ChileStyles

Strange Lawsuit Situation with Midland Funding, LLC

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I have been living in Thailand for the last two years while working as a teacher.   I come back to Arizona when school is out to visit my mom and sister, and am supposed to return to Thailand in May per my contract with my employer.  I haven't spoken to my dad in years but we share the name so he was served papers from Midland Funding that were actually meant for me.   He told me this in a facebook message, I asked him to send me the forms but he hasn't replied.  I don't know if he will or not. We don't really have much of a relationship other than being facebook friends.  This is what I have been able to gather about the lawsuit online:

 

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.)

 I believe it is Law Office of Jennifer Wiedle, PLLC

3. How much are you being sued for?  

In the message my dad sent he said $800, but i'm not sure of the exact amount as this information isn't listed online.

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

Credit One Bank from what I found on my credit report

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

Message from my dad who was served, he has the same name as mine.

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

Unknown

7. Was the service legal as required by your state?

Unknown

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, I have never heard of them before.

9. What state and county do you live in?  

I live in Bangkok Thailand (I can provide proof of this as I am registered to vote while living abroad and have emails from Maricopa County showing that), but currently am staying in Pinal County, my dad was served in Maricopa County and that is where the court is.  My last address in Arizona was in Maricopa County but all of my bank statements show my mothers address in Pinal county.

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

Date of First Delinquency Sep 01, 2013

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

I looked it up online and it only says New Case.  It does not have any case information listed as of yet.  My dad sent me the message on Saturday March 25th, so I imagine that is the day he was 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?

From what I have seen in other threads I believe I have 20 days.

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. 

Unknown

I guess my question is how should I proceed?  Should I just file a motion for arbitration?  How do I obtain copies of the served documents?  I really don't want a default judgement against me, but if it did happen they wouldn't have any avenues to collect it as I have a Thai Bank account (I should note, I do have a couple US bank accounts but there usually isn't much cash in there) and no property or job here in the United States.  But I will move back one day so I would like to get this taken care of while I have a chance.  Any advice on how to move forward would be most appreciated.  Thank you in advance.

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Do you want to challenge the obvious improper serving on the ghost that they served, and since you obviously don't now live there?

 

They have to personally serve you at your current address. It's their job and process servers job to locate where you now live and give you personal and not second hand service.

 

See ie

 

http://www.lawpracticetoday.org/article/facebook-notification-youve-been-served/

 

 

This article shows that getting notice by Facebook is not justified. See Chase case Reference. Use same logic in Motion To Quash outlined below.

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The second question you raised is possible raising defense is lack of subject matter jurisdiction due to arbitration provision in credit card agreement. Argument (A) lack of imperonam jurisdiction is best raised  by filing what's called a Motion To Quash Service of Summons. To do this correctly you should get from the court clerk file a copy of the Return of Service. Once you get that you should use the info in that to dispute whatever it says. If it says that they personally served you on .... date... Then you point that you were in Thailand on that date... So the person service was impossible at that time and that who they served was not you and that you have not lived at that address forever.

 

Argument B

Find or get copy of credit card agreement. If you don't have it get it by  Google cfpb credit card agreements.

 

They have database of credit card agreements for most cc.

 

Lookup your own.

 

Look to see if they have arbitration clause in it. If so file Motion To Dismiss and reference the arbitration clause in it.

 

Also mention the failure to personally serve you as grounds for dismissal.

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Thank you for the replies and information so far, it is a big help.

@creditzar The problem I have with the serving argument is that I am currently in Arizona since Thai schools are currently out for a couple months.  It's the same thing as "summer break" here in the US.  I come back for a couple months until school starts again in May.  They served my dad who has a nearly identical name.  For example if my name was Joe Jack Doe his name would be Jack Joe Doe which would lead the court to believe that I was properly served.  I do not live at the address where he was served.  Do you think I might still be able to get the case dismissed by stating I was improperly served by submitting my employment contract/emails from the Secretary of State of Arizona showing  I am registered to vote abroad?   I wouldn't be able to prove I was in Thailand at the time of serving though, since I wasn't, and my passport clearly shows a exit stamp from Thailand at the beginning of march .  

Regarding the serving process, do you think I could get the case dismissed since I am not currently staying in Maricopa County?  I could provide bank records showing my address in Pinal county.  Would Midland then have to refile the case in Pinal County, and by the time that happened I would be living in Thailand again and couldn't be served causing the case to be dismissed automatically?  Could that potentially work?

 

As for arbitration I was able to find one from 2012 and their most recent one (but not one from 2013 when the card was opened) but they have a nearly identical language regarding arbitration.  

"ARBITRATION AGREEMENT PLEASE READ THIS ARBITRATION AGREEMENT OF YOUR CARD AGREEMENT CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. IN ARBITRATION, YOU MAY CHOOSE TO HAVE A HEARING AND BE REPRESENTED BY COUNSEL. Agreement to Arbitrate: You and we agree that either you or we may, without the other’s consent, require that any controversy or dispute between you and us (all of which are called “Claims”), be submitted to mandatory, binding arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing the Card Agreement. Claims Covered"

"Any arbitration hearing that you attend will be held at a place chosen by the arbitrator or arbitration administrator in the same city as the U.S. District Court closest to your billing address, or at some other place to which you and we agree in writing. You may obtain copies of the current rules of the arbitration administrators, and other related materials, including forms and instructions for initiating arbitration, by contacting the arbitration administrators as follows: American Arbitration Association (“AAA”) JAMS 335 Madison Avenue, Floor 10 1920 Main Street, Suite 300 New York, NY 10017-4605 Irvine, CA 92614-7279 Web Site: www.adr.org Web Site: www.jamsadr.com If neither AAA nor JAMS is willing or able to serve, and you and we are unable to agree on a substitute, a court with jurisdiction will select the administrator or arbitrator."

There is also a clause stating arbitration is not acceptable in small claims court cases.  This case in a Justice Court, is that the same thing as small claims?  I was hoping that if I get it into arbitration it might lead Midland to back off since the dollar amount is only around $800 and might not be worth their time.

@usctrojanalum Hiring an attorney doesn't really seem like a viable option for an $800 debt.  In the US I am considered to be living in extreme poverty based on my wages and in Thailand i'm middle class. $800 is two months of rent and food so i'd like to try and minimize costs as much as possible.    

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2 minutes ago, ChileStyles said:

Briefly many years ago.  I never had the address registered with the MVD or anything though, I'm not sure how they found that address.  

Okay.  According to the AZ rules of civil procedure, the summons and complaint does NOT have to be handed only to you.   It can be left at the address or given to someone who lives at the address.

4.1(d)

(d) Serving an Individual.

(1) delivering a copy of the summons and the pleading being served to that individual personally;
(2) leaving a copy of each at that individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

But if that was not your last known AZ address, you may have an issue to raise.

@Harry Seaward and @Goody_Ouchless are from AZ.  Hopefully, they'll chime in.

 

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@BV80 Awesome, thank you for your help.  I believe I can provide evidence that the address they served is not and has not been my usual place of abode.  I can show them my passport showing I haven't even been in the country until recently and showing that I registered to vote while residing abroad.  I might even be able to come up with my condo lease agreement in Bangkok which doesn't expire until May 2017.  In addition my US bank accounts list my mothers address, not my fathers.  I just emailed my friend who has keys to my condo to see if she could go over and see if she could locate the lease agreement and email a copy to me.  I also look forward to hearing from @Harry Seaward and @Goody_Ouchless to see if they have any advice.  Thank you again!

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@ChileStyles you said many years ago you lived at the address where the process server left the papers. Did you live there (or receive mail there) at any time during the life of the Credit One account? Did you ever notify Credit One that you were living over seas for part of the year? 

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@Harry Seaward Here is the information regarding the Credit One Account according to my credit report:

Date Opened: 08/16/2013

Date Closed: 12/20/2013

Date Updated: 05/09/2014

As for Midland here are the dates they listed: 

Placed for collection: 04/22/2014

I believe I lived there for less than a month before I first moved overseas in late  2014.  To the best of my knowledge I never received any mail there and never updated my address there with the MVD, but I do actually see the address listed on my credit report in the addresses reported section, but it is not listed as my most recent address.  I guess I must of had some sort of correspondence there but it most definitely was not with credit one nor midland, but I can't say for sure how the address ended up on my credit report.

Do you think I might have grounds for dismissal based on this information for being improperly served or should I go the arbitration route?  Or would it be possible in some way to get the jurisdiction moved from Maricopa County into Pinal County to start the process over again?  From what I read in the link in your signature it doesn't look like I stand much of a chance of winning in a head on battle in court in Arizona.  

 

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@ChileStyles I'm not clear from your response if you lived at the address where they served you when the account was open. But the reality is it doesn't matter that much. Even if you get it dismissed, they will refile in the correct jurisdiction unless you give them a good enough reason not to. 

Enter arbitration. I think the strategy I would follow is this. File a motion to dismiss for improper service. Include as much evidence as you can to support your motion. Midland will have 10 business days to respond and you'll have 5 business days to reply to their response. So it will probably be 3 weeks before the court gives a ruling. If the motion to dismiss is denied, you move ahead with a motion to compel arbitration. If your motion to dismiss is granted, however, I would send a very strongly worded letter to Midland letting them know that if they refile their lawsuit against you, your first order of business will be to file a motion to compel arbitration. Include the agreement you plan to use so they know you actually do have arbitration available as an option.  This may or may not dissuade them from refiling but it's worth a shot in my opinion. 

You asked about the "small claims" exemption. I think a strong argument could be made that since we actually do have a court named "small claims" here, and Midland didn't file their case in "small claims" (they are actually prohibited by the court rules), the small claims exemption doesn't apply.

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@Harry Seaward  Thank you so much for your help, that is great advice.  I truly appreciate it.  I have a couple more questions, first, do I need to file an answer before I file a motion to dismiss for improper service?  Secondly, if the answer is yes, do you know how I can obtain a copy of the served paperwork so I know what I am admitting and/or denying?  Or can I just file a motion to dismiss based on improper without filing an answer?  It seems like if I file an answer it would mean I admit I was served, but if I don't file an answer they could get a default judgement?   

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A Motion to Dismiss is a proper stand-alone response to a lawsuit. You don't need to file an answer. If the MTD is denied, you'll get a notice from the court that you then have 20 days to file your answer.  It's then that you would file your answer and MTC arbitration.

I would make the trip to the courthouse to get the records in person. They can probably send them to you but I wouldn't take that gamble. 

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The other thing I forgot to mention is that a motion to stay proceedings is appropriate for your situation where you will be out of the country for a predetermined period of time. If the MTD is denied or they refile in the correct court, you can file an answer and let the court know you will be in another country until such-and-such date and want to court to stay the proceedings until you return. 

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