Midland Funding LLC is Suing me in Texas

[pockets66]

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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.)Scott & Associates

3. How much are you being sued for? 2 thousand  – amt different on BOS and CR

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

5. How do you know you are being sued? (You were served, right?)  Looked it up on jop website

6. How were you served? (Mail, In person, Notice on door) Not served yet

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, I saw it on my credit report

9. What state and county do you live in?  Texas, Galveston County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 6/2016

11. What is the SOL on the debt? To find out: 4 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).  Not served.  When I saw it on the CR I sent a certified letter requesting validation – I also filed a CFPB complaint. 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes, with the CB on collection agency

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

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?  I will attach what I received – minus the statements

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.  Scott & Associates responded via mail with a huge packet.   Turns out all the items sent were 4 duplicates of everything.  Included:   DFS card agreement from 2013 (acct opened 2011) Letter from dell about sale to Midland funding. Letter from Midland Credit 8/2016 pre-legal. Closing statement, BOS, exhibit a-1 to BOS, BOS from CIT to WB, affidavit of sale accts by OC, BOS from WB to DFS, Affidavit of sale of accts by reselling creditor DFS, Sch 1 to BOS , Affidavit of Sale by original creditor WB, Letter from Scott&Assoc stating they verified I am person who is the debitor in the WB acct – OC, statements for 2015 – feb-dec and 2016 Jan-Feb, 12 page customer acct info order and payments from 2011-2014

 

WebBank DFS Agreement 2013.pdf

CIT_DELL_WEBBANK_DOCUMENTS_RECEIVED.pdf

DELL_CREDIT_CARD_AGREEMENT.pdf

[nobk4me]

I always recommend arbitration if there is an arbitration clause in the card member agreement.

[pockets66]

2 minutes ago, nobk4me said:

I always recommend arbitration if there is an arbitration clause in the card member agreement.

Hello,  yes they included the agreement from 2013 which does have an arbitration clause.  Am I supposed to use the clause from when the alleged account was opened?  Thank you for your help!

[nobk4me]

Well, if they included an agreement with an arb clause, which they are claiming is the applicable agreement, and if it is favorable to you, then use it.   That gives you a stronger position.  What can they say, the agreement they included in the pleading was wrong?

[pockets66]

39 minutes ago, nobk4me said:

Well, if they included an agreement with an arb clause, which they are claiming is the applicable agreement, and if it is favorable to you, then use it.   That gives you a stronger position.  What can they say, the agreement they included in the pleading was wrong?

nobk4me thanks!  I need to read up on arb because I know nothing about it.   So arb works for both JDB and OC?  Appreciate your help!

[pockets66]

53 minutes ago, nobk4me said:

Well, if they included an agreement with an arb clause, which they are claiming is the applicable agreement, and if it is favorable to you, then use it.   That gives you a stronger position.  What can they say, the agreement they included in the pleading was wrong?

nobk4me, I starting looking this up and came across this https://library.nclc.org/new-developments-limit-arbitration-fdcpa-other-claims-against-debt-buyers-and-collectors

What exactly does that mean?  If my credit card agreement states I can ask for arb and Midland is using information from the OC to prove I owe the alleged debt -  then they would have to agree to arb even though AAA won't pay for Midland?

[debtzapper]

@pockets66  Forget what you read in your link above.  It does not apply to you.  From what I saw your card agreement provides for arbitration with  AAA or JAMS.   I think @fisthardcheese would say use AAA because AAA won't arbitrate with Midland.    However, we recently had a TX member named @PAGRN who got her case dismissed by requesting arbitration with JAMS, which is more expensive than AAA for Midland.  The whole purpose of arbitration is that if a debt collector has to arbitrate your claim rather than sue you in court, it becomes too expensive for them and they will dismiss the case  .  Per your agreement, they must pay all arbitration fees.

Start out  by doing this

Type this in the same format as the Plaintiff's Original Petition of which you were served:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement.

File it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit.  

[pockets66]

1 minute ago, debtzapper said:

@pockets66  Forget what you read in your link above.  It does not apply to you.  From what I saw your card agreement provides for arbitration with  AAA or JAMS.   I think @fisthardcheese would say use AAA because AAA won't arbitrate with Midland.    However, we recently had a TX member named @PAGRN who got her case dismissed by requesting arbitration with JAMS, which is more expensive than AAA for Midland.  The whole purpose of arbitration is that if a debt collector has to arbitrate your claim rather than sue you in court, it becomes too expensive for them and they will dismiss the case  .  Per your agreement, they must pay all arbitration fees.

Start out  by doing this

Type this in the same format as the Plaintiff's Original Petition of which you were served:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement.

File it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit.  

Whew!  Thanks deptzapper!  Do I wait until I am served?  I haven't been served yet but I am sure it is just a matter of days.  They filed the claim a few months back but didn't file the citation to serve until recently.  The civil case didn't show up on the JOP website until the citation to serve. 

[Clydesmom]

1 hour ago, pockets66 said:

 Do I wait until I am served?  I haven't been served yet but I am sure it is just a matter of days.

Yes, wait until you are served.  You have a couple weeks to file the answer after you are served.

1 hour ago, pockets66 said:

They filed the claim a few months back but didn't file the citation to serve until recently.  The civil case didn't show up on the JOP website until the citation to serve. 

Some courts are more backed up than others but you are not required to act until you are officially served.

[pockets66]

2 minutes ago, Clydesmom said:

Yes, wait until you are served.  You have a couple weeks to file the answer after you are served.

Some courts are more backed up than others but you are not required to act until you are officially served.

Thanks Clydesmom!  Does the same go for arbitration?  I was reading an earlier post and the comment: "filing before they sue"  

 From fisthardcheese - 

"If this were me, I would file in JAMS right now.  The GE contracts say they will pay all arb fees, so it will cost you nothing. I would send the demand form, a copy of the card agreement and a copy of the letter I am sending to Midland's attorney asking them to pay the filing fee to JAMS per the card agreement.  I send copies of everything to the Midland attorney as well by CMRRR.   www.jamsadr.com has all the forms, rules and instructions for filing.

This will be in your favor by filing before they sue. "

[Clydesmom]

5 hours ago, pockets66 said:

 I was reading an earlier post and the comment: "filing before they sue"  

Except they HAVE sued.  You just haven't been served yet.  

[fisthardcheese]

You mention that the amount being reported on your credit report is different than they are suing you for.  Because of this, I would send a dispute for the Midland TL to all 3 CRAs stating the balance is incorrect.  I would expect all CRAs to respond verifying that same balance.  When they do this, you have a FCRA violation to add to your future arbitration claim.

15 hours ago, debtzapper said:

  I think @fisthardcheese would say use AAA because AAA won't arbitrate with Midland.

Midland will refuse to arbitrate either way, but I would take other factors into consideration.  For instance, does the card agreement state they will pay all arb filing fees?  If you will have to pay the full filing fee, AAA is cheaper by $50.  Also AAA makes filing much easier and quicker as you can file by email.  However, JAMS is always preferred if you have the time and the full $250 available (or if it's reduced or free according to the contract).

If this were me, I would work on filing the arbitration now.  I would work up a demand for arbitration based on FCRA violations and asking for somewhere in the neighborhood of $3k - $5k in damages.  I would not mention their lawsuit or debt claims in my arb filings.  Arbitration should be thought of as you are suing them for their violations of consumer law, only you are taking it to arbitration instead of court.  It will be up to THEM to file a counter claim for their issues once the arbitration is started. 

You can file the arbitration case before you are served, however, you will still be required to answer the lawsuit and file an MTC in court once you are served.  In your case, they already sued you, so there is no advantage to filing in arbitration first, as you will still need to file the MTC in court.  But if the contract says they pay your filing fee and it will cost you nothing to file, I might go ahead and file anyway while waiting to be served.  This could just help get a jump start on all the paper work and allow you to have copies of everything prior to the MTC so you can show the court you already have the arbitration ball rolling.

[pockets66]

1 hour ago, fisthardcheese said:

You mention that the amount being reported on your credit report is different than they are suing you for.  Because of this, I would send a dispute for the Midland TL to all 3 CRAs stating the balance is incorrect.  I would expect all CRAs to respond verifying that same balance.  When they do this, you have a FCRA violation to add to your future arbitration claim.

Midland will refuse to arbitrate either way, but I would take other factors into consideration.  For instance, does the card agreement state they will pay all arb filing fees?  If you will have to pay the full filing fee, AAA is cheaper by $50.  Also AAA makes filing much easier and quicker as you can file by email.  However, JAMS is always preferred if you have the time and the full $250 available (or if it's reduced or free according to the contract).

If this were me, I would work on filing the arbitration now.  I would work up a demand for arbitration based on FCRA violations and asking for somewhere in the neighborhood of $3k - $5k in damages.  I would not mention their lawsuit or debt claims in my arb filings.  Arbitration should be thought of as you are suing them for their violations of consumer law, only you are taking it to arbitration instead of court.  It will be up to THEM to file a counter claim for their issues once the arbitration is started. 

You can file the arbitration case before you are served, however, you will still be required to answer the lawsuit and file an MTC in court once you are served.  In your case, they already sued you, so there is no advantage to filing in arbitration first, as you will still need to file the MTC in court.  But if the contract says they pay your filing fee and it will cost you nothing to file, I might go ahead and file anyway while waiting to be served.  This could just help get a jump start on all the paper work and allow you to have copies of everything prior to the MTC so you can show the court you already have the arbitration ball rolling.

fisthardcheese, thank you!  I attached the credit card agreement from dell's website and they state:

"In any arbitration, we will pay the entire amount of the arbitration fees, including any required deposit. Each party shall be initially responsible for payment of their own attorney fees, witness fees and similar expenses."  They offer AAA and JAMS.

I looked at the agreement they sent when I requested validation and it also states they will pay everything.

 

 

 

[pockets66]

17 hours ago, debtzapper said:

@pockets66  Forget what you read in your link above.  It does not apply to you.  From what I saw your card agreement provides for arbitration with  AAA or JAMS.   I think @fisthardcheese would say use AAA because AAA won't arbitrate with Midland.    However, we recently had a TX member named @PAGRN who got her case dismissed by requesting arbitration with JAMS, which is more expensive than AAA for Midland.  The whole purpose of arbitration is that if a debt collector has to arbitrate your claim rather than sue you in court, it becomes too expensive for them and they will dismiss the case  .  Per your agreement, they must pay all arbitration fees.

Start out  by doing this

Type this in the same format as the Plaintiff's Original Petition of which you were served:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement.

File it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit.  

When I file for arbitration "as shown above" what are the steps to take and do I send this to the JOP also?

Are the steps different because I haven't been served yet?

Thanks you again for taking the time to respond!  I am feeling a little overwhelmed!  I actually have 3 civil cases filed (dh-cach llc - court date in June) 2  not served.  Me - Midland Funding - DH - Barclay - both have the same attorney.  I looked up the CCA on Barclay and they also offer arbitration.   Which CCA do you go by?  The date you opened the account or the date it was charged off?  

[pockets66]

10 hours ago, Clydesmom said:

Except they HAVE sued.  You just haven't been served yet.  

Right!  I had it in my mind that until I was served...Thanks for pointing that out!

[fisthardcheese]

49 minutes ago, pockets66 said:

Which CCA do you go by?  The date you opened the account or the date it was charged off?

Date of charge off is best.

www.jamsadr.com has all the information about JAMS.  Read the rules including the supplemental consumer rules.  Find the "demand for consumer arbitration" form.  This is what you need to file a case and it has the instructions on the form.

[pockets66]

2 hours ago, fisthardcheese said:

If this were me, I would work on filing the arbitration now.  I would work up a demand for arbitration based on FCRA violations and asking for somewhere in the neighborhood of $3k - $5k in damages.  I would not mention their lawsuit or debt claims in my arb filings.  Arbitration should be thought of as you are suing them for their violations of consumer law, only you are taking it to arbitration instead of court.  It will be up to THEM to file a counter claim for their issues once the arbitration is started. 

If I file arbitration before I am served I can't use that first sentence:  

 

48 minutes ago, pockets66 said:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

What does it mean to file in the same format?

 

Thanks again!

[pockets66]

8 minutes ago, fisthardcheese said:

Date of charge off is best.

www.jamsadr.com has all the information about JAMS.  Read the rules including the supplemental consumer rules.  Find the "demand for consumer arbitration" form.  This is what you need to file a case and it has the instructions on the form.

Thank you!  I will go look right now.

[pockets66]

6 minutes ago, pockets66 said:

Date of charge off is best.

Good.  Looks like the arbitration rules are the same from 2013 - to 2016 - when the alleged account was charged off. : )

[pockets66]

28 minutes ago, pockets66 said:

If this were me, I would work on filing the arbitration now.  I would work up a demand for arbitration based on FCRA violations and asking for somewhere in the neighborhood of $3k - $5k in damages.  I would not mention their lawsuit or debt claims in my arb filings.  Arbitration should be thought of as you are suing them for their violations of consumer law, only you are taking it to arbitration instead of court.  It will be up to THEM to file a counter claim for their issues once the arbitration is started. 

fisthardcheese, I am at the part "nature of dispute"  is their a certain format I am supposed to use?  Down at the bottom "amount in controversy" is this the amount they are suing me for?

Thank you!!!

[fisthardcheese]

1 hour ago, pockets66 said:

fisthardcheese, I am at the part "nature of dispute"  is their a certain format I am supposed to use?  Down at the bottom "amount in controversy" is this the amount they are suing me for?

Thank you!!!

You did not read what I typed and you quoted in your own reply.

5 hours ago, fisthardcheese said:

If this were me, I would work on filing the arbitration now.  I would work up a demand for arbitration based on FCRA violations and asking for somewhere in the neighborhood of $3k - $5k in damages.  I would not mention their lawsuit or debt claims in my arb filings.  Arbitration should be thought of as you are suing them for their violations of consumer law, only you are taking it to arbitration instead of court.  It will be up to THEM to file a counter claim for their issues once the arbitration is started. 

 

[pockets66]

58 minutes ago, fisthardcheese said:

You did not read what I typed and you quoted in your own reply.

 

Fisthardcheese, please overlook that....I wasn't sure if "damages" was the same as "nature of controversy".   I appreciate you pointing that out.  I just want to make sure I do everything right.  As suggested I read PAGRN post but in her situation she was served then asked for arbitration.  So forgive me if you answered this before - I'm a flowchart kind of person 

Do I mail CMRRR "election for arbitration"  to the plaintiff and attorney and file JAMS - or do I just to the JAMS and follow those procedures?  Thank you so much for taking time on a Sunday to answer my questions!

[debtzapper]

3 hours ago, pockets66 said:

If I file arbitration before I am served I can't use that first sentence:  

 

What does it mean to file in the same format?

 

Thanks again!

Well, I thought you had been already served, and that is how the other OP (PAGRN) answered the complaint.  But I believe @fisthardcheese wants to initiate arbitration before you are served.

[pockets66]

Just now, debtzapper said:

Well, I thought you had been already served, and that is how the other OP (PAGRN) answered the complaint.  But I believe @fisthardcheese wants to initiate arbitration before you are served.

deatzapper, no problem!  At least I know what to do if I get served before I can do JAMS! : 0   Thank you for your help!

[debtzapper]

1 minute ago, pockets66 said:

deatzapper, no problem!  At least I know what to do if I get served before I can do JAMS! : 0   Thank you for your help!

Pay very careful attention to what fisthardcheese advises you.   He can advise, but you have to read, study and do the work.  This is your case.  You've got to be in your "battlemode."  You want to be calm and focused, but stay on top of everything.  Make winning this case the most important thing in your life.