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Mrs. Defendant

Sued by Midland Funding, Oregon, Time Barred Debt

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Hello everyone, I am hoping I can ask for your help. 

On October 5th,  my husband was served a summons/complaint regarding a long closed credit account from Wells Fargo. It has been over 6 years (our state's SOL) since the last activity on the account, so it should be a time barred debt. The account was in his name only, but I am doing all I can to address this promptly and thoroughly for him since he is always working. 
We called a local consumer rights attorney for a free consultation, but he didn't seem to think we should file an answer. He said that we should mail a certified letter to the lawyer who filed the suit/served the papers, informing him of the time barred debt (with proof), but I am confused about this approach. This assumes that they won't continue to press their suit, and from what I understand, these guys are relentless, time-barred or not. Also, wouldn't any correspondence confirming any knowledge of the debt, or the proof from my husband's credit report timeline restart the SOL? 
I have been browsing the forum, and found enough helpful information that I understand a bit more about our rights, and filing an answer, I just need an idea of what to do next.
We're not very good at "legal-ese", so please go easy on me
Thanks very much! :)

1. Who is the named plaintiff in the suit? 

Midland funding, LLC. (sorry about the following quote, I don't know how to get rid of it)

Quote
Quote

 

 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Gordon, Aylworth & Tami.

 3. How much are you being sued for?
$2,900.00 plus "plaintiff's costs and disbursements incurred". I'm amazed no interest was mentioned.

 4. Who is the original creditor? (if not the Plaintiff)
Wells Fargo Bank (credit card).

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.

 8. What was your correspondence (if any) with the people suing you before you think you were being sued?
My husband has had zero correspondence with them, minus receiving letters threatening legal action unless they are paid in full. They have consistently been calling my phone looking for him/even my mother's home phone, but we always hang up.
 
9. What state and county do you live in?
Washington County, Oregon.

 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
July-August 2010.
 
11. What is the SOL on the debt? 
6 years.

 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.  At this point, the case is simply waiting on my answer.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
Yes, my husband has disputed this account every year with the credit bureaus.
 
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?
30 days from the date of service (10/05/2016).

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

17. Read this article:
Okay.
 

The following is the summons/complaint received.

Quote

Complaint: Breach of Contract

for a claim less than $10,000 subject too mandatory arbitration

Total claim: $2.900

1. Plaintiff is a limited liability company, which good and valuable consideration perchased Defendant's Wells Fargo Bank, N.A. credit card account and contract and all of the associated rights thereunder.

2. Defendant, an individual residing in Washington County, Oregon, entered into a contract with Wells Fargo Bank, N.A. for a credit card. The card was issued to Defendant under the acct. number XXXXXXXX.

3. Wells Fargo Bank supplied the card to the Defendant subject to an agreement to repay all amounts charged to the account plus all associated costs and fees.

4. Defendant thereafter used the card and became indebted to Wells Fargo Bank.

5. Wells Fargo Bank performed its obligations under the terms of the contract.

6. Defendant breached the contract by failing to make payments as agreed. As a result, defendant's card account was charged off for delinquency in December 2010 (I'm assuming that's when Wells Fargo first sold the account to the first debt collection agency).

7.As a result of the breach, defendant is indebted to plaintiff in the sum of 2,900.00. Plaintiff is also entitled to actual costs and disbursements.

Wherefore, Plaintiff prays for judgment against Defendant as follows:

1. The sum of $2,900.00

2. Plaintiff's costs and disbursements incurred therein.

 

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@Mrs. Defendant

Check your rules of civil procedure.  In most states, an action is commenced when the complaint is filed.  If the complaint was filed before the SOL has passed, then its timely and not time-barred.

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51 minutes ago, Mrs. Defendant said:

Good to know,  the complaint is dated September 2016, and the last activity on the account was July-August 2010, so that's still outside SOL as far as I can see.

If the charge off date was in December 2010 then it went into default in July 2010.  Charge off happens 6 months after the date of first default.   

52 minutes ago, Mrs. Defendant said:

Good to know,  the complaint is dated September 2016

It very much was filed after the SOL expired.  Here is what I would do,  I would file an answer listing affirmative defenses  1)  SOL:  plaintiff waited too long to pursue a cause of action and therefore is now time barred from action now  2)  Lack of standing, and anything else I can think of.  Then I would file a counter claim for the flagrant violation of the FDCPA:  taking an action they cannot legally take/filing the suit after the SOL expired.  I would also add up all those calls to cell phones and tack on a TCPA claim for $500 per call to drive up the amount to the max allowed in small claims if that is where they filed.

I would also file a complaint with the CFPB.  Midland is under a consent order with them for exactly this kind of crap and the CFPB should know that 

Once that happens they should want to settle VERY fast.  My terms for settlement would be deleting of the trade lines by Midland and they can cut me a check for $3000 plus court costs and we never speak to each other ever again.  

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On 10/11/2016 at 5:06 PM, Clydesmom said:

would file a counter claim for the flagrant violation of the FDCPA:  taking an action they cannot legally take/filing the suit after the SOL expired.  I would also add up all those calls to cell phones and tack on a TCPA claim for $500 per call to drive up the amount to the max allowed in small claims if that is where they filed.

Well, the answer has been filed with the county clerk with plenty of time to spare (We used one of the cookie cutter answers  posted by Huey Pilot), with a copy sent to our friendly neighborhood bottom-feeders.  Today I received a call from the law firm handling the suit, but the number is blocked, so I didn't answer it. Why are they still calling me and not my husband (alleged owner of debt)? weird. Probably more threatening or trying to get us to settle B.S.

I have no idea how to file a counter-claim, and after the expense of filing an answer, I don't think we can afford much more of this. Our justice system certainly appears to be rigged in favor of those with the money to defend themselves... *sigh*

I have tried searching these forums for the next course of action, but I am hopelessly confused. Does discovery come next? Mandatory arbitration? I have no idea.  Washington County is so confusing.

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