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Being sued by Midland in Wa, need to answer. please help

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I was served a summons & complaint about a week and a half ago.. Ive been trying to draft an answer, but Im not sure how to even start.   There are multiple allegations in each paragraph and I want to make sure I address each one correctly.  I really wish I could just hire an attorney, but I cant afford one.  The last thing I want is a default judgement so any help will be GREATLY appreciated.

 

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.)

Gordon, aylworth, & Tami

3. How much are you being sued for?

$6,000.

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

Citibank, N.A/Sears

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

Yes

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

Was served in person 

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

Yes

What was your correspondence (if any) with the people suing you before you think you were being sued?

Never spoke with them

9. What state and county do you live in?

Washington, snohomish  county

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

Not sure, but within the last 2 years 

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

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).

Served with S & C

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?  

I have 10 days left to respond

16. What evidence did they send with the summons? 

A copy of Midland's active

'Out of state collection agency' -business licence

 

COMPLAINT:

In the District court of the State of Washington for snohomish county everett devision 

 

Midland Funding llc

Vs.                               Plaintiff

My name

                                  Defendant

 

Plaintiff alleges  Breach of contract

          1. Plaintiff is a limited liability company, which for good and valuable consideration purchased defendant's Citibank, N.A./Sears credit card account and contract and all the associated rights thereunder.

2.  Plaintiff has satisfied the bonding requirements and is duly licensed collection agency pursuant to RCW chapter 19. 16 . A true copy of said license is attached hereto.

3. Defendant, an individual residing in Snohomish County Washington, entered into a contract with Citibank,N.A./Sears for a credit card. The credit card was issued to defendant under the account number ******1234.

4.citibank,N.A. /Sears supplied the credit card to Defendant subject to an agreement to repay all amounts charged to the account plus associated cost and fees.

5.defendant thereafter used the credit card and became indebted to Citibank, N.A/Sears.

6. Citibank, N.A./Sears performed its obligations under the terms of the contract.

7.  Defendant breached the contract by failing to make payment(s) as agreed.  As a result,  defendant's  credit card account was charged off for delinquency on  ** 2016.

8.   As a result of Defendant's breach, defending is indebted to Plaintiff in the sum of $6000.  Plaintiff is also entitled to actual costs and disbursements.

WHEREFORE, Plaintiff prays for judgment against defendant as follows:

1.The sum of $6000

2. Plaintiff's  costs and disbursements incurred herein.

Dated this day of 

 

                           Gordon,aylworth & Tami,pc

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Bump

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Would it work if I answered each allegation with: " I lack the knowledge or information to admit or deny plaintiffs allegation"?   Except for paragraph 3, where I would admit in part..

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Have you gotten an answer yet? I'm in a similar boat here in  Kitsap County Civil WA State. I'd like to know what you did and how it turned out- I cant tell if this is recent this year or old (sorry)-  Heck you're way ahead of me- I cant even figure out how to start a thread. I'll be watching this one and hoping you get answers that will help you- maybe I'll get lucky and be able to apply them too. 

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I havent really gotten an aswer from any one yet.. But I've been researching as much as I can and my answer is almost finished.  How similar is your case?      I'm not sure how much I can help but Im more than happy to share any info/answers with you, i just need some information about your case.

  In the same spot where you found this thread, you'll find another thread called "questions to answer" or something like that.. if you can answer the questions the  same way I did, I can definately  do my best to  try & help you :)

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For the basics on answering, go to Washington law help (dot) org and read the how to answer a debt lawsuit topic.

I have been on this board for long time--much more infrequently since I went SOL and closed out my lawsuits.  I know people come here for hope, or advice, or whatever, but I have to be blunt:  If you don't answer, they'll get a default judgment.  But if you do answer, what is your plan?  Are you hoping they'll go away?  They probably won't.  Are you going to be able to learn enough, fast enough to be able to self-lawyer?  What, if any, defenses do you have?

Midland knows how this done.  They know exactly what they need to get a motion for summary judgment and there's about a 99% chance they'll win if you can't mount some viable defense or strategy to win.  What difference does it make if you're hit with a default judgment next week or an MSJ in a month or two (and you'll be hit with those extra costs, to boot)?

My basic defense was always standing.  But, under WA law, they have a presumption of validity on the assignment and it's not easy to overcome that.  It takes some honest-to-god lawyering, and you have to know court rules and how to keep evidence out (and these are complicated motions to write).  Realistically, it's a very, very tough assignment for pro se if Midland (or anyone) pursues you with basic evidence in hand. 

Based on the information you provided, you may want to look at the arbitration strategy.  I personally don't like it much and I've seen it backfire on people, but it's also worked well for some people.  I can't really provide any advice as I always preferred to stay in court.

Make sure you get your Notice of Appearance in on time.  Good luck.

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So if it is not small claims court, citibank sears has an arbitration clause. in your answer deny all allegations, you can put true to things like your name addy, but everything else you can deny. for a reason you can put there is insufficient information for defendant to admit or deny, therefore denied.  Don't give them Anything else.  Then in your Affirmative defenses number 1 should be  1. The alleged account carries an arbitration agreement according to the contract. Defendant demands arbitration with private arbitration such as JAMS.

2. Plaintiff lacks standing.

Then same day or a day or 2 after, file a motion to compel private contractual arbitration.  You can find a copy of the Citibank Sears credit agreement at the CC database https://www.consumerfinance.gov/credit-cards/agreements/  Print it out and attach it to your motion.  

You can search here in infocenter forum for a sample of the motion. Just use key words such as motion to compel private contractual arbitration.  You will need to  change some things in it to match your credit agreement exactly.  If the judge grants your motion, midland will most likely go away, ask you for a mutual dismissal.

Study and then come back with questions.

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6 hours ago, MisterLoon said:

For the basics on answering, go to Washington law help (dot) org and read the how to answer a debt lawsuit topic.

I have been on this board for long time--much more infrequently since I went SOL and closed out my lawsuits.  I know people come here for hope, or advice, or whatever, but I have to be blunt:  If you don't answer, they'll get a default judgment.  But if you do answer, what is your plan?  Are you hoping they'll go away?  They probably won't.  Are you going to be able to learn enough, fast enough to be able to self-lawyer?  What, if any, defenses do you have?

Midland knows how this done.  They know exactly what they need to get a motion for summary judgment and there's about a 99% chance they'll win if you can't mount some viable defense or strategy to win.  What difference does it make if you're hit with a default judgment next week or an MSJ in a month or two (and you'll be hit with those extra costs, to boot)?

My basic defense was always standing.  But, under WA law, they have a presumption of validity on the assignment and it's not easy to overcome that.  It takes some honest-to-god lawyering, and you have to know court rules and how to keep evidence out (and these are complicated motions to write).  Realistically, it's a very, very tough assignment for pro se if Midland (or anyone) pursues you with basic evidence in hand. 

Based on the information you provided, you may want to look at the arbitration strategy.  I personally don't like it much and I've seen it backfire on people, but it's also worked well for some people.  I can't really provide any advice as I always preferred to stay in court.

Make sure you get your Notice of Appearance in on time.  Good luck.

Thanks so much for your response.  I have since responded with a notice to appearance via certified mail.  I'm glad you mentioned this because I wasn't exactly sure if that would help my situation.  I should be done with my answer within the next day or 2.. it's my understanding that I more case law  that I include, the better.. . But I'm not sure which affirmative defenses apply.   As for arbitration.. Im worried its a little too risky and I havent done much research on it.  Thanks again for your response.

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5 minutes ago, shellieh98 said:

So if it is not small claims court, citibank sears has an arbitration clause. in your answer deny all allegations, you can put true to things like your name addy, but everything else you can deny. for a reason you can put there is insufficient information for defendant to admit or deny, therefore denied.  Don't give them Anything else.  Then in your Affirmative defenses number 1 should be  1. The alleged account carries an arbitration agreement according to the contract. Defendant demands arbitration with private arbitration such as JAMS.

2. Plaintiff lacks standing.

Then same day or a day or 2 after, file a motion to compel private contractual arbitration.  You can find a copy of the Citibank Sears credit agreement at the CC database https://www.consumerfinance.gov/credit-cards/agreements/  Print it out and attach it to your motion.  

You can search here in infocenter forum for a sample of the motion. Just use key words such as motion to compel private contractual arbitration.  You will need to  change some things in it to match your credit agreement exactly.  If the judge grants your motion, midland will most likely go away, ask you for a mutual dismissal.

Study and then come back with questions.

I've been wondering about arbitration.. I'll start researching today.  Thanks so much for taking the time to respond.  Just wondering .. which state are you from? 

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colorado

WA may have mandatory arbitration, and you do NOT want that, it is a court arbitration, and you will lose. you want to get this out of the WA court. The plantiff will oppose a motin to compel private arbitration, and state WA has an arbitration process. you will need to respond to that asserting your rights with the credit agreement and request JAMS or AAA. Midland will not go, but they will fight to keep it in court.

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I'm in Washington.  All my experience was in Superior court.

Let's talk about the Notice of Appearance for a minute.  When you "appear", no action can be taken by the court without you being notified.  Once notified, you can figure out how to respond.  The first time I was sued--this is seven years ago now--I just put in my Notice of Appearance.  Several months later, I was notified they moved for a default judgment--that's when I finally answered, effectively killing the motion for default judgment.  (They, of course, just file a motion for summary judgment--and the fight was on.)

In retrospect, I should probably have moved for dismissal right away because they didn't have the documentation and may not have been able to get it on time.  At that time, everything was a mess and the court was overwhelmed.  Times are different now--the banks and the players like Midland were put under a lot of scrutiny.  Now they're just flat better prepared than in the past.  Also, precedential cases have ironed out a lot of the confusion surrounding how to prosecute and defend.  The older information on this board may have been great then, and will get you a judgment in no time now.

shellieh98 is right.  You'll need to review the WA arb act, I think it's RCW 7.04 or something like that.  You don't want court arb, you want private contractual arb.  Make sure you read and understand exactly what the terms and conditions contain--as I understand the strategy, it's about driving costs that they have to bear--but that depends on what the t&cs. 

One of the things that I've thought about is this:  Washington has an Unfair Business Practices Act that is broad.  Several violations of the WA Debt Collection Practices Act are considered de facto violations.  If I had ever wanted to go arb, I thought it would be possible to hit back hard on any opposition to arb from them as a violation of the Unfair Business Practices Act.  That would open a world of possibilities--and maybe wallets.  That's also why I suggested to another poster last night--that had already notified that they wanted arb--that they check with an attorney.  They may already have a case.

My fundamental problem (among more than one) with arb is this:  If you go that route, you, in my opinion, give them standing.  Some on this board have disagreed with my interpretation.  I've also seen cases where it went to arb, then back to court where the costs were imposed on the defendant that pushed for arb.  T&Cs are everything.  Good luck.

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On 9/13/2017 at 12:43 AM, MisterLoon said:

My basic defense was always standing.  But, under WA law, they have a presumption of validity on the assignment and it's not easy to overcome that...

RCW 19.16.270 Presumption of validity of assignment.

In any action brought by licensee to collect the claim of his, her, or its customer, the assignment of the claim to licensee by his, her, or its customer shall be conclusively presumed valid, if the assignment is filed in court with the complaint, unless objection is made thereto by the debtor in a written answer or in writing five days or more prior to trial.
 
In other words, if one simply objects that JDB has a valid assignment, isn't it sufficient to void the assumption? The law doesn't go into specifics as to how the objection should be made. 

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Yes, any objection based on the validity of the assignment does the trick.  As I previously posted, I always just answered with (1) Plaintiff is not the real party in interest  and (2) failure to state a claim for which relief can be granted.  (Others have done it differently but as long as the court understands you're objecting to the validity of the assignment (ie. their standing before the court.)

The difference is this:  With the assumption, the JDB can just say:  "We bought the debt."  Without the assumption, at the very least the JDB will have to get the original creditor to say:  "We sold the debt to the JDB."  In the immediate post-financial crisis world, this tended to work well for a lot of people because debts were sold multiple times and the chain was hard to put back together, and a lot of original creditors were washing their hands of the debts when they sold them--they simply wanted nothing to do with it once they sold, so JDB's couldn't get the banks to support their claims.  Since that time, the OCC has put new restrictions on national banks so that debts can only be sold once and the banks are required to provide the support to collect the claims.  In view of those changes, JDB's are having more success collecting and the challenge to standing can just come back to haunt you because if you lose, those costs are tacked onto the judgment and you get to pay them.  That's not to say it might not work, but the odds are longer and you have to balance those odds against running up a few hundred in additional costs on a judgment.

And there are other problems--for instance, I hired a skilled trial lawyer to write the Motions to Strike because I simply couldn't master the evidentiary rules fast enough to do it myself.  (As an aside to WA residents--you can hire a lawyer for limited help without retaining them for full representation.  For me, it was money well spent and I think it amused the lawyer.  You may even be able to find some pro bono help.)  The point is:  Even if you challenge their standing, you still have to knock out any evidence they try to introduce.  The end result you're looking for is to leave them with no standing, no evidence, and no way to introduce either.  (That's also why OC's are such a bear to try and beat--they have standing and little or no problem introducing evidence.)

As time has gone on, more people are showing up here in circumstances that are going to be tough to overcome.  Sometimes they could be overcome by a skilled lawyer, or maybe even by someone with more experience, but it is really, really difficult to learn enough quickly enough to overcome a properly documented lawsuit.

If I were sued now as opposed to a few years back--and depending on the circumstances--I would probably go a different route.  For instance, I never cared for the "take 'em to arb" strategy but I would have to say that in the present day environment, it looks more attractive than the alternatives.  Also, I think it could be refined to Washington law.  For example, if I were sued today and couldn't make the situation any worse, I might--just thinking out loud and I'm not a lawyer--I might just answer with a copy of the agreement and a motion to dismiss for lack of subject matter jurisdiction under court rule (whatever--don't know the number off the top of my head.).  Maybe have a motion to compel arb as back up, but swing for the fences.  Who knows?  I do know that some of the stuff that worked well in the past ain't working so hot now.

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7 hours ago, MisterLoon said:

I do know that some of the stuff that worked well in the past ain't working so hot now.

The following is certainly quite new:

A debt collector seeking to enforce a written credit card agreement must prove the debtor's assent to the material terms of the agreement...

from Unifund CCR, LLC v. Amy Elyse, 382 P.3d 1090, 195 Wn. App. 110 (WA Ct. App. Div. 1 2016)

For us mortals: https://www.courts.wa.gov/opinions/pdf/735101.pdf 

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As for the Answer... send me a pm, I will provide a reference to a couple of cases in King County District Court. I wish I had them before I went this path. Ah, a word of advice, don't use the "graded sworn denial" in WA courts hehe

Also, a few very important questions for those in community property states like WA:
- are you married?
- did you incur your debts prior to marriage, if married?
- do you have any assets/property separate from your community property, if married? Your wages are community property, too, and are seemed to be exempt from collection on debts incurred prior to marriage.

By the way, our esteemed member of this forum, Harry Seaward, managed to escape the liability because of his debt structure, as far as I recall. That would have been my plan, too, had I lost.

 

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I suspect the OP has already answered based on the dates of the posts.  We may have revived an old thread.

I wasn't familiar with the Unifund v. Elyse case, but there really isn't anything new there--it's the same stuff  applied to a specific situation.  There are a couple of interesting things to note though.  First, this wasn't a pro se effort--they had a lot of legal help, at least on appeal.  Second, the appellate court neatly sidestepped any questions regarding Unifund introducing evidence.  Third--and this barely scratches the surface--don't assume SOL is 6 years.  In this case, if the defendant had played their hand correctly, they probably could have gotten it tossed right out of the gate as past the SOL--if argued correctly.  Fourth, if there was any case that cried out for a properly constructed and argued lack of standing defense, this was it.

The most valuable learning experience I had was to go over cases at the court house, both my county and other counties, and find what worked.  Then study the precedential cases in the appellate system.  It was always eye-opening how many cases that were answered/contested still lost because people would argue the wrong things while they didn't see--and therefore didn't argue--substantive defenses and defects that would probably get the case dismissed.  The court generally will only rule based on what's argued.

The court's reasoning in this Unifund v. Elyse was consistent with Washington precedents.

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@sasha0378 @MisterLoon Thank you guys so much for your insights.. I hate to admit this.. but so far I've only filed a notice of appearance with the courts.  I havent answered yet.. I've been  doing a ton of research everyday. I guess i just want to make sure I dont approach this the wrong way. Im not sure I want to go the arb route. It seems like too many things can go wrong..  Ive been checking the wa state court cases website to make sure I don't have a court date.. I've also been checking the attorneys bar # to make sure my name doesnt show up under his court dates aswell. I havent received anything from the courts so far.. but I do get phone calls from the attorney periodically.

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I would seriously consider arb.  At the very least, you should get a copy of the agreement and post what it says so that we have some reasonable basis to consider pros and cons.  This may sound like a dumb thing to say given the nature of this board, but Midland is my favorite JDB.  They tend to be a tough fight, but fair and practical.  I'm not familiar with the law firm they're using, but another guy on this board two or three years back took them to arb and they dropped it.  Something to consider.

I get seriously discouraged providing my experiences--there are things I simply can't say or do for people because I'm not a lawyer and I don't practice law for anyone except myself.  My last case was very stressful for me--I spent the whole time in over my head, so to speak, and I spent day and night trying to keep up and cover my butt.  And I never say I won because I didn't.  They quit and that's the truth.  By the time we were done with the multiple MSJ and MTD attempts, it was obvious that there was not only going to be a trial but it was going to be messy.  If it had gone to trial, I honestly have to admit I'd have probably lost.

That said, I don't see that you have anything to work with but standing.  Standing works but it's not like you can just go say, "Hey, they don't have standing" and expect the judge to nod and agree with you.  Essentially, here's how my experience went:  I answered, they moved for MSJ.  Immediately, I moved to strike any evidence they tried to introduce.  (Again, I had an experienced attorney guide me on this.)  At the same time, I attacked their standing.  They tried to introduce (as they did in all my cases) an affidavit and eventually a spreadsheet/bill of sale/forward flow--whatever you want to call it.  This is where the motion to strike had to be combined with precedents because, properly argued by the precedents, WA law requires the assignment to be in writing.   If it's not in writing, they have to bring in an authorized from the bank to testify in trial.  The bill of sale is not an assignment in writing.  My concern is that it's a doable but not easy process and, in effect, mimics the arb strategy in driving up costs BUT--and this is the big difference--they can plow ahead if they choose and stick the costs in the judgment if you lose.  Consumer arb precludes that as I understand it.

I notice in the complaint that they refer to an "agreement" but not a written agreement.  They're intentionally trying to avoid the written agreement and I don't know why--it has no effect on SOL so I suspect they're trying to avoid the arb provision.  That's another reason to consider it.

Go to Google scholar, click WA courts, and read cases:  Search under Discover, Citibank, MRC receivables, Sunde, Zion, Ray, Bridges, the case posted above--you should pick up pretty quickly exactly what they need to provide and by implication how to counter it.

BTW, the lawyers are no doubt trying to figure out what you're up to.  Most people don't answer, easy default.  A few people answer, usually in a poor or irrelevant manner ie. "Lost my job", but you've done something unpredictable and unusual.  Now they're a little off-balance and truly have no idea what you're up to (although I should warn that "they" monitor this board).

I'll try to keep monitoring the board for awhile and post if I can think of anything else.  Good luck.

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@MisterLoon I am so sincerely thankful for how much thought & time you've put into your responses.  Thank you so so much! 

It was my understanding that in arbritration you have less protections, the rules of evidence don't apply, and you have less of an opportunity to appeal ... But if you truly think arb would be my best route, then I trust your judgement and I plan to start researching today.

I haven't been able to find much about the law firm on this site.. but I do know that he has 2 public reprimands in Washington state (hes from Oregon)  one from Sno county and one from King.

Would you be ok with me sending you a PM? I have a question.. but don't want to give out too much specifics..

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Feel free to PM me.  I'll be happy to help if I can.  (Pretty much everybody on this board would say the exact same thing in my experience.)

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I probably should have posted this earlier but I'd forgotten about it:  Anyone dealing with Midland needs to download the consent decree they signed with the CFPB and also with some states AG's.  Some people have been having success getting Midland tossed because their cases have been found in violation of the consent decree.

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3 hours ago, MisterLoon said:

I probably should have posted this earlier but I'd forgotten about it:  Anyone dealing with Midland needs to download the consent decree they signed with the CFPB and also with some states AG's.  Some people have been having success getting Midland tossed because their cases have been found in violation of the consent decree.

 Do you remember which lawsuits were dismissed based upon the CFPB's order? 

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