alligatorgirl

Midland Funding Lawsuit in Florida

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Hi all,

I recently found out that I have an active lawsuit with Midland Funding. However, I found this out through a letter an attorney sent me advertising their services for the lawsuit. I then requested the documents online via my county's civil court online search to view the summons and claim. I still have yet to be served summons or even indication that they have been attempted to be served, online it says the summons were issued 10/13/17. The address on the documents is my dad's house and I have told him about the situation but he hasn't received anything. When I found out about this, I panicked because I am pretty young and 'new' at being an adult, so it was all very scary. As soon as I found out about this, I contacted Midland Funding to see if I could set up a payment plan. I also explained that I never received notice 30 days prior to the lawsuit that court action would be taken, which is a requirement under Florida statutes, and that I haven't received summons either. I did provide them with an updated address. They offered me a plan but said they wouldn't drop the lawsuit until the debt was paid. I accepted the offer verbally, but have yet to receive any confirmation or documentation that this plan exists. They were supposed to mail me a contract a week and a half ago and I have not yet received it. I've read a few of the threads here but I have a couple of more specific questions that I haven't seen answered. I know I kinda shot myself in the foot by calling them for a payment plan and thus accepting the debt, but I thought I would be able to resolve this without a court date. Really my concern at this point is trying to avoid paying their court fees on top of the debt. Is that even possible? 

-If I do not receive the summons before the pre-trial date, should I still go? Will this increase my chance of the case being thrown out?

-A few things I've read said that if they are unable to serve to the address they can try employers or publishing in the newspaper. Is that true?? What's the chance of that happening?

-Should I respond to the summons though they haven't officially been served?

-Really just any general advice on what I can do from here would be great. I have a little less than a month until the pre-trial date.This waiting game is really frying my nerves.

Thank you!

---

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'm not sure... the only other name I've seen on anything is Encore Capital Group Inc. The MCM/Midland Funding website says my account is now being serviced by them.

3. How much are you being sued for?

$1,596.27 plus cost of suit

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

Synchrony Bank

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

I haven't yet been served. Summons are supposed to go to my dad's house and he hasn't received anything. I received a letter from a local attorney that said they got the records online and included a copy of the summons. This was not through certified mail, either, just a regular envelope.

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

N/A

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

N/A

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?

I have an existing payment plan with them for a different account that I have been paying off for over a year. But I had not responded to anything regarding this specific account. After I learned of the lawsuit, I called them to negotiate a payment plan.

9. What state and county do you live in?

Florida, Leon

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

2015

11. When did you open the account (looking to establish what card agreement may be applicable)?

2011

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

5 years

Statute of Limitations on Debts

13. 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 have a Pre-Trial date set for 12/5/17

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

No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

No

16. 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?

5 days prior to the pre-trial date of 12/5/17

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

2 statements from OC, affidavit of sale from OC, bill of sale from OC, copy of letter from MCM to me notifying me of the sale of the account from OC (addressed to my dad's residence that I was not living at). Only identifying information on these documents is my name and past address, doesn't include OC account number.

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14 hours ago, alligatorgirl said:

-If I do not receive the summons before the pre-trial date, should I still go? Will this increase my chance of the case being thrown out?

They can't require you to appear until you are served.  The date they stated is a preliminary date, but if they don't serve you before then, the case will be continued until after you are served.  Keep an eye on the docket.  It's not unheard of for process servers to lie.

14 hours ago, alligatorgirl said:

-A few things I've read said that if they are unable to serve to the address they can try employers or publishing in the newspaper. Is that true?? What's the chance of that happening?

Yes, they can do this, but they will probably have to get the court's permission to serve you via publication and they court will require them to show they first tried to serve you by conventional means.  As with before, watch the docket for activity.  If they are granted "alternative service", it will probably show this online.

14 hours ago, alligatorgirl said:

-Should I respond to the summons though they haven't officially been served?

I would not but you can, in which case, you will have waived your right to service of process.

14 hours ago, alligatorgirl said:

-Really just any general advice on what I can do from here would be great. I have a little less than a month until the pre-trial date.This waiting game is really frying my nerves.

See below, but as long as you keep checking the online docket or call the clerk a day or two before the court date to see if they filed a certificate of service, I wouldn't worry too much about a default judgment.

14 hours ago, alligatorgirl said:

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

Synchrony Bank

This right here is your golden ticket.  Synchrony has one of the best arbitration agreements around.  First of all, it doesn't have a "small claims" exception so they can't claim the agreement doesn't apply to the suit they bring against you.  Second, the agreement says they will pay all arbitration fees if you ask them to.

The reason this is important is that arbitration will cost Midland about $3,000 just to get their case into arbitration.  You only owe $1,600.  Midland will drop this case like a hot rock as soon as the court says they have to go to arbitration to resolve the dispute.

So my recommended strategy (once you are served) is to prepare an Answer denying everything but your name and address and assert arbitration as an affirmative defense in the answer.  Then file a Motion to Compel Private Contractual Arbitration per the 'attached' card agreement.  If you don't have the original agreement (GE Capital, correct?), you can find a current one here -> https://www.consumerfinance.gov/credit-cards/agreements/  If you tell me what merchant this card this was for (Amazon, Dillard's, Lowe's, etc), I can probably find a the correct GE Capital agreement from 2011.

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21 hours ago, alligatorgirl said:

Hi all,

I recently found out that I have an active lawsuit with Midland Funding. However, I found this out through a letter an attorney sent me advertising their services for the lawsuit. I then requested the documents online via my county's civil court online search to view the summons and claim. I still have yet to be served summons or even indication that they have been attempted to be served, online it says the summons were issued 10/13/17. The address on the documents is my dad's house and I have told him about the situation but he hasn't received anything. When I found out about this, I panicked because I am pretty young and 'new' at being an adult, so it was all very scary. As soon as I found out about this, I contacted Midland Funding to see if I could set up a payment plan. I also explained that I never received notice 30 days prior to the lawsuit that court action would be taken, which is a requirement under Florida statutes, and that I haven't received summons either. I did provide them with an updated address. They offered me a plan but said they wouldn't drop the lawsuit until the debt was paid. I accepted the offer verbally, but have yet to receive any confirmation or documentation that this plan exists. They were supposed to mail me a contract a week and a half ago and I have not yet received it. I've read a few of the threads here but I have a couple of more specific questions that I haven't seen answered. I know I kinda shot myself in the foot by calling them for a payment plan and thus accepting the debt, but I thought I would be able to resolve this without a court date. Really my concern at this point is trying to avoid paying their court fees on top of the debt. Is that even possible? 

-If I do not receive the summons before the pre-trial date, should I still go? Will this increase my chance of the case being thrown out?

-A few things I've read said that if they are unable to serve to the address they can try employers or publishing in the newspaper. Is that true?? What's the chance of that happening?

-Should I respond to the summons though they haven't officially been served?

-Really just any general advice on what I can do from here would be great. I have a little less than a month until the pre-trial date.This waiting game is really frying my nerves.

Thank you!

---

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'm not sure... the only other name I've seen on anything is Encore Capital Group Inc. The MCM/Midland Funding website says my account is now being serviced by them.

3. How much are you being sued for?

$1,596.27 plus cost of suit

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

Synchrony Bank

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

I haven't yet been served. Summons are supposed to go to my dad's house and he hasn't received anything. I received a letter from a local attorney that said they got the records online and included a copy of the summons. This was not through certified mail, either, just a regular envelope.

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

N/A

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

N/A

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?

I have an existing payment plan with them for a different account that I have been paying off for over a year. But I had not responded to anything regarding this specific account. After I learned of the lawsuit, I called them to negotiate a payment plan.

9. What state and county do you live in?

Florida, Leon

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

2015

11. When did you open the account (looking to establish what card agreement may be applicable)?

2011

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

5 years

Statute of Limitations on Debts

13. 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 have a Pre-Trial date set for 12/5/17

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

No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

No

16. 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?

5 days prior to the pre-trial date of 12/5/17

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

2 statements from OC, affidavit of sale from OC, bill of sale from OC, copy of letter from MCM to me notifying me of the sale of the account from OC (addressed to my dad's residence that I was not living at). Only identifying information on these documents is my name and past address, doesn't include OC account number.

@alligatorgirl  Send a PM (private message) to @LawKitty   Just click on her name. She is a member here and a licensed FL consumer lawyer.  She has successfully defended quite a number of FL defendants like you. She has also offered free advice on this board. Her fees are reasonable and she takes payments. A consultation is free and there is no obligation.  As Harry said you can also arbitrate this, but I would at least talk to her first.  She is very pleasant and helpful.

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I would watch the court docket regarding service. If they haven't personally served you by pretrial date, the plaintiff will usually get an extension to try and serve you. If they know where you work, you could get served at work.

Pretrial will be all about settling and getting you to agree it's your debt and making payments or consenting to a judgment. Debt collectors love this because they don't want to have to prove their case. If you hire an attorney you will have a FAR greater possibility of getting Midland to dismiss, especially in a small claims case. Arbitration is one way to go but Midland suits can often be defended and even taken off your credit reports along with a dismissal with prejudice (generally with an attorney). If you're going to do it pro se, then read up on arbitration as others around here successfully used arbitration to defeat the lawsuits. One wrinkle is that if they sue on "account stated", they can often get around arbitration demands because the lawsuit isn't based on the catdmember agreement per se, but on the mailing of statements and you 'agreeing' that a certain amount is owed.  Account stated is the debt collector's favorite and most used cause of action too. Feel free to PM me if you have other questions as well.

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9 hours ago, LawKitty said:

I would watch the court docket regarding service. If they haven't personally served you by pretrial date, the plaintiff will usually get an extension to try and serve you. If they know where you work, you could get served at work.

Pretrial will be all about settling and getting you to agree it's your debt and making payments or consenting to a judgment. Debt collectors love this because they don't want to have to prove their case. If you hire an attorney you will have a FAR greater possibility of getting Midland to dismiss, especially in a small claims case. Arbitration is one way to go but Midland suits can often be defended and even taken off your credit reports along with a dismissal with prejudice (generally with an attorney). If you're going to do it pro se, then read up on arbitration as others around here successfully used arbitration to defeat the lawsuits. One wrinkle is that if they sue on "account stated", they can often get around arbitration demands because the lawsuit isn't based on the catdmember agreement per se, but on the mailing of statements and you 'agreeing' that a certain amount is owed.  Account stated is the debt collector's favorite and most used cause of action too. Feel free to PM me if you have other questions as well.

Thank you.  

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