Military Spouse, Midland Funding LLC Lawsuit

[loonytoony13]

My wife and I live in Arkansas and I am currently active duty Air Force. Yesterday I received a knock on the door and it was a server here to serve my wife a lawsuit from Midland Funding LLC. I accepted the stack of papers and called my wife to inform her. The claim is we owe Midland less that $1,000 and legal costs, the original creditor was Credit One Bank. We have 30 days to file the response and I have drafted it up deny all allegations. I am curious how we should go about this lawsuit and also kind of nervous at the same time (my wife is a wreck right now). I have seen many articles, forms, videos, and sample motions and I have come up with the following possibilities. The cardholder agreement had a arbitration agreement and have seen many people doing this instead of going to trial (or attempting trial). On the other side I feel the affidavits they sent are bogus and we can fight it and win it. We are currently trying to contact lawyers and our base legal staff regarding this matter. Any advice or words of encouragement would be greatly appreciated by myself and my family.

[Clydesmom]

For less than a grand I would invoke that arbitration clause and start causing Midland all kinds of headaches so that ultimately they agreed to a dismissal with prejudice and dropped the whole thing.  While you probably could fight them in court you need to know that Arkansas is a creditor friendly court system and if it is already making your wife a wreck having to defend herself in court is probably going to KO her.  You cannot represent her in court unless you are a lawyer.  

[Jimmy E]

@loonytoony13, while I don't know your specific situation, the fact that you are active military can help your spouse.

The 'Servicemembers Civil Relief Act' is a powerful tool in halting debt collections.  I recommend you go to the Arkansas Legal Services for FREE information.  You can even call them to get more information.

I noticed on many debt collection lawsuits filed in Arkansas, there is a line on the complaint that says:  "I have no reason to believe defendant is active military,' or some such.  This includes your FAMILY.  There is clearly a hurdle for JDBs to jump if you are in the military in Arkansas.  I would find it if I were you.

Good luck!

Jimmy

 

[CCRP626]

You should get with your base legal office http://legalassistance.law.af.mil/content/locator.php . Like Jimmy says, they have to go through a database to meet the servicemember relief act. Midland themselves in their we do nothing that isn't consumer friendly blurb, covers military as well- https://www.midlandcreditonline.com/who-is-mcm/our-pledge/

We actively seek to identify active duty servicemembers and stop collections from those servicemembers.

File a complaint with the CFPB and also see the Military Lending Act section there- http://www.consumerfinance.gov/servicemembers/

 

 

[Clydesmom]

37 minutes ago, Jimmy E said:

I noticed on many debt collection lawsuits filed in Arkansas, there is a line on the complaint that says:  "I have no reason to believe defendant is active military,' or some such.  This includes your FAMILY. 

NO NO NO.  The SCRA does NOT include family.  It never did.  It only protects the active duty service member.  

15 minutes ago, CCRP626 said:

Like Jimmy says, they have to go through a database to meet the servicemember relief act.

Jimmy is completely WRONG on this one.  Midland sued the spouse and spouses/family are NOT protected by the SCRA.  

" The Servicemember's Civil Relief Act of 2003 (SCRA), formerly known as the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), is a federal law that gives all military members some important rights as they enter active duty. It covers such issues as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, automobile leases, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, and income tax payments. It also provides many important protections to military members while on active duty. "

NOTICE:  NO WHERE in there does it say and your family.  It only identifies the active duty service member.  

20 minutes ago, CCRP626 said:

File a complaint with the CFPB and also see the Military Lending Act section there- http://www.consumerfinance.gov/servicemembers/

Even the page you linked to states it only covers "service members" it does NOT cover family.  That is exactly why Midland only sued the wife.  She has no SCRA protection.  

 

[CCRP626]

Maybe let the OP get with base legal before you side with Midland? Spouses have protections under the Act. Midland serving only the wife could be a convenient way to attempt to avoid the Act. Wife isn't on the database so we didn't think it applied. Word search spouse and dependent.

https://www.justice.gov/crt-military/servicemembers-civil-relief-act-scra

The SCRA also provides certain benefits and protections to servicemember dependents and, in certain instances, to those who co-signed a loan for, or took out a loan with, a servicemember.  The term “dependent” includes a servicemember’s spouse, children, and any other person for whom the servicemember has provided more than half of their financial support for the past 180 days.

https://www.saveandinvest.org/military-important-legislation/getting-know-servicemembers-civil-relief-act-scra

https://www.veteransunited.com/spouse/5-ways-the-servicemembers-civil-relief-act-scra-can-help-military-spouses/

 

[Clydesmom]

3 hours ago, CCRP626 said:

Maybe let the OP get with base legal before you side with Midland?

I didn't side with Midland.  Clearly you have NEVER been in the military because going to base legal is NOT always a good idea.  The service member can actually be disciplined for not managing their finances and being sued.  Even if it is only the spouse it can cause major problems for the service member. 

Apparently you also failed to read the two posts where I clearly told him to file for arbitration to send Midland packing.  This is the fastest and easiest way to deal with it without risking his military career.

3 hours ago, CCRP626 said:

The SCRA also provides certain benefits and protections to servicemember dependents and, in certain instances, to those who co-signed a loan for, or took out a loan with, a servicemember. 

This is NONE of those situations.  It provides benefits when having to break a lease and co-signing.  NOT for credit card debt unless the service member is being sued. 

[CCRP626]

Yes, if you read the act if applies to situations beyond a lease including credit card debt. It's regularly updated as well which provides an excuse for your earlier statements such as the act has never applied to anyone beyond an active duty service member as you posted. The SCRA also handles situations such as a stay for a lawsuit as well as retaliation. Your advice to run to arbitration to hide an alleged debt is similar to the scare tactics used where debt collectors threaten to contact a commanding officer to get paid. Are you telling the OP threaten arbitration or pay Midland but anything else they do including seeking legal help will result in a potential Article 134 UCMJ issue?

[Credithis]

The SCRA most definitely protects the spouse.

 

[BV80]

Perhaps the OP should contact a nonmilitary attorney to find out if his spouse would be protected in the current situation.

Dependents are covered under certain circumstances but not every circumstance.  For instance, if the account is in his wife's name, in this instance the SCRA may not apply to her.

https://www.law.cornell.edu/uscode/text/50/chapter-50

[Clydesmom]

1 hour ago, BV80 said:

Perhaps the OP should contact a nonmilitary attorney to find out if his spouse would be protected in the current situation.

Depending on his rank and job rating he should.  It isn't worth risking a general discharge over this one debt.

1 hour ago, BV80 said:

Dependents are covered under certain circumstances but not every circumstance.  For instance, if the account is in his wife's name, in this instance the SCRA may not apply to her.

Which is what I said but you can't tell some people that.  It isn't what they want to hear.

[Jimmy E]

The primary purpose of the SCRA is to ease legal and financial burdens on military personnel and their families brought on by the demands of active duty. In the words of the Act, the provisions were designed to allow service members to "devote their entire energy to the defense needs of the Nation."

That being said, and without reading the entire legislation (amended umpteen times), I believe a 'small claims' judge, who has broad decision-making power, would count the "family" being under that umbrella of the SCRA, if mentioned -- just my opinion -- especially if the military member counts spouse as a 'dependent.'

As many have said, the OP should contact a military or non-military legal representative.  Otherwise, forget the military argument altogether, and consider using advice throughout this forum regarding 'Midland vs. Anybody!'

Good luck!

Jimmy