Sued by Midland in Arizona - Barclays Card

[Tommylamma 6]

I have a situation with Midland and Barclays very similar to another thread I’ve seen here but I've already answered with something I found elsewhere online. Using the TurboCourt.com form I responded to my summons with the below statement:

• Responding party objects to this request on the ground that it is vague, ambiguous, unintelligible, and lacks adequate supporting documentation. The plaintiff has not proven the debt is valid of Defendant, or the amount of the debt is accurate. Defendant insists that the plaintiff provided the original signed contract agreement, account statements, purchase receipts, and account balances from zero to present balance for said account. Furthermore, Defendant denies every other allegation because request calls for admission of matter Defendant denies and thus it is improper.

Since filing my answer I have received a Disclosure Statement, Motion for Summary Judgment, and several other documents. I’ve attached a redacted copy of all documents, excluding the 50 some odd pages of statements.

I am unsure of what to do next. Can I still respond with arbitration as was advised on the thread I linked above or is it too late for that or not advised at this time? I would like to fight this if possible as I believe this is a fraudulent debt.

 

Please see my answers to the needed questions. Thanks for any assistance.

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.)

- Peter M. Balsino 012049, Brian Stanley 031319, Brandon C. Holub 030533, Daniel W. Hoffman 030890

- Tempe, AZ

 

3. How much are you being sued for?

- $1857

 

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

- Barclays Bank Delaware

 

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

- Served at home

 

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?

- None

 

9. What state and county do you live in?

- Cochise, Arizona

 

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

- 8/25/2014 is what is claimed

 

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

- 6 years

 

12. What is the status of your case? Suit served? Motions filed?

- This is the most current info, not sure what it means with a date in the future?

     - 9/3/2017 CAL: TKL 90 DAYS IMP.DISMISSAL

     - 8/7/2017 CAL: TKL FILE TO SEND TO ADR

     - 7/19/2017 MOTION FILED

 

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

- No, wasn’t aware of it until served

 

14. Did you request debt validation before the suit was filed?

- 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?

- Received response to my answer after being out of town, it’s dated July 14, 2017, but I was out of town until last week, July 26, 2017

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

- Disclosure Statement, Motion for Summary Judgment, and several other documents I’ve attached redacted copy.

Midland_Suit(redacted).pdf

[Harry Seaward 1,356]

You're in trouble with the pending MSJ and you need to get a MTC arbitration in front of the judge ASAP.  At this point, I would expect the court to either deny your MTC, or do nothing with it, and grant Plaintiff's MSJ.  I would also be planning to appeal.  The cost for appeal without waivers is about $500.  (You can petition the court for waivers and deferrals of the fees.)  If you're not up for that, I'd be on the phone with Midland's attorney like now trying to work out a settlement agreement.  

Your MTC should simply ask the court to order the parties into "private contractual arbitration" in accordance with the credit card agreement you attach to the motion.  I would also make a jurat affidavit ("under penalty of perjury...." and then "subscribed and sworn to before me" - the notary is supposed to actually swear you in when signing this type of affidavit) in which you attest by personal knowledge that the agreement is a true and correct copy of the agreement that was in effect during the life of the account.  I would also send a letter to Midland's attorney letting him know you are electing arbitration per the agreement (send him a copy of the agreement with the letter).

Here is the hitch - the minute you file your MTC, there is an automatic and mandatory stay in place.  The problem is none of us know if this stay bars the court from granting a pending MSJ, so if your judge grants Plaintiff's MSJ without first ruling on your MTC, you have the opportunity to be the first one to appeal that ruling.  Common sense says a "stay" means nothing can move forward, but this particular scenario has never been appealed.  At any rate, you need to file an opposition to the MSJ and one of the keystone arguments should be that there is a pending MTC arbitration, and with it a statutory stay of proceedings which precludes the court from granting Plaintiff's MSJ.

On page 11 of the PDF you attached, the affiant claims in paragraph 6(c) that a credit card agreement was provided to you.  I saw you said you left out the 50-ish pages of statements but you didn't mention the agreement.  If they did not attach an agreement (or any of the other things the affiant lists on that page), I would also argue in your opposition to MSJ that their affidavit is defective and untrustworthy on the grounds that it makes false claims.  Also, the affiant does not claim the records were incorporated into Midland's records or that they relied on them in the ordinary course of business so I would argue the records and affidavits are not properly authenticated business records under Evidence Rule 803(6) and are therefore inadmissible hearsay.

Your opposition to MSJ needs to have a "Separate Statement of Facts" wherein you line-by-line attack each claim made in Plaintiff's Statement of Facts.  You will need to refer to specific evidence/documents/testimony in your SOF.

I have attached a sample Barclay's credit card agreement that went into effect on 03-31-2014.  It seems there is only one version of the Barclay's agreement for any given period of activity, so if your account was in fact active on 03-31-2014, then this agreement governed your account.

creditcardagreement_10192.pdf

[Tommylamma 6]

Thank you so much for this Harry, as I've seen in so many of the other threads you are always a huge help.

If I choose to just settlement and be done with this, am I really done with this and is there anything specifically I should ask for other than getting the price as low as possible?

[Goody_Ouchless 506]

Yes - just getting the best deal possible and it will be over. Unfortunately Midland doesn't make "deals". They will probably offer to settle for a lump-sum with a slight discount, or a payment plan for the whole thing. Payment plan is basically just like paying a credit card bill each month.

[Tommylamma 6]

Thanks Goody for the heads up.

This is just so crazy to me how I'm on the hook for a fraudulently created account that I've never even heard of, no signed docs, no "real" proof I opened this account or made purchases with it. 

[BV80 2,794]

6 minutes ago, Tommylamma said:

Thanks Goody for the heads up.

This is just so crazy to me how I'm on the hook for a fraudulently created account that I've never even heard of, no signed docs, no "real" proof I opened this account or made purchases with it. 

You  said they provided credit card statements.  Did those statements show your name and correct address?  Did they show charges and payments?  If they showed payment, were those payments made from your bank account?

[Tommylamma 6]

Yes they did. They showed all of that to my surprise.

I have an idea of who may have used my identity, but this person is already incarcerated and I really have no way of proving it.

[BV80 2,794]

8 minutes ago, Tommylamma said:

Yes they did. They showed all of that to my surprise.

I have an idea of who may have used my identity, but this person is already incarcerated and I really have no way of proving it.

What about payments?  Were they made out of your bank account?

[Tommylamma 6]

Doesn't show account number just bank.

[BV80 2,794]

Just now, Tommylamma said:

Doesn't show account number just bank.

I understand that the statements would not show the bank account number. 

Were payments taken out of your personal bank account?  If they were to subpoena your bank records, would your bank records show payments made to the credit card account?

[Tommylamma 6]

It's been several years, but no I don't think it show in my bank account as I don't have an account with the bank shown on the statement.

[BV80 2,794]

5 minutes ago, Tommylamma said:

It's been several years, but no I don't think it show in my bank account as I don't have an account with the bank shown on the statement.

If you can honestly deny opening the account, making payments, and never having had an account at the bank shown on the statement, you could possibly make those claims in an opposing affidavit. 

For example:

"I did not open a credit card account with  Barclay's Bank Delaware"

"I did not make charges to the credit card account which is the subject of Midland Funding's complaint."

"I have never made payments on a Barclay's Bank Delaware credit card account"

"I did not make the payments shown on the account statements provided by Midland Funding."

"I have never had an account at _____________ Bank."

@Harry Seaward

"

[Goody_Ouchless 506]

If this really is ID Theft Midland tends to drop the matter.

[Tommylamma 6]

I have no problem stating that in an affidavit and do believe this is identity theft.  Would this be done through Midland or the courts?

[Goody_Ouchless 506]

Others may have direct experience, but I believe you file a police report  and attach an affidavit that states the account is not yours and is the result of ID theft. I've also heard that Midland may have a form to sign. If the account is result of ID Theft they must get some tax benefit on the back end.

[Tommylamma 6]

Thank you all so much for all the information. I'm going to review all the statements and make sure this isn't an inside job.  I believe it could've been a family member.  Then a decision has to be made to name them and possibly prosecute them or just pay up. Not fun.

[Tommylamma 6]

I've also talked to someone local that had a similar situation with Midland last year. They answered the initial summons then received similar documents and statements like the ones I received. They decided to settled but about a week later received notice from the court the judge ruled against Midland and their lack of evidence.

Is there anything Midland provided from my attached documents that's out of the ordinary? Something specifically damning, because form my perspective nothing has really been proven form the documents they've provided.

Is it possible this all gets taken care of by the Judge?

What's the risk in waiting?

I assume the obvious risk is no settlement, but it sounds like they aren't really going to work with me anyway. It also sounds like the thinking from Harry is the court will rule in Midland's favor.

Not many fun options, So frustrating!

Thanks again all. 

[Harry Seaward 1,356]

8 hours ago, Tommylamma said:

Is there anything Midland provided from my attached documents that's out of the ordinary? Something specifically damning, because form my perspective nothing has really been proven form the documents they've provided.

The items I mentioned in my first post of this thread are peculiar.  In order to prevail on keeping their evidence out, YOU have to do the work to show the court that their evidence lacks trustworthiness.  Nothing they have shown is a 'magic bullet', but when everything is viewed as a whole, there are enough holes that you may persuade the court to reject their evidence.  But there's always a "but".  In this case, they have filed an MSJ.  I've come to believe that they do this for two reasons.  First is that the court will probably grant it and that's the end of the case.  The second scenario is that you create enough of a doubt as to the evidence that the court denies the MSJ.  The "but" here is that they get another shot with their evidence at trial and your opposition will bring to light everything they need to tidy up in order to win a trial.  So winning an MSJ is far from the end, and it really just hands them everything they need to keep an appellate court from reversing a lower court trial judgment in their favor.

Goody pointed out something that I missed.  They apparently filed the MSJ with the Complaint.  In your opposition to MSJ, I would point out in addition to the other things I mentioned that in filing a MSJ with their Complaint they have precluded you from conducting any sort of discovery whatsoever.  Discovery deadline is 90 days before trial (some 6 months from now) and a response to a MSJ is due within 30 days (+5 for mailing) of when you received the MSJ.   There's no way those two deadlines can cohabitate when a MSJ is filed with an Answer.  Again, I'm not advocating trying to fight this in court.  I'm just giving you things to keep the court from granting their MSJ so that you have a legitimate opportunity to get a ruling on a MTC arbitration.

8 hours ago, Tommylamma said:

Is it possible this all gets taken care of by the Judge?

Anything is possible.  I sure as hell wouldn't gamble a judgment on it though.

8 hours ago, Tommylamma said:

What's the risk in waiting?

Waiting for what?

8 hours ago, Tommylamma said:

I assume the obvious risk is no settlement, but it sounds like they aren't really going to work with me anyway. It also sounds like the thinking from Harry is the court will rule in Midland's favor.

One of the wild cards here is that your're not in Maricopa County.  I don't recall any other cases from Cochise on the message board so I have no idea how judges down there lean.  But again, you have two strong options for putting this case to bed.  You can MTC arbitration or advance an ID theft defense.  Now that I know you believe this account was opened fraudulently, I would get that fact on the record pronto.  Of all of the arguments I've seen made on Justice Court appeals cases, a claim of ID theft is about the surest way to prevent a judgment against you, and even surer way to have reversed on appeal any judgement against you.

[Tommylamma 6]

Thanks again for your time and consideration Harry, it is greatly appreciated. You have made my options very clear.

I've spoken to the family member I was most concerned about and they also have no recollection of this account, and I believe them. At this point I can honestly say I believe this is not my account.

I will contact my local authorities as advised by Goody and proceed from there.

Thanks again for all the help, this is such a great community, doing great work! 

[Tommylamma 6]

I think it's best to not discuss the particulars but I will not be perusing the fraudulent account route.

I did call Midland and had a wonderful conversation with an account manager and her supervisor at a call center in India. They did offer a settlement of around $1500, original being $1857.  Although I've been told that's actually not bad for Midland, I declined.

That means I will be filing  my MTC arbitration ASAP as advised.

My question is can I file the arbitration letter and then file my opposition to the MSJ separately, as the arbitration letter is much faster work and will get it in front of the judge ASAP?

In addition when working on my MSJ opposition do I need to include  the MSJ and discovery issue mentioned in Harry's post below, or was this just if I was trying to fight in court?

On 8/1/2017 at 10:59 PM, Harry Seaward said:

Goody pointed out something that I missed.  They apparently filed the MSJ with the Complaint.  In your opposition to MSJ, I would point out in addition to the other things I mentioned that in filing a MSJ with their Complaint they have precluded you from conducting any sort of discovery whatsoever.  Discovery deadline is 90 days before trial (some 6 months from now) and a response to a MSJ is due within 30 days (+5 for mailing) of when you received the MSJ.   There's no way those two deadlines can cohabitate when a MSJ is filed with an Answer.  Again, I'm not advocating trying to fight this in court.  I'm just giving you things to keep the court from granting their MSJ so that you have a legitimate opportunity to get a ruling on a MTC arbitration.

 

[Harry Seaward 1,356]

5 hours ago, Tommylamma said:

My question is can I file the arbitration letter and then file my opposition to the MSJ separately, as the arbitration letter is much faster work and will get it in front of the judge ASAP?

The Opposition to MSJ and MTC are two separate filings.  I would first send a letter to Midland's attorney letting him know you elect arbitration to settle their claims against you.  Then I would file the MSJ with card agreement and affidavit attached.  And finally, file your Opposition to MSJ.

Your MTC (and any other motion you file) has to include the "10 day" language from Rule 128(c).

5 hours ago, Tommylamma said:

In addition when working on my MSJ opposition do I need to include  the MSJ and discovery issue mentioned in Harry's post below, or was this just if I was trying to fight in court?

Your opposition needs to include all of the issues I talked about.  You need to do everything you can to keep the judge from rubber-stamping it in Midland's favor.  Of course, no matter what issues you raise in your Opposition, it's still possible to judge will rule in Midland's favor anyway.  At that point you'll have to either appeal or accept and deal with the judgement against you.

[Tommylamma 6]

Thanks for the clarification Harry. I started the arbitration letters based on other threads I found. Will these suffice?

[Tommylamma 6]

I tried to edit the previous post but didn't see the second letter, could be a delay. Here is the letter for the lawyer. 

[Tommylamma 6]

I just went with basic business letter format for letter to lawyer with information in previous post.  Sending that letter to lawyer today.

I will finish the MTC  and Opposition to MSJ over the weekend. I'll post when done. Any input would be greatly appreciated.

[Tommylamma 6]

I elected to hold off sending the letter to the lawyer until Monday hoping for input before sending.

I'm also confused as I've seen a few different ways of writing the MTCs on the forums and then the format of Midland's documents is different still.

I assume as long as everything is included that is required it will be accepted or should I reformat?

I've attached a copy of my MTC draft. I believe I have incorporated all advised information

• Language from credit card agreement supplied by Plaintiff 
•  "10 day" language from Rule 128(c).
• Affidavit (which I assume means I need to get this notarized)
• Do I need to send the Credit Card agreement with MTC since the Plaintiff is the one that sent it to me and the court?

The agreement they sent is crazy small but I compared the arbitration section to the 2014 one you sent Harry, and it looked as if they were the same word for word and even if not the sections I quoted are the same. I attached the one they sent for information purposes, but it's very hard to read.

Thanks in advance!  

 

MTC.pdf

Card_agreement(from_midland).pdf