damages, and there remains due the outstanding sum of $2326.00.
    10. CITIBANK NA has fully performed, pursuant to the terms of the Agreement or its performance has been excused due to Defendant’s breach. 
    11. CITIBANK NA and/or Plaintiff, has made demand for payment of the outstanding sum due, but Defendant(s) has/have failed and refused to pay. 
    WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count I against Defendant(s), in a sum of $2326.00 plus all costs expended herein and for any other and further relief this Court deems just and proper. 

COUNT II – ACCOUNT STATED

COMES NOW, Plaintiff and for its alternative cause of action against Defendant(s), states as follows:
     1.  Plaintiff restates and re-alleges each and every paragraph of Count I as if fully set for the herein. 
     2.  Defendant(s) and CITIBANK NA had previous financial transactions related to the Agreement issued to Defendant(s) by CITIBANK NA, at Defendant(s) insistence and request.
     3.  As a result of the transactions initiated by Defendant(s), CITIBANK NA sent Defendant(s) statements of account, to which Defendant(s) did not object.
     4.  Defendant(s) use of the credit and failure to pay the balance reflected in the statement of account issued as a result of the use of credit, or Defendant(s) failure to object to the balances as reflected in the statement(s) resulted in a promise to pay the amount due. 
     5.  The balance agreed to by the parties is $2326.00.
     6.  The Defendant(s) has/have failed to keep his/her/their promise to pay said balance, despite demand for same having been made.
     7.  Plaintiff is the assignee of CITIBANK NA to be repaid by Defendant(s) on the account, and it is entitled to recover from Defendant(s) the sum of $2326.00, that being the balance due through November 24,2015.
     WHEREFORE, Plaintiff, MIDLAND FUNDING LLC prays for judgment in Count II against the Defendant(s) in a sum of $2326.00, together with all costs expended herein and for any other and further relief this Court deems just and proper.      
 

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.  1. AFFIDAVIT THAT STATES:

Amanda Frahm, whose business address is 16 McLeland Road Suite 101, St. Cloud, MN 56303, certifies and says:
   1.  I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age,  and make the statements herein     based upon personal knowledge of those account records maintained on Plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Defendant’s CITIBANK, N.A. account xxxxxxxxxxxxXXXX (MCM Number xxxxxxxxxx) (hereinafter “the account”). I have access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on Plaintiff’s behalf. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account., together with records generated by MCM in connection with servicing the account since the date the account was purchased by Plaintiff. 
   2.  MCM’s records show that Defendant(s) owed a balance of $2326.00 as of 2015-11-30.
I certify under penalty of perjury that the foregoing statements are true and correct. 

Dec 10-2015    
                                                                                                                                                                                                                                                       <<signature>>    
                                                                                                                                                                                                                                                        Amanda Frahm

STATE OF MINNESOTA
COUNTY OF STEARNS

Signed and sworn to (or affirmed) before me on Dec 10 2015 by Amanda Frahm.

<<ink stamp with name of
Sheri Lynn Meline
Notary Public – Minnesota                                                                                                                                                                                 <<signature of initials only>>
My Commision Expires Jan. 31, 2020>>                                                                                                                                                           Notary Public
 

2.  ONE BANK STATEMENT FROM CITI THAT HAS NO TRANSACTIONS OF ANY KIND AND I QUESTION MY ADDRESS THAT IS ON IT.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits  HAVE READ THE ARTICLE, READ CACH VS ASKEW & READ MANY FORUMS BUT STILL CONFUSED HOW TO PROCEED. 

====================================================

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

[CCRP626]

Private contractual arbitration through AAA would be an option or study up on threads to fight them in court.

 

[ted88]

I have managed to confirm the nagging question about my address on the one card statement from Citibank that was attached to the petition. The statement didn't look quite right where my address is, as this is also the part that you detach & send in with a payment, the coupon they tell you to use when you pay by mail. It did not have the Citi logo on the upper left corner with a P.O. Box plus city & state under the logo. It is just blank. Also, there are none of the little bar codes above my name & under the address of Citi Card Processing Center (this is where it would show in the little window of their return envelope).  I say all this due to the fact that my mother was able to find an original card statement,  from Citibank that would have been for the month after the one attached to the petition. The one on the petition is dated from 03/xx/13 - 04/xx/13 & the one I have starts the day after the one they attached, 04/xy/13 - 05/xx/13. The one they attached has my current address & was not may mailing address back then,& the statement I have, has my mailing address back then. I strongly believe their statement is falsified. How & when should I present that to the court?

[CCRP626]

How do the totals compare, does the ending balance on one match the starting balance on the other?

[ted88]

Yes, the ending balance on one is the start of the other. 

 

[CCRP626]

@ted88 does it just look like a generic statement that wouldn't mislead anyone to think it came from Citi since it doesn't have a Citi logo or would you say it's a fairly good attempt to appear like original account level documentation Citi would have sent you in the mail in 2013? Without it affecting your case you could report it in a CFPB online complaint against Midland as well as send to Missouri Atty General. You can also do a BBB complaint as well. I'd probably set up an appointment with a consumer attorney as well to have him/her look at what they've sent. If they're really falsifying documents to look like they came from Citi I could see the attorney taking on the case at no charge, getting paid by the other side. http://www.consumeradvocates.org/find-an-attorney

I'd look into filing your Motion to Compel Private Contractual Arbitration and have this as part of your arb filing for potential FDCPA and state consumer law violations. An approved MTC Arb will give you a court order to arb which Midland will have to follow you in or be in violation. It won't be cost effective for them to arb so you'll have settlement leverage leading to dismissal of your court case. Citi's card agreement makes arb very expensive for the Plaintiff, so nothing a cheap JDB wants to do.

If you were planning on staying in court, Motion to Strike that statement, including an affidavit that is not your address at that time. Midland is under a CFPB order to provide an original creditor statement showing usage of the account they're suing on, so this may be one way they're trying to comply and if it's a fake statement, they'd be in violation.
 

[ted88]

The statement they have is the exact same as the one I have with the exception of the bottom part of the statement, the detachable "coupon" that you usually send with your payment in the return envelope. The Citi logo & that info is missing, under that was 'Your Statement is Inside', is missing on theirs, then those barcode type things that I stated that are missing on theirs and also above the barcode above my name there are letters & numbers (about 39 of them) that are missing on theirs. The rest of their statement is the exact same as the original I have. 

[BV80]

7 minutes ago, ted88 said:

The statement they have is the exact same as the one I have with the exception of the bottom part of the statement, the detachable "coupon" that you usually send with your payment in the return envelope. The Citi logo & that info is missing, under that was 'Your Statement is Inside', is missing on theirs, then those barcode type things that I stated that are missing on theirs and also above the barcode above my name there are letters & numbers (about 39 of them) that are missing on theirs. The rest of their statement is the exact same as the original I have. 

You said the statement is exactly the same except for the detachable payment coupon.  Does the statement show "Citibank" anywhere on it?

[CCRP626]

Anything coming from the original creditor should have an affidavit from a Citi custodian of records or the document doesn't meet the business records exception to the hearsay rule.  http://www.moga.mo.gov/mostatutes/stathtml/49000006921.HTML

If a document looks fishy you could also bring up the best evidence rule. You want to see the original although they may say you were sent it years ago but you want to know where what they provide has came from.

 

[ted88]

They have that blanket affidavit from someone at MCM & not from Citibank.  Here is a link to what one of their statements looks like:

 https://www.citicards.com/cards/wv/html/cm/know-the-rules/how-credit-cards-work/how-to-read-your-statement.html

Maybe that will help show what I am trying to explain. 

 

[CCRP626]

For their suit I, breach of contract, I'd see if Missouri considers a credit card a written contract then if they didn't attach the cardmember agreement also request dismissal under Rule 55.22. Pleading Written Instrument-When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.

you can also reference the CFPB order which require breach of contract (written or unwritten) to include the terms and conditions. An original Citi statement matching the lawsuit amount will also need to be provided. Full, authenticated by each owner chain of title showing your account at each transfer.

See Midland CFPB order pages 34-36 for lawsuit initiation requirements for docs to request, they have 30 days to get them to you- http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

You can request that without entering formal discovery.

For their account stated claims, you can also reference the CFPB order against Citibank for debt sales to push for original statements authenticated by Citi since the electronic files have been found in error. In your discovery you could request the forward flow and other sales documents to see what guarantees were provided by Citi.

http://files.consumerfinance.gov/f/201602_cfpb_consent-order-citibank-na.pdf

https://www.nclc.org/images/pdf/conferences_and_webinars/crlc2013/material/j2-understanding-forward-flow.pdf

[ted88]

Here is what I found on this site:  In Missouri, The written account statute of limitations is 10 years; the open account statute is 5 years.  If the creditor is able to produce a written credit card contract, then the 10 year statute applies. If the creditor cannot show the existence of a written contract, then the 5 year statute would apply – credit card or not.  Here is case law in Missouri to illustrate this point:  

[CCRP626]

@ted88 five year applies, terms and conditions aren't a written contract. CFPB still requires them to produce the contract.

See Capital One Bank v. Creed, 220 SW 3d 874 - Mo: Court of Appeals, Southern Dist., 1st Div. 2007 for statute of limitations as well as when the clock starts.

Since their breach of contract mentions both an agreement between you and Citi and one between Citi and them and none are provided, a Motion for more definite statement/dismiss if they don't comply still seems appropriate, as well as strike their statement. Rule 55.27 allows pre-answer Motion to state defenses. They may be able to explain their way out of this with written contract doesn't apply to credit cards (and throw in a terms and conditions with arb in it to help with your potential MTC Arb filing) but still have to explain the assignment missing and how that isn't a written contract they're basing their claim on. If the Judge requires an answer later on, make sure in your affirmative defenses you include standing for the same reason. Also, include private contractual arbitration as an affirmative defense, always mention that in any paperwork even if it's only your belief until an agreement is provided. It's your belief Citi does not issue credit card accounts without this option based on Citi agreements provided to the CFPB. Another affirmative defense will be their failure to comply with the CFPB order (check the court's online case detail to make sure the lawsuit was filed after Sept 9, 2015)

ASAP, send your request for the CFPB docs to Midland Funding P.O. Box 939069, San Diego, California 92193. See if you received anything in the mail from them after Sept 9, 2015. That is supposed to have this request detail in it even if a lawsuit wasn't filed at the time. See "Legal Collection" definition at front of Midland order.

[ted88]

I have read the CFPB consent order & have it printed out. According to the court, Midland filed the lawsuit in Jan. 2016. I don't have any knowledge of being contacted by Midland at all prior to the filing of the lawsuit. I checked my credit report & Midland is now on there with a 'Placed for Collections' as the 2nd week of June 2015. 

[CCRP626]

@ted88 this might be useful, written by a Missouri Consumer Atty on Account Stated. Note 9% interest rate limit.

http://www.lsmo.org/sites/lsmo.org/files/Account Stated CLE slideshow 10-22.pdf

[Jking57]

2 hours ago, CCRP626 said:

 

@ted88 this might be useful, written by a Missouri Consumer Atty on Account Stated.

http://www.lsmo.org/sites/lsmo.org/files/Account Stated CLE slideshow 10-22.pdf

Excellent resource and find, thank you for posting. Below are a few others...

https://works.bepress.com/peter_holland/9/

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2079155

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1875727

http://www.courts.ca.gov/partners/documents/2011SRL5eRooney.pdf

 

[ted88]

Update so far: I did file a complaint with the CFPB, a month ago, & I guess I missed the part where they send the complaint to Midland pretty much immediately.  As soon as I saw that, I worried that it could hurt me in court, but it was sent. I had to appear on the 24th to answer their petition & next hearing is this week. I realized that I was not going to be able to do this on my own, as my plate is too full, & I was able to find an attorney,. He pretty much had filed, & sent, Midland's attorney, Affirmative defenses & for Production of Doc Things before I had even walked out of court on the 24th. Evidently, this past Friday, Midland has filed an order for extension to respond to 'my' discovery.  

I had totally forgot about the CFPB complaint until I got an email stating that there was a response to it, this past Friday. Since I had pushed it in the back of my mind & forgot about it, I hadn't told the attorney yet & even though my attorney has asked for the things that I mentioned in my complaint, I still am worried. So, I have to call him later this morning. In their answer to my CFPB complaint, the first thing said, by MCM, is that by their records they see that I have an attorney & in going forward, all communication of this matter should go thru my attorney. BUT they continue to explain some things in my complaint & additional things, then also said that they encourage me to have my attorney work with their attorney to assist in reaching a positive resolution. They also attached the boilerplate bill of sale & assignment, an affidavit , a Certificate of Conformity, & an Asset Schedule that is ALL redacted but a sentence with some of the redacted. Even a possible date on it is redacted. 

After I read this, early Friday evening, I went online to where I could look at info on the lawsuit against me. I had checked it earlier and there was nothing new for entries, but now there was. Midland has filed an order for an extension of time to respond to 'my' discovery.  I find it odd that they file for an extension but yet had items attached in the CFPB info.  Am I just thinking to much about it or should they have NOT said anything after 'all communication about the matter should go thru my attorney?' 

Thank you for the assistance & I am still going to research, when I am able, in assisting with my defense and to better inform myself, too. I also wanted to update, in case someone else is needing anything & everything to assist with their Midland issues. 

 

[CCRP626]

@ted88 the CFPB complaint for the required detail to be provided within 30 days has nothing to do with court discovery. Some courts, such as small claims in some states do not even allow discovery. That doesn't relieve Midland of the CFPB order or place it under discovery rules. It's simple, they initiate a lawsuit and they have the info on hand to give you within 30 days after your request which you gave under the complaint. No reason for an extension and they could have provided you a copy and later one to your attorney. Missouri Rules of Evidence has Judicial Notice to have the CFPB order entered. http://law.justia.com/codes/missouri/2005/t33/4900000080.html

I'd suggest comparing the line by line requirements of the CFPB order to what you've been given. In the CFPB complaint there should be room for your response to what they've provided where you can indicate the required information has not been provided to you or your attorney to comply.

[BV80]

10 hours ago, CCRP626 said:

@ted88 the CFPB complaint for the required detail to be provided within 30 days has nothing to do with court discovery. Some courts, such as small claims in some states do not even allow discovery. That doesn't relieve Midland of the CFPB order or place it under discovery rules. It's simple, they initiate a lawsuit and they have the info on hand to give you within 30 days after your request which you gave under the complaint. No reason for an extension and they could have provided you a copy and later one to your attorney. Missouri Rules of Evidence has Judicial Notice to have the CFPB order entered. http://law.justia.com/codes/missouri/2005/t33/4900000080.html

I'd suggest comparing the line by line requirements of the CFPB order to what you've been given. In the CFPB complaint there should be room for your response to what they've provided where you can indicate the required information has not been provided to you or your attorney to comply.

Your reference to judicial notice is very helpful.  Thank you! 

However, a consent order is not a law, statute, or even a court ruling.   The OP might need to consult an attorney regarding the MO statute.

If the order is not subject to judicial notice, I think it would still be admissible considering it's available for viewing on the CFPB website. 

[semo123]

Fellow Missourian being sued by midland. Any updates on your case and the defense you chose?